98 Va. 845 | Va. | 1900
delivered the opinion of the court.
The plaintiff in error was found guilty of murder in the second degree and sentenced to the penitentiary for a term of five years.
The first error assigned to the rulings of the trial court was its refusal to allow the character of the deceased as a dangerous man to be shown. Two witnesses were asked if they knew the reputation of the deceased as a dangerous man; they stated that they did, but when asked what that reputation was, the court, upon the motion of the attorney for the Commonwealth, refused to allow the questions to be answered. What the witnesses were expected to testify as to the reputation of the deceased, is not shown by the bills of exceptions.
In order that this court can pass upon the action of the trial court rejecting or excluding evidence, its materiality must be shown. Where a question is asked and the witness is not permitted to answer it, the bill of exceptions should show what the party offering the witness expected to prove by him. If the witness is permitted to answer, and the answer is excluded, the bill of exceptions should show what the answer was; otherwise,
But if the bill of exceptions had shown that the defendant expected to prove that the deceased had the general reputation of being a quarrelsome, vindictive' and brutal man, we do not think that such evidence was admissible. Placing the most favorable construction upon the evidence of the accused, he and the deceased were engaged in a mutual combat, commenced with their hands and afterwards continued with rocks, both parties reaching for rocks at the same time. Prom this combat the accused made no effort to retire, but pursued the deceased and threw the rock which killed him, whilst he was moving away from him. The accused had not only not made out a prima facie case of self-defence, as was thought necessary in Harrison's Case, 79 Va. 374, as a condition pi*ecedent to the right to introduce evidence of the dangerous character of the deceased, but the evidence did not tend to show that the defendant did the killing in self-defence. This being so, under all the authorities, the evidence was clearly inadmissible. Wharton’s Cr. Ev., sec. 84; 2 Bishop’s Or. Procedure, secs. 625-6, 629.
The next error assigned is the giving of Instruction Ho. 9, asked for by the Commonwealth. That instruction is as follows:
“ That on a trial for murder, the law of self-defence is the law of necessity, and the necessity relied on to justify the killing must not arise out of the prisoner’s own misconduct; and if the jury shall believe from the evidence that the prisoner, Charles Jackson, assaulted the deceased, and thereby brought about the necessity of killing the deceased, should they believe there was any such necessity, then the prisoner cannot justify the killing of the deceased by a plea of necessity, unless he was without fault in bringing that necessity upon himself.”
This is clearly the law. It was so held in Vaiden’s Case, 12 Gratt. 717, 729-30. Judge Lee, who delivered the opinion of the-court in that case, said: “ With regard to the necessity that will justify the slaying of another in self-defence, it should seem that, the party should not have wrongfully occasioned the necessity; for, a man shall not in any case justify the killing of another by a pretence of necessity, unless he were without fault in bringing that necessity upon himself.”
This decision has been followed and the language of Judge Lee quoted approvingly by this court in subsequent cases (Lewis’ Case, 78 Va. 732; Honesty’s Case, 81 Va. 298-9; Clark’s Case, 90 Va. 369), and is fully sustained by the later, as well as the older, text-writers. 1 Minor’s Cr. Law, 43; 1 Bish. New Cr. Law, sec. 865; 1 Whar. Cr. Law, sec. 485 (9th ed.); Kerr on Law of Homicide, sec. 179; 1 Hales P. C. 482.
In Hash’s Case, 88 Va. 172, a somewhat different doctrine
The giving of Instruction Yo. 8, asked for by the Commonwealth, is assigned as error.
This assignment of error was practically abandoned in the oral argument of the case, and properly so, as the instruction complained of was a correct statement of law and applicable to the case. 1 Minor’s Cr. Law, 46, and cases cited: 2 Bishop’s Cr. Law, sec. 697.
The giving of Instruction Yo. 10 for the Commonwealth is assigned as error. It is as follows:
“The court instructs the jury that if they believe from the evidence that the prisoner, Charles Jackson, assailed the deceased, and a combat ensued, and in such combat the prisoner killeddhe deceased, and if they shall further believe that the first assault was made by the prisoner upon the deceased with a preconceived design to kill or to inflict great bodily harm, then the malice of the first assault, notwithstanding the violence^ with which it was returned, communicates itself to the last act of the prisoner, and the killing is murder.”
The objection urged to this instruction is that there was no evidence upon which to base it. In this view we cannot concur. There was evidence tending to show that the accused had grossly insulted the deceased, and made an assault upon him; that
The court refused to give instructions numbered 4, 5 and 6, offered by the accused, and this is assigned, as error.
These instructions are all based upon the theory that the accused, when he killed the deceased, was resisting an attack made upon him by the deceased, and killed him in self-defence. The most favorable construction that can be put upon the prisoner’s own evidence, as before stated, does not show that the deceased made an attack upon him, but, at most, the affray commenced as a mere fight, or mutual combat, first with the hands and afterwards with rocks, and that at no time did the accused attempt to quit the combat.
In such eases, the right of either party to justify or excuse himself on the ground of self-defence, if he kill the other, is stated by Mr. Bishop, as follows: “ If a mere fight or an assault, not murderously meant, is followed up till the conflict is for blood, neither par[y can avail himself of the perfect defence by killing the other, until he has endeavored to extricate himself by ‘retreating to the wall,’ as the old phrase is.” *****
“ Oases of mutual combat are those in which this duty of ‘retreating to the wall’ oftenest appears. Two men being in the wrong, neither can right himself except by ‘retreating to the wall.’ So that, when one unexpectedly finds himself so hotly pursued by the other that he can save himself only by taking the
In Clark's Case, 90 Va. 360, 368, it was held that it was a principle of the criminal law that,, where death ensues on a sudden provocation or sudden quarrel, without malice prepense, the killing is manslaughter, and in order to reduce the offence to killing in self-defence, the accused must prove two things—viz.: (1) That before the mortal blow was given, he declined further combat and retreated as far as. be could with safety; and (2) that he killed the deceased through the necessity of preserving his own life, or that there was reasonable ground to believe that the killing was necessary to preserve his own life, or save himself from great bodily harm. Tested by these principles, it is clear that the instructions refused ought not to have been given. The accused not only did not decline further combat and retreat, but pursued and killed his adversary.
The remaining assignment of error is to the action of the court in refusing to set aside the verdict of the jury because it was contrary to the law and the evidence.
. Sufficient reference has already been made to the evidence to show that the verdict of the jury was not contrary to the evidence, and, as we have seen, the court committed no error of law in the trial of the case.
The judgment complained of must be affirmed.
Affirmed.