Fields v. Commonwealth

129 Va. 774 | Va. | 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The assignments of error raise the questions which will be disposed of in their order as stated below.

[1] 1. Does the indictment sufficiently charge the overt acts done towards the commission of the offense?

This question must be answered in the affirmative.

The indictment is informal in some respects. It, however, follows the statute in its use of the word “attempt,” and further charges that the attempt was “to commit the crime of murder,” and that the overt acts done towards the commission of that offense were, in terms or in substance, that the accused, on a certain day, feloniously, willfully and of her malice aforethought, did discharge and shoot, at and towards one David Tabb, a pistol, then and there held in her hand, charged and loaded with gun powder and leaden bullets, she being at the time of the shooting close enough to said Tabb, with respect to the range of the pistol, to have rendered the shooting at and towards said Tabb effective of the aforesaid attempt to commit the crime of murder.

Concerning the overt acts in question, we have here a similar situation involved in Cunningham’s Case, 88 Va. 37, 13 S. E. 309, where the indictment under consideration was for an attempt to commit rape and was found under the same statute concerning attempts as that under which the indictment was found in the instant case. There the indictment was held sufficient in its charge of the overt acts done towards the commision of the offense, although it merely charged an assault, without charging any of the specific acts constituting the assault, the indictment before us charges the acts constituting the assault and therefore both charges the assault and descends into the particulars of that charge. A fortiori, under the ruling in the Cunningham Case, the indictment in the instant. case sufficiently charges the overt acts in question. See also Broaddus Case, 126 Va. 733, 101 S. E. 321.

[2] 2. Did the indictment inform the accused whether she was charged with the attempt to murder David Tabb, or some one else?

We are of opinion that the indictment plainly charges and hence informed the accused that she was charged with the attempt to murder David Tabb.

The following position is taken for the accused in the • petition for the writ of error, namely: “The indictment first charges an ‘attempt to commit the crime of murder,’ alleging the same in the. form of a conclusion, * * * then goes on by descriptive language, and alleges that the accused fired a loaded pistol at and towards one David Tabb * * ' but nowhere is the allegation made that the attempt was to murder David Tabb or assault him. We submit that the descriptive language is not sufficient to support the conclusion of the first part of the indictment that the accused attempted to commit the crime of murdering David Tabb.

The allegations of the indictment must be read as a whole. When so read we think they unmistakably charge not only the conclusion in the first part of the indictment that the accused attempted to commit the crime of murdering David Tabb, but also, where they descend to the particulars of fact on which that conclusion is based, charge unmistakably that the attempt was to assault and murder David Tabb.

[3] 3. Is the indictment invalid because it fails to specify that the murder alleged to have been attempted was murder in the first degree?

The question must be answered in the negative.

[4-7] The petition of the accused correctly takes the position that the intent to kill is an essential element of the crime of murder in the first degree. See Williams’ Case, 128 Va. 698, 104 S. E. 853, and authorities cited. And it is said in the petition that “The indictment says that the accused fired a pistol at and toward David Tabb while within range, but does not allege that the intent existed to kill him.” But, it is the settled law of this State that an indictment for murder need not expressly allege the intent to kill, and that an indictment for murder at common law, (which does not expressly charge the intent to kill), is valid and sufficient to support a verdict of murder in the first degree, if the evidence introduced on the trial is sufficient to establish that the murder was of that degree. Livingston’s Case, 14 Gratt. (55 Va.) 592, 596; Cluverius’ Case, 81 Va. 787. On the same principle, we are of opinion that an indictment for an attempt to commit murder at common law is valid and sufficient to support a verdict, such as that rendered in .the instant case, convicting the accused of an attempt to commit murder in the first degree, if the evidence was sufficient to prove the commission of that crime. As the accused has not brought before us the evidence introduced on the trial, we must presume that it was sufficient to establish that the attempted murder was murder of the first degree. Therefore, we are of opinion that the indictment is valid in the particular in question.

We come now to the only question raised by the assignments of error which remains for our consideration, namely:

[8, 9] 4. Is the verdict invalid because it does not expressly appear therefrom that the jury found the accused guilty of the attempt to commit murder of the first degree ?

This question also must be answered in the negative.

It is true that under the statute the jury could not in this case have lawfully fixed the punishment named in the verdict, unless they in fact found the accused guilty of an attempt to commit murder in the first degree. But, in the absence of the presentation to us either of the evidence or the instructions, we must entertain every reasonable presumption in support of the validity of the action of the jury and must conclude that the attention of the jury was prop.erly called to the issue as to the degree of the attempted crime, and that they in their verdict responded to that as well as to all the other issues in the case which affected the correctness of the verdict. Even in civil cases, a general verdict is presumed to be responsive to all the issues in the case affecting the correctness of the verdict (Burks’ PI. & Pr., sec. 300, p. 535), and it is only where it affirmatively appears from the record that it is uncertain whether the verdict responds to all such, issues that it will be held to be invalid. Winn Bros. & Baker, Inc., v. Lipscombe, 127 Va. 554, 103 S. E. 623. This rule is still stronger in criminal cases, for reasons which we need not enter into here.

The case will, therefore, be affirmed.

Affirmed.