*1 Staunton. Dingus
Victor v. Commonwealth.
September 19, 1929.
Absent, West, J. *3 opinion
Thе states the case. Kennedy, Long, D. F. E. Warren Wall and M. M. for plaintiff in the error. Attorney-General, Saunders,
John R. and Leon M. Attorney Bazile and Edwin H. Gibson, Assistant s-Gen- eral, for the Commonwealth. opinion J.,C. delivered the of the court.
Prentis, Dingus, The Victor has been found оf murder the first and sentenced to death electrocution. outstanding
The are, of facts the case he, that with men, traveling young several other automobile Coeburn, Virginia, Branch, from to Twin West Vir- ginia, journey and on stopped county, that in Russell privаte garage near the of T.H. Robins and entered it gasoline. the purpose stealing owner, for of Robins, discovered had broken into his garage began shoot, in the either air or in the garage, direction of the for purpose scaring the thе away. The robbers accused shot before he came out garage through door, the and after out, he came says, as he he through had thigh, been shot the shot and killed Robins. details,
We omitted some evidence of support accused himself is sufficient this state- ment. necessary
It is not assignments to refer all of error. The rules of criminal law sufficiently are to make repetition established constant unnecessary. Among assignments made the accused is that did he not have a fair and impartial trial.
It shown that during homicide occurred 23rd; night of June indignation there was much locality outrageous crime; at judge adjourned circuit court the term in another county two weeks and a special called term of the Circuit county days Court оf later, Russell two June 25th, purpose trying began *4 July the trial 2nd. The case was submitted to the jury July 4th,- and July the verdict 5th. returned prominent attorneys Three employed local were to attorney assist the the in for Commonwealth the prosecution. assignment,
In supрort of is shown that attorney Commonwealth, the appeal for the in his to jury, among things, the other said: the “Gentlemen of firing for the defendant there
jury: it had not been If deceased, killing his widow would the shot and mourning attorney for weeds.” The the here in not be highly objected improper to this statement accused and moved the court to instruct prejudicial, and it; disregard judge replied: “She to which the to it,” the' here, not mention and defendant you is need judge was asked to instruct excepted. Thereuрon the judge disregard re- jury to the statement. you and not mention plied: “I she is here need said it.” Parsons is so much like occurrence
This 68, 73, E. 138 Va. S. objectionable remarks being that there the difference attorney made, for the Common- were not рrosecu- wealth, employed one to assist but tion, only necessary repeat what that we think it agree said: “We cannot with the learned there judge, the remarks were not trial either jury to or he should have directed the dis- not regard permitted them. are Whatever liberties crime, appeal persons for who are counsel (though mercy there no evidence their clients n any appeal record), such in this to refer vicariously will those near and dear to them who suffer circumstances, prosecutor no under such has cor- not responding liberty. rely does The Commonwealth upon prejudice sympathy either or enforcement being its every laws. That normal human does sympathize with the widow and children of de- true, way in no assists ceased is this fact deter- mining guilt either the innocence charged passing with attention thereon The court should be thus distracted. of the assistant corrected this inadvertence *5 prosecutor. proved Facts which cannot be because argument. no for proper irrelevant can afford basis J. 177, 30 C. section 400.”
Again, attorney the Commonwealth’s said: jury, your want a “Gentlemen we verdict at say county hands that will to the criminals of and Wise county and the criminals Tazewell the criminals of Tennessee, Kentucky they and cannot make county playground.” Russell their may no
While be true that conviction should be solely a this, reversed because of such statement certain it is that the prosecuting attorneys should always in mind spеak bear not for themselves (cid:127) Commonwealth; every person charged with crime is entitled to have his case deter- solely mined produced the evidence at his trial. testimony no There is in this case as to criminals of county, Wise or cоunty, Kentucky Tazewell those of Tennessee; referring no such evidence to other against criminals could have been introduced had it been offered. The accused could punished neither be their crimes nor have his punishment iniquities. enhanсed because of their Even though usually alone sufficient reason for re- versal, judge always the trial restrain such statements, and require prose- irrelevant cuting attorneys arguments upon base their particular evidence case on triаl.
