75 Va. 925 | Va. | 1882
delivered the opinion of the court.
The prisoner, Littleton Hatchett, was indicted jointly with Oliver Hatchett and Henry Carroll; Oliver Hatchett for the willful and malicious murder of Moses Young by poison, Henry Carroll and Littleton Hatchett, the prisoner, as accessories before the fact. It is stated in the petition that Carroll has been tried and acquitted. Oliver, who is charged as principal, had not been tried, but was still under arrest.
The court is of opinion that the evidence is insufficient to connect Oliver Hatchett, who is charged as principal with the perpetration of this crime, to warrant the conviction of the prisoner as an accessory before the fact.
The court is of opinion that the evidence is clearly insufficient to convict Oliver Hatchett, as principal, with administering the poison. It is in proof that Oliver Hatchett came to Osborne Horthington’s house on the evening of the night that Moses Young died, and asked to have his shoes mended. On being told by Osborne that he did not have time, he left in about five minutes, and went to the corner of the house towards Moses Young’s, whose house was about 200 or 250 yards distant. One of the witnesses for the Commonwealth, who was passing about that time, said he heard a strange voice, not of any one living there, enquiring the way to Moses Young’s house; but Osborne, who was also a witness for the Commonwealth, said no one asked the way to Moses Young’s house.
Ho witness testifies that Oliver Hatchett was at Moses Young’s house that night. Sally Young, the wife of Moses Young, testified that a stranger came to her husband’s house that night, and that after supper the stranger and her husband walked out, and pretty soon he came back in the house and in short time said he believed that pain in his side had gotten worse. And he pretty soon became worse, and said that the stranger had given him a drink out of a tickler, and that he believed he had tricked him, and his dying declaration was that he would be killed by the drink given
The court is of opinion that the court below did not err in refusing to give the prisoner’s third instruction to the jury | but that it did err in overruling his motion for a new trial. The court is of opinion, for the reasons heretofore given, to reverse the judgment of the court below, to set aside the verdict of the jury and to award the prisoner a new trial.
The judgment was as follows:
The court is of opinion, for reason stated in writing and filed with the record, that the judgment of the court below is erroneous; it is, therefore, considered that the said judgment be reversed and aunulled; and the court proceeding to render such judgment as ought to have been rendered by the court below, it is considered that the verdict of the jury be set aside and a new trial be awarded the prisoner.
Judgment reversed.