111 Va. 877 | Va. | 1911
delivered the opinion of the court.
In this case we are asked to review a judgment pronounced against the plaintiff in error, whereby he was sentenced, in accordance with the verdict of the jury, to confinement in the State penitentiary for the term of eighteen years, for the murder of a child seven years of age.
Taking up the assignments of error in their order, we are of opinion that the demurrer to the indictment was properly overruled. The ground of this objection is that the indictment does not state the means whereby life was extinguished, or the character of the instrument or weapon with which the homicide was committed.
The first count of the indictment charges that the prisoner
We are further of opinion that the circuit court did not err in refusing to compel the attorney for the Commonwealth to make an opening statement of the case to the jury. There is no rule of law requiring this to be done. The statute confers the right to do so, but does not make it obligatory upon either party to make an opening statement. Code, 1904, sec. 4029-a.
We are further of opinion that the testimony admitted by the court, showing that the prisoner whipped the deceased and her brothers several months before the date of the crime charged, was immaterial and without prejudice to the accused. It does not appear that the whipping on the occasion mentioned was excessive, or that the plaintiff in error, in administering the punishment, exceeded, in any manner, his lawful authority as a teacher. The evidence was irrelevant and should, properly, have been excluded, but it is clear that the prisoner was not and could not have been injured by this allusion of the witness to a previous lawful act done by him.
We are further of opinion that the court did not err in admitting the testimony of Dr. Tayloe. This witness was introduced as a medical expert. He testified that upon the post mortem examination of the deceased he found her bladder in a ruptured condition, and that in his opinion rupture of the bladder was the cause of her death. Witness further testified that he found an abrasion of the skin on the abdomen of the
■ This evidence was objected to on the .ground that it was irrelevant, and because the witness was asked for an opinion which did not require the peculiar knowledge of an expert.
The subject of inquiry was one about which the medical expert could speak more advisedly than any other. Such evidence is permissible wherever peculiar skill and judgment is necessary to elucidate a particular subject. The post mortem had disclosed rupture of the bladder to be the cause of the death. This expert witness traces that result to a cause, saying that, in his opinion, the rupture of the bladder was produced by the same force which caused the abrasion on the abdomen. This evidence tended to throw light on the subject of inquiry, and was proper to go to the jury to aid them in 'reaching a conclusion. Wigmore on Evidence, Vol. 3, p. 2559, sec. 1923.
We are further of opinion that the court did not err in admitting the testimony of Doctor Chinn. This was the evidence of a medical expert, and was to the same effect as that of Dr. Tayloe. What has been said with respect to the admissibility of the latter’s testimony is equallv applicable here and need not be repeated.
We are further of opinion that the court did not err in admitting the evidence of the witness, Louis Thompson. This witness .was a boy nine years old, and his testimony is objected to upon the ground that he was not of sufficient age, intelligence and maturity of mind to understand the nature and obligation of an oath, or to be legally responsible for his conduct.
We are further of opinion that there was no error in the instructions under which the case was submitted. There was sufficient evidence before the jury to sustain the instructions, and it is admitted that they state sound propositions of law.
The last assignment of error is that the circuit court refused to set aside the verdict of the jury as contrary to the law and the evidence. The accused was a colored school teacher, twenty-four years of age. In support of the verdict the record shows that the deceased, a little negro girl seven years of age, and her two brothers, aged respectively, nine and eleven years, attended the school presided over by the prisoner as teacher; that on March 23, 1909, when the hour for recess arrived,' the prisoner dismissed all of the school except the deceased and her nine year old brother; that a short while thereafter he told the brother to go out. The boy testifies that as he was going out the prisoner had his sister across his lap, whipping her with a switch; that he did not go at once to where the children were playing, but first went around to the back door of the school house and looked through a crack in the door, and saw that the prisoner had the deceased lying with her face on the floor beating her with a switch between two and three feet long and as large at the butt end as his third finger; and. that the child was crying and the prisoner telling her to hush up. It appears from the evidence that when the school re-assembled the deceased, who was still in the school room, looked badly, was perspiring and trembling; that the prisoner told her that she had better move farther from the stove, and she moved to a seat by her older
Without comment upon the evidence, it is sufficient to say, that, upon well settled principles, the verdict in this case, which is based upon it, cannot be disturbed.
The judgment complained of must, therefore, be affirmed.
Affirmed.