Harrison v. Commonwealth, 79 Va. 374

79 Va. 374 | Va. | 1884

Lacy, J.,

after stating the case as aforesaid, delivered the opinion of the court:

The statute provides that murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, is murder of the first degree; and that murder of the first degree shall be punished with death. Murder has been defined to be the wilful killing of any subject, whatsoever, through malice aforethought. Lord Coke says: “Murder is when a man of sound memory and of the age of discretion, unlawfully killeth, within any county of the realm, any reasonable creature, in rerum natura, under the king’s place, with malice aforethought either expressed by the party or implied by law, so as the party wounded or hurt die of the wound or hurt within a year and a day after the same.” Lord Mansfield defined it thus: “ Murder is when a man of sound sense unlawfully killeth another of malice aforethought, either express or implied. If the malice be express, the facts remain with the jury. If the malice is to arise from implication, it is a matter of law, the entire consideration of which resides with the court.”

If a man is to be taken to intend what he does, or that which is the necessary and natural consequence of his own act, which cannot be denied, then the plaintiff in error, when he pointed a loaded pistol at the deceased, some eight or ten feet distant, which he had carefully inspected and manipulated a few seconds before, and fired the same with deliberate aim, twice, thus shooting and killing the deceased, he only carried out a formed purpose with deliberate execution. And if malice may be inferred from the deliberate use of a deadly weapon in the absence of proof to the contrary, that then in this case the malicious intent seems to be established.

The plaintiff in error, as has been set forth, had a difficulty with the deceased on the 22d of November, in which he was slightly injured. On the 25th of the same month, alter seeking him on the 23d, and threatening to kill him on sight, the plaintiff in error, being himself in nowise assaulted or attacked,, approaches the deceased with a loaded pistol and challenges the deceased to a fair fight without weapons, which being declined upon the ground that the deceased was done with the fuss, he deliberately shoots the deceased and kills him. The deceased was practically unarmed, for while he held in his hand an axe, which he was using to chop wood, he made no hostile use of it, and was not close enough to strike the prisoner with it, unless he had thrown it. It seems difficult to imagine a more deliberate killing.

But the plaintiff in error seeks to justify his act upon the plea of self-defence, alleging that the deceased was a person of a fussy and dangerous character, and adduces evidence to that effect. Another error assigned by him, is that a witness was not allowed to answer the question propounded by the prisoner, “Did you consider the deceased a person of dangerous character?”

It cannot be contended that the fact that the deceased was a dangerous character, and fussy and quarrelsome, would justify any person to kill him who should feel so inclined, without provocation or any cause of offence whatever. Evidence of the bad and dangerous character of the deceased has been held admissible, and properly so under some circumstances in many states of this country. If a case of self-defence is prima facie made out by the defendant on a trial for homicide, he has been held entitled to show that the deceased was a man of superior strength and of brutal and ferocious character. It. has been so held in many of the states.

Lewellen v. The State, 6 Tex. Ap. 475; Hudson v. The State, 6 Tex. Ap. 565; People v. Murray, 10 Cal. 309; State v. Jackson, 33 La. Ann. 1087; Shivey v. State, 58 Miss. 868; Rippey v. State, 2 Head. 217; Payne v. Commonwealth, 1 Meto. Ky. 370; Roberts v. State, 68 Ala. 158; Haynes v. The State, 17 Ga. 465; State v. Smith, 12 Rich. 430; State v. Sackett, 1 Hawks, 210; State v. Keene, 50 Mo. 357; Davidson v. People, 4 Col. 145; State v. Scott, 24 Kan. 68; State v. Dumphey, 4 Minn. 438; Com. v. Barnacle, 134 Mass. 216; State v. Nett, 50 Wis. 524; State v. Collins, 32 Iowa, 36; Brownell v. The People, 38 Mich. 732; State v. Hawley, 4 Harr. 562; Patterson v. State, 66 Ind. 185; Com. v. Zeibert, Wharton on Hom. 506.

While such evidence has been admitted in many cases where the prisoner had been assaulted, and when the defendant appeared to have been acting in self-defence in striking the fatal blow, yet it would be no palliation of an assault by the prisoner, that the prisoner believed that the person attacked and killed by him was a dangerous person. And where no case of self-defence has been made out, it has been decided, in numerous cases, that such evidence was inadmissible. And in such a case, when the prisoner himself made an attack and killed his antagonist, without other danger to himself than such as he had himself deliberately sought by his own violent and unlawful conduct, such evidence is properly excluded. See State v. Field, 14 Me. 244; People v. Lamb, 2 Keyes, 364; Eggler v. People, 56 N. Y. 642; State v. Hogue, 6 Jones, N. C. (L.), 381; State v. Dumphey, 4 Min. supra; People v. Murray, 10 Cal. supra.

In this case evidence of the dangerous character of the deceased was admitted by the court, and this was not an error of which the plaintiff in error can complain., Such evidence could only be admitted of the general reputation of the deceased in a proper case. That being matter of public notoriety, the prisoner is presumed to have had knowledge of it and to have been put in greater fear of his life being taken when assaulted by such a person, or of suffering serious bodily hurt. But it could not, upon any such ground, have been supposed that the opinion of a particular witness as to the dangerous character of the deceased, could have been known to the defendant and have influenced his action. And the court did not err in excluding the question set forth in the first assignment of error here, and the said exception must be overruled.

Upon the whole case we are of opinion that there is no error in the judgment complained of, and the same must be affirmed.

Judgment aeeirmed.