144 Va. 594 | Va. | 1926
delivered the opinion of the court.
At the October term, 1923, of the Circuit Court of Essex county, a grand jury returned an indictment against Milton Lee, charging him with attempting to murder one C. Ryland Loving, as follows:
“The jurors of the Commonwealth, in and for the body of the county of Essex, and now attending the said court at its October term, 1923, upon their oath present that Milton Lee on the._______________________day of ................................................, 1923, in the county aforesaid, with malice aforethought, did unlawfully and*597 maliciously attempt to commit the crime of murder by then and there attempting with a shot gun, loaded with gun powder and leaden bullets, with which he, the said Milton Lee, was then and there armed, to kill and murder C. Ryland Loving, and in such attempt, having previously expressed to the said C. Ryland Loving an intent so to dp, he, the said Milton Lee, did go to his home and arm himself with the said shot gun, loaded as aforesaid, and go upon the premises of R. A. Loving, which was the home of the said C. Ryland Loving, with the intent then and there feloniously and maliciously to kill the said C. Ryland Loving with the said shot gun then and there in his possession, and in the further attempt to commit the said offense' with the said shot gun then and there in his possession, loaded as aforesaid, he, the said Milton Lee, did creep around the corner of the house seeking the said C. Ryland Loving, him to kill and murder, by stealth, and further did attempt to shoot off and discharge the said shot gun in the attempt to commit the said offense, against the peace and dignity of the Commonwealth of Virginia.”
The accused was tried on the 17th day of June, 1924, found guilty by the jury and his punishment, fixed at twelve months in jail. The court overruled a motion for a new trial, and judgment was rendered upon this verdict, but was suspended pending application to this court for a writ of error and supersedeas, which were afterwards duly granted.
The evidence on behalf of the Commonwealth, from which viewpoint we must look at the evidence here, justifies the following statement of facts:
On July 15, 1922, the accused, who conducted a barber shop in Essex county, near Hustle postoffice, and resided at the home of his father, went to the
There are five assignments of error, which will be considered in order.
1. That the court erred in refusing to set aside the verdict as being contrary to the law and the evidence.
2. That the court erred in refusing to give instructions Nos. 11 and 12, requested by the accused.
3. That the court erred in giving instruction No. 13 at the instance of the Commonwealth.
4. That the court erred in allowing questions and answers set out in bills of exceptions Nos. 1, 2 and 3.
5. That the court erred in sentencing the accused in accordance with the verdict, since the accused, having been indicted for an attempt to commit murder in the first degree, could not have been found guilty of a misdemeanor, under section 4767 of the Code.
(1) The indictment charges the accused with an attempt to murder C. Ryland Loving. Did the-accused, in contemplation of law, make such an attempt? We think he did.
An attempt to commit a crime consists of two parts, (a) the intent to commit it, and (b) a direct ineffectual act towards its commission; and such act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation; but the overt act need not be the last proximate act prior to the consummation of the crime attempted to be perpetrated. Uhl’s Case, 6 Gratt. (47 Va.) 706; Hicks’ Case, 86 Va. 225, 9 S. E. 1024, 19 Am. St. Rep. 891; Clover’s Case, 86 Va. 382, 10 S. E. 420.
When the intent or design to commit a crime exists, what act or acts done in furtherance of the design will constitute an attempt, is one of the most intricate propositions of the criminal law with which courts have to deal. It is contended in the instant ease, that because it is not shown by the evidence that the accused intentionally fired the gun with the intent to kill Loving, his acts fall short of constituting an attempt; that at most, all he did, if intent is established, was to make preparations to commit murder.
In Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L. R. A. (N. S.) 898, it is said: “Whenever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, and this court will not destroy the practical and common sense administration of the law with subtleties as to what constitutes preparation, and what an act done toward the commission of a crime. Too many subtle distinctions have been drawn along these lines for practical purposes. Too many loopholes have been made whereby parties are enabled to escape punishment for that which is known to be criminal in its worst sense.”
In most of these views we heartily concur. The facts in the instant case, however, are more conclusive of" guilt than those in the Stokes Case. Lee expressed his.
Loving knew the defendant’s condition and his mental attitude; he heard what he said when he left a half hour before, and what he said upon his return, and he saw him place himself in a position of advantage where he could have carried out his expressed purpose to kill if Loving had stepped out the door in his view.
What would have happened if he had not taken the very wise precaution of jumping upon and seizing the accused from behind is a matter of conjecture, but Loving testified that after he had seized Lee “he was trying to get the gun to me and I was trying to get it away. In the tussle I threw him down and while down on the ground he was trying to ge,t the gun towards me and the gun went off. I don’t know how the gun went off.”
It is immaterial how the gun was discharged. If the jury believed the statement of C. Ryland Loving above quoted, it was amply sufficient, in connection with the other evidence in the case, to establish the guilt of the accused as charged in the indictment. Hicks v. Com., 86 Va. 226, 9 S. E. 1024, 19 Am. St.
(2) It is assigned as error that the court refused to grant instructions Nos. 11 and 12, offered by defendant.
Instruction No. 11 was as follows: “The court instructs the jury that it is necessary to prove beyond a reasonable doubt and to their satisfaction that the defendant fired the gun, and there being no evidence that the defendant fired the gun, the jury must find the defendant not guilty.”
As has heretofore been shown, there was no error in refusing to give this instruction. The actual firing of the gun was not necessary to complete the offense-charged. Stokes v. State, supra.
