101 Va. 833 | Va. | 1903
Lead Opinion
delivered the opinion of the court.
This is a writ of error to a judgment of the County Court of Washington county, sentencing Moses W. Litton to confinement in the penitentiary for a term of five years for the killing of John Collings.
It appears that there was bad feeling between the prisoner and the Collings family, caused by the alleged depredation of the fowls of Collings on the lands of the prisoner; that the lands of the prisoner were near those of J. K. Collings, father of the deceased, being separated by a lane which ran near the barn of J. K. Collings; that on the 18th day of July, 1902, John- Collings, the deceased, had been hauling hay, and had come to his father’s barn, and, accompanied by his mother and sister (the latter carrying a Winchester rifle), went out to the adjoining meadow of the prisoner, where he was at work, to get a chicken which the prisoner had injured or killed; and that there the deceased and the prisoner had a difficulty, in
This difficulty occurred between 3 and 4 o’clock in the evening of July 18, 1902. About Y o’clock the same evening, after his wound had been dressed, the prisoner came out upon his front porch, taking a seat, with his double-barrelled shotgun beside him, and upon hearing a wagon approaching along the public road in front of his house, and supposing the deceased was on the wagon, the prisoner took a position in the corner of his yard, near the yard fence running parallel with the public road, and next to the approaching wagon, with his gun in his hand, and when the deceased, upon a load of hay, and driving the team, with the lines in the left hand, and a whip in the right, was about opposite him, the prisoner raised his gun and fired, the load taking effect in the elbow of deceased’s left arm, whereupon the deceased undertook to shoot at the prisoner with a pistol he had been carrying in his pocket or on the wagon; the discharge of the pistol and the second shot from prisoner’s gun being simultaneous; the second shot from the gun taking effect in deceased’s left side, over the heart. After the deceased was thus shot he continuel to fire his pistol'until its five chambers were.emptied, but, as he was in a dying condition, the shots went wild of the prisoner. The prisoner then ran back to his house, about forty-five yards away, got his Winchester rifle, came out again to the yard, and warned Smith, who was on the wagon, holding the deceased, to get out
The first error assigned relates to the impaneling of the grand jury which found the indictment against the prisoner* Prior to the August term, 1902, of the County Court, at which the prisoner was indicted, the judge of the court had, in accordance with the statute, furnished the clerk with a list of forty-eight persons to serve as grand jurors for a year, and the clerk had issued a venire facias for twelve of the persons on that list to serve at the August term, 1902; but in the meantime the General Assembly passed the act of July 28, 1902, amending section 3976 of the Code, prescribing who are qualified persons to serve as grand jurors, how they are to be selected, etc. (Acts 1902-’3, p. 22.) The judge of the County Court, deeming it expedient to do so, on the first day of the. August term, 1902, quashed the writ of venire facias for the grand jurors to serve at that term, and furnished the clerk with another list of forty-eight persons to serve as grand jurors for one year, beginning with and including that term, in accordance with the act of July 28, 1902; and from that list the clerk, as ordered by the judge, issued a writ of venire facias for twelve of said jurors to attend the day the writ was issued, to serve as grand jurors at the August term of the court, then begun. Thereupon all of the twelve grand jurors so summoned appeared in court, were duly sworn and examined according to> law, and eleven of them were found to be free from exception, who were sworn a jury of inquest according to law, and thereafter, on the following day, presented the indictment upon which the prisoner was tried and convicted.
The contention made for the prisoner is that the court erred (1) in quashing the venire facias issued by the clerk on the 13th of August, 1902; and (2) in not impaneling a special
Section 3977 of the Code, as amended by the Act of February 25, 1890 (Acts 1889-’90, p. 91, c. 115), provides that a regular grand jury shall consist of not less than nine nor more than twelve persons, and a special grand jury of not less than six nor more than nine persons; and clearly it was within the discretion of the judge of the County Court of Washington county at its August term, 1902, to impanel a regular or a special grand jury to serve at that term. Having impaneled a regular grand jury, consisting of not less than nine nor more than twelve persons, to-wit, eleven, selected from a list of forty-eight persons to serve as grand’ jurors for one year, beginning with that term, there is nothing whatever in the proceedings to vitiate the indictment found against the prisoner. Shinn’s Case, 32 Gratt. 907.
It appears that several lists and writs of venire facias were issued before a panel of sixteen persons, free from exception, was obtained, from which the jury that tried the prisoner was selected. To each of the writs of venire facias the prisoner excepted, without assigning any grounds therefor, the exceptions were overruled, and this is assigned as error.
