86 Va. 740 | Va. | 1890
delivered the opinion of the court.
The plaintiff in error was jointly indicted with one James Wheeler at the August term, 1889, of the county court of Brunswick county, for the robbery of Mansfield Moore, in the
The errors assigned are : 1. “ The court erred in sustaining the demurrer to the special plea of the prisoner, filed at the September term, 1889, of the county court.” This plea set up as defence the fact that the jury, failing to agree, was discharged without the prisoner’s consent and against his protest.
There is nothing in the record to show that the prisoner
Wright’s case, 75 Va., is an adjudication of this statute; and in that case, reviewing the cases of Williams v. Commonwealth, 2 Gratt., and Dye’s case, 7 Gratt., Judge Christian, speaking for this court, says : “ There can be no tpiestion, therefore, of' the power of the court, when it became satisfied that the jury could not agree, to withdraw a jnror without any consent on the part of the prisoner, ¿ndto discharge the jury and continue the ease.” We think that the court did not err in sustaining the demurrer to the plea, and that this assignment of error is not well taken.
The second assignment of error is to the ruling of the court allowing Armistead Chavis to testify to the jury statements made by the prosecutor, Mansfield Moore, on his arrival at the house of said Chavis on the night of July 11th, 1889, after the alleged robbery of the said Moore, as evidence to sustain the issue on the part of the commonwealth. To wdiich introduction the prisoner objected, as set forth in his bill of exceptions Ho. 1.
Tn the statement of facts certified,it appears, “after the robbery of Moore as aforesaid, the persons so identified as the prisoner, and Harrison Jones went back in the direction of the gate Moore had just passed through. • As they went off, Moore said to them: ‘ God damn you, I know you, and I intend to have you in jail before morning.’” “Moore, after being-robbed, went directly to the residence of Armistead .Chavis,, who had retired for the night, and who resides about three hundred yards from the scene of the robbery. He w^as aroused
This statement is inadmissible, as a complaint made by the prosecutor recently after the outrage had been perpetrated, the crime of robbery not being within the exception to the rule of law which forbids the admission of hearsay evidence. But the attorney-general argues, and the circuit court decided, that this statement of Moore to Chavis was admissible evidence as part of the res gesta',.
Wharton’s Criminal Evidence, 9th edition, section 26, says : “As soon as we pass the line which distinguishes between the transaction talking of itself, and talking as modifying the transaction—in other words, as soon as we pass the line between the time of the transaction and the time that follows it, we have no limits that can be imposed. If we are to receive declarations made ten minutes after a transaction, we must receive declarations made ten years afterwards. The impulses of anger, or it may be of ungrounded suspicion, may, in many minds, operate even more effectively and passionately, ten minutes after an injury, than they would after ten years had elapsed.” And section 296, same author: “And the res gestaare not to be construed as extending beyond the immediate emanations of the litigated act.”
In Haynes’ case, 28 Gratt., 946, the statement of the prosecutor, that he had been robbed, without even naming the person who robbed him, made to the witness, Disney,immediately after the event and only three or four doors from the place of the robbery, was decided by this court not to be admissible evi
. “ It would he dangerous, to the last degree, to permit a party making a criminal charge against another, to support his own evidence by proof of declarations made by him, subsequent to the alleged crime.. The adjudication of the rights, and the protection of the liberties of the citizen, require that mere hearsay evidence should be excluded; and that the court,-in every case, should confine the testimony to the issue made by the pleadings, and to that character of evidence which is legal and admissible under the settled principles of the laws of evi•deuce.”
In Kirby's case, 77 Va. (2 Hansbrough), Mayo, immediately upon the bring of the pistol with which lie was shot through the head, put his hand to his face, felt the blood running, and exclaimed, “ Oh my, you have killed me! ” and, running out the door crying “murder,” walked around the house to the door of Truman Richardson’s room in the same house, a distance of only eighty feet-, and fell into the arms of Richardson, saying, “ I am shot; William Kirby has shot me.” This case is, in its circumstances, so widely and essentialty different from the case under review, that it does not. conflict with the view that the declarations of Moore, the prosecutor, made to Chavis, a quarter of a mile away from the scene of the alleged robbery, and ten minutes after the event, and after he had saluted the retreating robbers in the distance with the angry imprecation, “ God damn you, I know you, and I intend to have you in jail before morning,” was not admissible evidence, as part of the res gestee, upon the trial of the plaintiff in error, and that it was improperly admitted by the court.
There are other errors assigned, but as they are the same or
The judgment of this court is, that the judgment of the circuit court of Brunswick county, complained of, is erroneous, and that both it and the judgment of the county court must be reversed and annulled, the verdict of the jury set aside, and a. new trial awarded.
Lacy, J., dissented.
Judgment reversed.