The instruction was bad also because it assumes the defendant did not fire the gun. The question as to who fired the gun was one for the jury, and if Loving’s testimony is to be believed, „ the accused did fire it.
Instruction No. 12 is as follows: “The court instructs the jury that in order to constitute an attempt to commit crime two elements are essential, first, the-intent to commit, and second, a direct ineffectual' act done towards its commission; and in order to convict-the accused of the offense charged in the indictment, the Commonwealth must prove beyond all reasonable doubt that the accused actually intended to Mil Ry-land Loving, and that he fired the shot gun at him with the specific intent to Mil him, and unless the jury believe from the evidence beyond all reasonable doubt that the accused actually intended to Mil the said Ry-land Loving, and fired the shot gun at him with the specific intent to Mil him, then they must find the-accused not guilty.”
This instruction is erroneous for reasons heretofore assigned and was properly refused.
The objection to this instruction is that it omits the words “beyond a reasonable doubt” after the word “evidence” in the second line.
There were ten instructions given in the case. In seven of these instructions the jury were told they could not convict the accused unless they believed his guilt was established beyond a reasonable doubt. The instructions must be read together, and even if the instruction under consideration was defective, it is inconceivable that the jury could have been misled in any way by the omission.
(4) Bills of exception Nos. 1, 2 and 3 related to questions propounded by the Commonwealth’s attorney to C. Ryland Loving and his father R. A. Loving, and related to some prior difficulty, the character of which' :is not definitely shown, between the accused and R. A. Loving, which resulted in accused being ordered off the Loving premises, but the questions propounded : specifically related to the length of time it had been, prior to the difficulty which resulted in the instant prosecution, since the accused had been on R. A.
It is claimed that this evidence had no bearing on the issue and was very damaging to the accused.
We do not think so. The defense sought to show very 'friendly relations between the accused and C. Ryland Loving, and this evidence was admissible to refute the claim of great friendship and to throw light, at least ;in a circumstantial way, on the prior relations of the [parties. Brown v. Com’th, 138 Va. 807, 122 S. E. 421; Hanriot v. Sherwood, 82 Va. 1.
(5) It is alleged that the accused was indicted under section 4767 of a distinct statutory offense, viz, an .attempt to commit murder, and that this specific offense is a felony. The jury found the defendant guilty as charged in the indictment, but fixed his punishment at confinement in jail for twelve months.
The contention is that the jury could not, upon an indictment for attempt to commit murder, impose ".the penalty of one year in jail. This contention is .thus expressed in the petition for a writ of error:
“Section 4767 of the Code makes an attempt to commit an offense a crime and provides the punish.ment. Under this section an attempt to commit an •offense .punishable with death, other than rape, is a 'felony, punishable by confinement in the penitentiary .from two to five years. This is a separate and distinct statutory offense. The statute makes the attempt a •crime. Without the statute it would be no offense. The offense is not divisible. No offense of a lower degree :is embraced within it. The accused was indicted for a*606 felony under this statute, that is, for an attempt to commit first degree murder which is punishable with death. He had to answer this charge and this alone. The indictment embraced no other crime or offense. Therefore, the accused had to be convicted of the felony charge or nothing. The court had no jurisdiction to try him on any other charge or to convict him for anything less than a felony.
“Section 4918 provides: ‘If a person indicted of felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced, for such part as he is convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor.’
“Now, the indictment simply embraced one offense,, namely, an attempt to commit first degree murder. The court had no power or jurisdiction to try him for any other offense, and the verdict and judgment were-void.”
Section 4767, as far as it is pertinent here, is as. follows: “Every person who attempts to commit an. offense, and in such attempt does any act towards its commission, shall, when not otherwise provided, be punished as follows: If the offense attempted be punishable with death, the person making such attempt shall be confined in the penitentiary not less than two nor more than five years, except that attempts to commit rape shall be punishable with death, or in the discretion of the jury, or of the court trying the case without a jury, by confinement in the penitentiary not. less than three nor more than eighteen years; if it be punishable by confinement in the penitentiary, he shall be confined in jail not less than six months nor more than twelve months.”
This section supersedes the common law in reference to attempts to commit crime.
We think the jury had a. right, under the evidence in the instant ease, and would have been fully justified in •.finding the accused guilty of an attempt to commit murder in the first degree, but we think the indictment charged and that they had the right to find him guilty of an attempt to commit murder in the second •degree, and that, fairly construed, the verdict indicates this is what they did.
Section 4923 of the Code provides: “On an indictment for felony, the jury may find the accused not -guilty of the felony, but guilty of an attempt to commit such felony; and a general verdict of not guilty, upon •such indictment, shall be a bar to a subsequent prosecution for an attempt to commit such felony.”
Under this statute, it cannot be denied that, upon an indictment charging murder in the first degree, (under which an accused might be convicted not only of murder in the first degree, but of murder in the
It follows that where an indictment specifically charges an attempt to commit murder, if it turns out from the evidence, as the jury seemed to think in the instant case, that if death had ensued the killing would have been with malice but not a wilful, deliberate and premeditated killing, the jury could in such case find the accused guilty of an attempt to commit murder in the second degree. If this were not true, to set aside-the verdict in this ease would virtually operate as a discharge of the accused. Counsel would be swift, we think, upon a new trial, to urge that the verdict found by the jury in the first trial operated as an acquittal of an attempt to commit murder in the first degree.
Upon the whole ease, and for the reasons assigned, we think there was no error -of which the accused can justly complain, and the judgment of the trial court-will be affirmed.
Affirmed.