Several grounds are stated in the argument here, upon which we are asked to hold that the County Court erred in summoning and selecting jurors who tried the prisoner, among which, and the only ones that we deem it necessary to consider, are (1) that the record does not affirmatively show that the original
The bill of exceptions upon which the assignment of error is founded sets out at length all the proceedings in the summoning, selecting, and impaneling the jury, setting forth that after the prisoner was led to the bar of the court, and issue joined upon his plea of not guilty, the sheriff returned the list furnished by the judge of the court, and the venire facias issued by the clerk thereof, which showed that all the persons named therein had been summoned; that they were solemnly called, and fourteen of them (names given) appeared in open court; that other lists were furnished by the judge, and writs of venire facias issued by order of the court thereon, directing that the persons named be summoned, which was done, and the two persons so summoned appeared in open court, making, with the fourteen already in court, sixteen; that thereupon, the jurors so selected and summoned all appeared in open court (naming them), who were duly sworn and examined according to law, and eight were found to be free from exception; that another list was furnished by the judge, and a venire facias, Ho. é, was ordered by him, and issued, as provided by law, to complete the panel of said venire, returnable that day; that some time thereafter the sheriff made return of same, which showed said persons had been summoned (naming them), and they appeared in open court, and were duly sworn and examined, and but three of them found free from exception; and that similar proceedings were taken until a sufficient number of persons free from exception was obtained to complete the panel, and from this panel the prisoner, by counsel, struck four, and the remaining twelve were selected to constitute the jury for his trial (naming the twelve).
What we have just said applies with equal force to the contention that the record fails to show that the jurors composing the panel of sixteen persons from which the jurors who tried the prisoner were selected were the jurors who, upon their examination by the court, were found to be free from exception, and will only add that the record plainly shows that the jurors selected were all on one or-the other of the lists furnished by the judge, and the writs of venire facias issued upon them, and that sixteen of them were found to be free from exception. Therefore, to sustain the contention of counsel, we would have to presume that the court allowed to be put upon the jury the jurors not found to be free from exception, in the face of the fact that a sufficient number had been found to be free from 'exception and were in court. Such an error cannot be presumed. Gilligan’s Case, supra; Dove’s Case, 82 Va. 306.
While it is a general .rule that the judgment must be reversed where illegal.or improper evidence has been allowed to go to the jury, the rule is wholly inapplicable to a case like this, where the evidence complained of was admissible; where the court, out of abundant caution, gave the instruction above
The court is further of opinion that the County Court did not err in allowing the question: “What were you going to do ? Were you going to shoot John, whether you saw the pistol or not V’—to be asked the prisoner on his cross-examination.
“A party, when examined as a witness, may be asked as to his own motives and intention, when these are material. Jackson’s Case, 96 Va. 111, 30 S. E. 452; Thompson on Trials, sec. 642, and note on page 525.
In this case the prisoner, when asked the question above mentioned, neither claimed his exemption, nor suggested that his answer to the question would criminate or tend to criminate him. On the contrary, he answered voluntarily, and his answer was in fact in his own favor, and certainly not to his prejudice.
The court is further of opinion that the court did not err in admitting in rebuttal the evidence introduced on behalf of the Commonwealth as to the occurrence in the meadow several hours before the homicide. The Commonwealth not only has the right to conduct its case as its representative may see fit within reasonable limits, but to rest its case when the homicide is proven. Then the burden is on the prisoner to extenuate, justify, or excuse his act; and, in this case the prisoner having put in evidence as to the occurrence in the meadow, it was entirely regular and permissible for the Commonwealth to introduce, in rebuttal or reply, eAndence to shoAv its version of that occurrence. Therefore, there was no error in permitting this to be done.
After all the eAddence had been introduced, but'before the case had been submitted to the jury, and before the instructions were given by the court, the attorney for the Commonwealth moved the court for a view on the part of the jury of the grounds Avhere the homicide Avas committed—stating that he
It is not suggested that every safeguard was not thrown around this proceeding, or that the jury was not in proper legal custody, or that evidence was taken on the view, or that the conduct of the jury was not free from exception; nor does it appear that the prisoner and his counsel were not present, or were denied that right. Therefore, the only contention made in this connection is that it was error to order the view over the objection of the prisoner.
There is conflict of authority whether the court may, at common law, in its discretion, permit the jury to visit and view the premises where it is alleged a crime was committed, not for the purpose of furnishing evidence upon which a verdict is to be founded, but for the purpose of enabling the jury better to understand and apply the evidence which is given in court. 9 Amer. & Eng. Enc. L. 725; 22 Enc. Pl. & Pr. 1038, and authorities cited. But in our opinion, the matter is controlled in this State by statute.
Section 3167 of the Code is: “The jury may in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing, relating to the controversy between the parties, when it shall appear to the court that such a view is necessary to a just decision.
. In order to give to this statute a correct interpretation, we deem it necessary to trace its history. It was doubtless taken from 6 Geo. IV., e. 50, sec. 23.
In 2 Tidd’s Pr. 796 (Amer. ISTotes), it is said: “In a criminal case, there could formerly have been no view, without consents But now, by St. 6 Geo. IV., c. 50, 'where in any case,
This statute was enacted the sixth year of the reign of .George IV., and it was at that time an open question in this country whether a view could he allowed in a criminal case in the absence of a statute authorizing' it; some of the courts holding that it could not, and others taking the opposite view.
In Robinson’s Practice (Old Ed.), pp. 178, 179, the subject is briefly discussed, and some of the decided cases are given, in which the view was denied and allowed, hut the author expresses no opinion on the subject.
