127 Va. 808 | Va. | 1920
after making the foregoing statement, delivered the following opinion of the court:
There are six assignments of error which will be disposed of in their order as stated below.
The testimony of these witnesses, as appears from the record, would have tended, at most, only to show that the deceased was actuated in what he did in the arrest and the taking of Mrs. Rucker to jail, and in the act of putting her therein at the time he was killed, by personal ill will and malice against her, and not by the bona fide purpose of discharging his duty as an officer. But even if it were granted that such was the motive of the deceased, the accused nowhere claims in his testimony that such motive in any way influenced his action in committing the homicide.
For the same reason stated in the consideration of the first assignment of error, there is no merit in this assignment of error.
There was testimony of witnesses for the accused, other than thát of himself, and also his own testimony, to the effect stated in this assignment of error, which testimony was introduced by the accused without objection on the part of the Commonwealth. Now in so far as such testimony was not “collateral” and was admissible in evidence in behalf of the accused, had it been obj ected to by the Commonwealth, the rebuttal testimony in question was unquestionably properly admitted as tending to show the non-habit of swearing as pertaining to the deceased, which was of direct probative value as evidence in contradiction of the testimony for the accused on the subject. 2 Wigmore on Ev., secs. 1001, 1003. And-
As said in 1 Wigmore on Ev., sec. 93: “Of the probative value of a present habit, or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning makes it clear enough.”
Again, Idem, sec. 376: “That a negative habit may be shown and not merely an affirmative one seems unquestionable, i. e., that a person systematically omits to do a certain thing * * ”
Such evidence, of habit or non-habit, is admissible, as indicating the probability of the doing or not doing of the act in question, on precisely the same principle that evidence of character or disposition is admissible as evidentiary of the doing or of the non-doing of a human act. 1 Wigmore on Ev., secs. 51, 55, 63, 68, 375.
As said in the learned work just cited (sec. 68): “When . the character offered is that of a third person, not a party to the cause, the reasons of policy (noted ante, sec. 64)
In the nature of things, in the progress of trials in the nisi prius courts, it would be too much to expect the judge to be more vigilant than counsel and to unerringly act in admitting testimony to which no objection is interposed. And it is well settled that if, at the instance of one party, evidence has been admitted, unobjected to, which is immaterial and should not have been admitted, “where such action is needed for removing an unfair prejudice which might otherwise ensue from the original evidence,” it is a proper
It is true that the holding in Bowles’ Case, 103 Va. 816, at p. 829, 48 S. E. 527, on the point under consideration (which case is cited and relied on for the accused), is contrary to the conclusion above reached; but that was only one among other grounds on which that case was reversed, and, as appears from the opinion, no authority was cited or before the court to sustain the view of the Commonwealth as to the admissibility of the evidence, and but brief treatment was given the subject in the opinion, so that it is manifest that the court did not feel that it was necessary to, nor did it fully consider it. In view of the authorities above mentioned which were not before the court in the Bowleá Case, we feel constrained to disapprove of the holding of that case on the point we have now under consideration, and such holding is hereby overruled. Our conclusion, therefore, is, that there was no error in the action of the trial court in admitting in rebuttal, as aforesaid, the evidence touching the non-habit of the deceased in the matter of profanity.
One of these instructions was to the effect that the deceased officer had no right to arrest Mrs. Rucker without a warrant, unless he had reasonable cause to suspect that a felony had been committed by her, and that the accused had the right, acting in defense of his sister, to resist an unlawful arrest of the latter.
The other instruction was to the effect that it was the duty of the deceased to have taken Mrs. Rucker, after her arrest, before a judicial officer without any unnecessary delay, where she might have obtained bail or have been committed to jail, as the case might be.
The refusal of these instructions was not error for the reason that neither of them were applicable to any material issue in the case. According to the testimony of the accused neither of these matters had any influence whatsoever on his conduct in killing the deceased.
According to the testimony for the Commonwealth of the undertaker, one or more of three bullets, which entered the body of the deceased, caused his death. A fourth bullet struck the right hand of the deceased, which the accused claimed was reaching for the hip pocket of deceased. The latter bullet “tipped” the end of the middle finger of the right hand and wounded the thumb of that hand of the de
After this witness left the stand the testimony for the accused and of the accused himself was introduced, to the effect that he was in a certain position when the shots were fired, and that the deceased was ip a certain position, which was different from that indicated by the testimony for the Commonwealth.
The positions of the bullet holes through the clothing, and of the right hip pocket, had a material bearing on the question of whether the accused was' in such a position that he could have seen “The bright metal looking like a pistol right then,” with the right hand of the deceased on it in his hip pocket, etc., etc., as he testified was the situation at the time he commenced shooting, and we find xno error in the action of the trial court in admitting the clothing as rebuttal evidence for the Commonwealth.
Of this assignment of error we deem it sufficient to say that we have, under Code 1919, sec. 6363, carefully considered all of the evidence in the case, and upon giving the weight to the decision of the jury upon the matters of fact dependent upon the evidence which is conflicting and which
Affirmed.