Again, attorney Commonwealth’s said jury: penalty. him “Give the death What does imprisonment life mean to criminal with pardon so easy?” objection an
The court overruled to this statement comment. without question
This court has had a precisely never- like *6 consider, this to so far as we know. We hаve no donbt, however, of its impropriety. The executive government this department not Upon was on trial. of occasion, an such a upon reflection such the executive department imposing as reason penalty the deаth justified could be should not any under cir- cumstances be tolerated. So far informed, as we are just general no there is of past criticism exercise clemency by any of executive Virginia. Governor of no suppose any There was reason to that Governor improperly pardoning would exercise power favor of the accused in this case. That there are clemency which executive cases should be exercised doubted, passed cannot be but suсh cases have entirely jurisdiction beyond juries. of courts and No urged impose should be to the death penalty upon any person attorney accused because the for the Common- pardons wealth thinks in this State are easily secured. Such remark is a upon reflection an in- dependent department government which the judiciary, acting officially, when independent should be enough to rebuke. highly
The remark unworthy occasion, should have judge, been rebuked the trial and was harmful to the accused. appropriate repeat
We think it what was said in 731, Mohler 111 Va. S. E. attorney 460: “The repre- the Commonwealth people State, who, of sents in their collective capacity, just are as anxious innocent men shаll acquitted be are that men shall con- be prosecuting attorney victed. The is selected for the purpose of representing pre- sentiment. sumption of person innocence attends an accused at every stage conviction, the trial until his attorney prosecuting respect this presumption. If, testimony presented has been and in the public duty, (cid:127)performance of his he concludes therefrom conviction, for a only that he should ask it is not his duty, right, up and, his sum the evidence argument, give his reasons based thereon justifies for bis conclusion such conviction.” attorney The mental attitude for the Common- in this wealth as indicated remarks, these ignores salutary these doctrines. exception
Another upon is based thе refusal court, upon motion of the give in struction No. 11. This is an instruction which is *7 given nearly always upon the.motion prosecutor of the every in homicide and while it has been under criticism, frequently it has been held entirely fco be Commonwealth, Sims v. apрropriate. 736, 134 Va. 115 382; Groety E. S. 135 Va.
S. E. 561. The instruction is to the effect every “that in presumed homicide this State is to be murder in the degree, and upon second is burden the Common to wealth elevate the offense to in murder the first degree, and the upon burdеn rests to defendant reduce the said offense from murder in the second a lower offense or to show justifi excuse or cation.” assigned
No reason is give refusal this accused, m otion upon instruction of the and under peculiar case it fаcts this was error to refuse it. If a there is reasonable doubt as to whether the accused degree, is of murder the first or second doubt should be resolved his favor. is case one which, for the failure of the court to restrain the impetuosity prоsecutor, might unbridled of the there verdict, a though they have been different found degree, the crime to be murder in the they might first imposed imprisonment penitentiary in the as his punishment. Under rule which debars the accused' invoking self-defense, here from the law of because he brought difficulty by on crime, his own and be- presumption arising cause of intent from the deadly of a weapon, probable use is not this court would reverse the verdict of murder in the first degree had not the record disclosed the harmful еrrors procedure in the to which we have referred. jury imposed
That penalty the death perhaps explained by is astounding case another circumstance to which our attention is asked. It denied, shown affidavits which are not that abоut p. July 4th, m. jury having eleven o’clock on failed agree, they and while deliberating, were a deputy (who keep together sheriff had been sworn to them to discuss the case with them nor permit any so), one else to do had retired for the night, they agrеed had upon verdict, before told he on them that the look-out for a mob to come to lynch Dingus, together Victor- with four persons robbery other accused connected with the garage, ’phone message and moreover statеd that a had from the been received mob that to know wanted agreed upon had verdict, whether and he *8 thought he, sheriff, deputy that “could hold the morning give off until and mob them a chance agree,” and made other statements of like character are set forth in detail which the affidavits. The following morning returned the verdict.
That conduct such as this of an official of the court severely condemned, and, brought be had it been of the trial final to the attention court before the setting judgmеnt, that it would have necessitated aside
855 no doubt whatever. there can be of the jury, the verdict occur long that matters has been held In this State it term, adjournment ring judgment final by affidavit into the record introduced cannot be affidavits otherwise, we will nоt consider these and so without dis cannot do so We parts the record. v. Allen disregarding precedents. these tinguishing or 66; 826, Harley v. Commonwealth, S. E. 114 Va. 77 648; 664, v. S. E. Thaniel 131 Va. Commonwealth, 259; 795, E. Oliver 111 S. Commonwealth, Va. 307, It is E. Commonwealth, 145 S. 309. 151 Va. in order to correct necеssary in this not from, where such but precedents, these wrong, depart a .induced probably to have are shown facts penalty, and the facts were (cid:127)impose the extreme to the trial presented to be until too late discovered would be considered court, probable it is clemency. certainly justifying the executive .as are shown the record of the errors which Because referred, opinion to reverse we are of which we have n new trial be judgment remand the сase .to according to law. had
Reversed. Concurring: majority I with the J., concur Holt, re- this case should be wherein it holds that opinion attorney for the. argument by the used versed.. penalty death to the effect possible that some imposed it was ought because to be any commute Virginia might improperly Governor history of our sentence, not warranted prison Virginia abused has ever No Governor State. ask that proper that counsel should It was power. returned, murder be of first verdiсt sought assigned punishment he which reasons *9 highly prejudicial. were For this reason and for no reason, other I think that the case should be reversed. J., Dissenting: fully While I in concur Campbell, the conclusion majority reached in the opinion that remarks reрresenting counsel the Commonwealth highly were a doubtful ease should reversal, lead to I am unable concur the con- clusion that the instant reversed, case should be the reason my opinion the record discloses that no other than a verdict of murder in the first could properly jury. been rendered