1 Va. Dec. 423 | Va. | 1881
delivered the opinion of the court.
This is a prosecution of the plaintiff in error, by the commonwealth for the murder of Gabriel Gwyn, and comes
Four errors are assigned by the prisoner — the plaintiff in error, as grounds for reversing the judgment and sentence of the county court, and awarding him á new trial.
The first is, in refusing to allow the testimony of Maria Gwyn, taken before the coroner, to be read upon the trial. Maria Gwyn had removed, after her testimony had been taken by the coroner, from the state of Virginia, where the homicide was committed, and was beyond the process and jurisdiction of the court. She had not been recognized by the coroner to appear as a witness to testify on the trial, and though it appears that efforts were made by the prisoner through his counsel to procure her voluntary attendance, she was not present at the trial, and the prisoner, by his counsel, offered to read her testimony, as taken by the coroner, to the jury; which was objected to by the commonwealth’s counsel, and was not admitted by the court. To which ruling of the court, the prisoner by his counsel excepted.
it is said by an eminent author (Taylor on Evidence, 1 vol., § 472) that “no case need be cited to establish what is admitted on all hands, that if the witness be proved to be dead, secondary evidence of his statement on oath in a former trial between the same parties, will be received as of course.” And that the ground of admitting secondary evidence in civil proceedings seems equally clear, when it is proved that the witness is actually residing in some place beyond the jurisdiction of the court-, § 473. But the same
If a witness who testified in a civil action has since died, evidence of what he testified is admissible in a subsequent trial of the same case, is a rule which universally prevails. And if he be still living, but has removed from the country, and is beyond the jurisdiction of the court, the current of modern authorities hold that such evidence is admissible in a civil action.
Whether, if a witness be dead, his testimony on a former trial would be admissible in criminal proceeding, is a question which does not arise in this case, and upon which we express no opinion. Some of the American states hold, that if the witness be living, and is beyond the jurisdiction of the court, his testimony on a former trial, in a criminal proceeding may be received. But a different rule has prevailed in this state.
In Finn’s case, 5 Rand. 701, the question was decided by the general court, as far backas the year 1827 ; and it was held that in a criminal prosecution, evidence of what was testified by a witness before the called court, was not admis
Twenty-six years afterwards the same question was raised in Brogy’s case, and decided by this-court (10 Gratt. 722, 732), and the decision in Finn’s case was reviewed and re-affirmed. Judge Allen, in whose opinion, on this point, all the judges concurred, remarked that “this decision has never been controverted in Virginia. The whole criminal code has since undergone a revision, but the rule in Finn’s case has been acquiesced in, both by the courts and the legislature. I do not think it necessary, therefore (he says), to go into the enquiry whether the rule was originally founded on proper principles or not. The rule has been established and recognized, and, I think, should be adhered to.” Twenty-eight years have elapsed since that decision was -made, and more than a half century since the decision which it reiterated. In the meantime, our criminal law has undergone another revision, and the rule established by those cases has been acquiesced in. We feel that it would be a work of supererogation in us, to inquire into the correctness of the principles upon which that rule was originally founded. If any change is made, it should be by legislation, and not by judicial decision.
For the foregoing reasons, our conclusion is that the first assignment of error is not tenable.
The second assignment of error is the refusal of the court to allow the witness, William Roberts, to answer the questions propounded to him as set out in bill of exceptions No. 3. What the answer of Roberts would have been does not appear, but the prisoner insists that if favorable he was entitled to the benefit of it, as it would have tended to explain the circumstances under which the difficulty occurred, and rebutted the presumption of malice. This assignment of error raises the question, whether it is competent for a person charged with the crime of murder, to exculpate himself, by proof of declarations which he himself made to another before he committed the homicide, and at a distance of a mile
The third assignment of error is the refusal of the court to allow the witness, Price Robinson, to answer the question propounded to him as set out in bill of exceptions No. 4.
It appears from the bill of exceptions that the witness, Price Robinson, was introduced by the commonwealth, who proved by him that about 8 o’clock on the 5th of January, 1880 (which was the night the homicide was committed), the prisoner came to his house, and exhibited a knife and whetted the same on his boot. Upon cross-examination, the witness proved that prisoner came to his house to get him to go home with him. And the prisoner then asked the witness the following question: “When the prisoner came to your house did he not say to you that two men had come to his house that evening from North Carolina and had threatened his life, and that he wanted you to go home with him to protect him ?” This question the court refused to allow the witness to answer, and the prisoner excepted.
The commonwealth had proved an act of the prisoner, the whetting of his knife, which taken in connection with the facts set out in the first bill of exceptions, tended to prove that the homicide committed by the plaintiff was perpetrated with premeditation and malice. The question propounded by the prisoner was designed to explain the character and purpose of the act proved by the commonwealth, by the declarations of the prisoner made at the time the act was done, for the purpose of repelling the inference which the jury would be likely to deduce from the act itself unexplained.
Verbal and written declarations are admissible as constituting a part of the re a gestas. As such they are properly admissible when they accompany some act, the nature, object, or motives of which are the subject of inquiry. In such cases, words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best means of ascertaining the character of such equivocal acts as admit of explanation from those indications of the mind which language affords. The language of persons at the time of their doing a particular act, in the same manner as their demeanor or gesture, is more likely to be a true disclosure of what was really passing in their minds, than their subsequent statements as to their intentions, even if such statements would not be excluded on other grounds. They are a part of the res gestos,. But to be such the declarations must have been made at the time of the act done. And so they constitute one transaction. (1 Phillips on Evidence, 5 Amer. Edi., with Co wen & Hills and Edward’s notes, top p. 150, side p. 185, and note 8v.)
The question propounded by the prisoner called for an answer from the witness, which, if in the affirmative, would have disclosed the declarations, if any, made by the prisoner, at the time he was doing the act, which the commonwealth had proved against him; and which might have tended to prove the character, motive, and purpose of that act. We are clearly of opinion that it was error not to allow the witness to answer that question. Whether the answer would have availed the prisoner, it is not for us to say, but will be for the jury to judge. We can only say that the
The fourth assignment of error is the refusal of the court to set aside the verdict and grant the prisoner a new trial. This assignment is upon the first bill of exceptions, which sets out all the evidence, which the court certifies were all the facts proved in the cause, and that the prisoner excepted to the opinion of the court overruling his motion to sot aside-the verdict and grant him a new trial, upon the ground that the verdict was contrary to the law and evidence.
The court is of opinion that as the case goes back, upon the ground of the exclusion of evidence which ought to have gone to the jury upon the former trial, and the prisoner is to have a new trial, it is proper that they should refrain from comment upon the evidence as it is disclosed in the first bill of exceptions, and from an expression of opinion on the fourth assignment of error, so that the jury may be free to pass upon the evidence submitted to them upon the new trial, uninfluenced and unbiased by the opinion of the court upon the facts as they now appear.
The court is of opinion for the reasons given and for the cause hereinbefore stated to reverse the judgment of the county court of Grayson county, to set aside the verdict, and to grant a new trial, and to remand the cause, with instructions to that court, that if upon said trial, the commonwealth should again introduce the evidence set out in the third bill of exceptions, and the prisoner should again propound the question to the witness set out in said bill of exceptions, that he be allowed and required to answer the same.
Judgment reversed.