When our statutes were codified in 1849 there was ingrafted, as section 10 of Chapter 162, Code 1849, under the heading of “Juries Génerally,” 'the following: “Sec. 10. The jury may, in any case, at the request of either party, he taken to view the premises or place in question, or any property, matter or thing relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision:, provided the party making the motion shall advance a sum sufficient to defray the expenses of the jury, and the officers who attend them in taking the view; which expenses shall he afterwards taxed like other legal costs.”
If the words “in any case” are to be construed as not applying both to civil and criminal eases, which class is to be excluded? Would it not be as grave an invasion of the province of the Legislature to say, by judicial interpretation, civil cases only were in the contemplation of the framers of the statute,
We are also of opinion that the mere preservation of the provision contained in the original English statute from which our statute (now section 3167 of the Code) was taken, relative to the costs of a view, nor the fact that the Legislature, by Act of January 18, 1888 (Acts 1887-’88, p. 18, c. 15), amending-section 4048 of the Code, declared that section 3167 “shall apply to jurors and juries in all cases, criminal as well as civil,”' justifies the conclusion that section 3167 was theretofore applicable to civil cases only. With reference to the first proposition, we deem it only necesssary to say that, in the enforcement of the provision in the statute touching costs, the courts-are controlled by it and other statutes in force in this State, in pari materia; and, with reference to the second proposition,, that, in our view, the amendment of section 4048 of the Code was wholly unnecessary to make section 316^ applicable to criminal cases.
Whether or not the Act of January 18, 1888, amending section 4048 of the Gode, is repugnant- to seetioii 15 of Article V. of the Constitution of this State, we do not deem it necessary to express- an opinion.
The court gave eight instructions asked for by the Common-' wealth, thirteen out of fourteen asked for by the prisoner, and-one of its own motion in lieu of instruction Ho. 1 given for the Commonwealth, and withdrawn after part of the argument had been heard, as stated.
The instruction Ho. 9 asked for by the prisoner, and refused, attempted at great length to set out the case in all of its phases,
The remaining assignment of error is to the refusal of the court below to set aside the verdict and award the prisoner a new trial. Having made a full statement of the case as disclosed by the record, it is needless to review the evidence at length.
We know of no law that justifies the taking of human life in the manner and under the circumstances narrated in this record, even if the facts and circumstances surrounding the homicide be as the prisoner would have us to believe existed when he took the life of the deceased, John Collings.
Upon the whole ease, we are of opinion that it is plainly one in which the verdict of the jury should not be disturbed. Therefore, the judgment complained of is affirmed.
Dissenting Opinion
dissenting.
I concur in the result, hut not in the opinion of the court. I do not think that section 3167 of the Code of 1887 authorizes a view in criminal cases, as the court holds. The chapter in which it is found in the Code applies solely to juries in civil cases. By the Act approved March 18, 1884 (Acts 1883-’84, p. 702, c. 523), entitled “An act to revise and digest the Code and statutes of Virginia,” it was made the duty of the revisers to collate and revise all the general statutes of the Common
Section 3167 of the Code is found under “Title 46,” entitled “Courts and Juries in Civil Cases” (Code, p. 731), and in chapter 152, entitled “Of Juries in Civil Cases” (Code, p. 750). These titles are parts of the Code. This is so, it seems to me, hoth from the language of the act directing the manner in which the Code should be revised, as well as from the fact that the titles were in the Code when it was reported to and adopted by the Legislature. This view is sustained by Judge Burks, one of the revisers. In his address before the State Bar Association in 1891 (Bar Association Report for that year, p. 110), he says: “It should be observed that the title of contents of sections prefixed to each chapter, and the headings of the revised sections taken from the title, together with the notes and marginal references to adjudged cases, were the work of the revisers, done in course of the publication of the Code after it was adopted. It was authorized by a section of the act directing the publication. That section was taken literally (with change of names) from the act directing the publication of the Code of 1849. It is hardly necessary to say that these titles, headings of sections, notes, and marginal references, prepared after the Code was adopted, and published with it, though authorized as a matter of convenience, constitute no part of the law.” His language clearly implies that the titles to the chapters were a part of the Code. Hot only did the Legislature think that section 3167 of the Code did not apply to criminal cases, but that was the view of the revisers, also, for in the same address, at page 111, Judge Burks says: “Some errors of the revisers, the result of oversight while under great pressure, were discovered by them after the Code was adopted, and before it went into operation. These, at their instance, were corrected by the Legislature at the session of 1887-588,
Providing that those sections should apply to criminal as well as civil cases was not, in my opinion, amending them, within the meaning of section 15 of Article V. of the Constitution. It was merely extending their operation to another class of cases, without in any way amending or changing them. This seems to have been the view of the revisers, since the act making them applicable to criminal cases was passed at their instance, and doubtless drawn or approved by them. They would scarcely have drawn or approved an act intended to. correct their own mistakes, and asked the Legislature to pass it, unless they were fully satisfied that it was not in conflict with the' Constitution of the State.
That act, and not the Code, in my judgment, authorized the County Court to direct the view of which the prisoner complains.
Affirmed.