125 Va. 771 | Va. | 1919
delivered the opinion of the court.
William H. McCoy was convicted of murder of the second degree, and brings the case here to review alleged errors said to have been committed on the trial.
“9. The court tells the jury that bare fear that a man intends to commit murder or other atrocious felony, however well-grounded, unaccompanied by any overt act indicative of any such intention will not warrant killing the party by way of prevention. There must be some overt act indicative of immediate danger at the time.
“10. The court further tells the jury that before the*774 prisoner can rely upon self-defense there must be some act by the deceased meaning present peril or something in the attending circumstances indicative of the present purpose to make the apprehended attack. The act so done, or the circumstances thus existing, must be of such a character as to afford the defendant reasonable grounds for believing there was a desire for committing a felony or to do some seriously bodily harm, and imminent danger of carrying such design into immediate execution.”
The objection to these instructions is, that they were “inapplicable and misleading to the jury,” and that, as to instruction No. 9, the “bare fear” theory should not have been presented as it was, in view of the evidence of self-defense offered by the defendant.
We are of opinion that the instructions are not amenable to the objections made to them. The theory óf the prosecution was that the defendant was the aggressor, and that the killing was unprovoked except by the angry words of the deceased shortly before the killing. This theory was supported by the testimony of the only eye-witness to the shooting, taken in connection with other testimony in the case of insulting language and conduct of the deceased. If the jury took this view of the case, it was a case of “bare fear” unaccompanied by any overt act of aggression at the timé of the shooting, and hence the first part of instruction 9 was neither inapplicable nor misleading. On the other hand, two witnesses for the defendant, who were present immediately before the shooting, testify that the deceased had drawn a blackjack on the defendant, and was holding it in his hand behind him, and one of them states that he was threatening to knock the brains out of the defendant just before the shooting commenced; and hence it was proper for instruction No. 9 to present that theory of the case, as was done by the last sentence of that instruction. For the same reason, instruction 10 was also unobjectionable.
Instruction No. 12, given for the Commonwealth: “The court tells the jury that when one is assaulted, unless th'é assault is so fierce or of such nature as to prevent it, he should retreat so far as he reasonably can with safety to himself to prevent killing his adversary.”
Instruction No. 6, given for the defendant: “The court further instructs the jury that if one is unjustifiably and feloniously assaulted he does not have to retreat, but may stand his ground and repel force by force and may use such force as to him may seem reasonably necessary to repel the attack, even to the taking of the life of the assailant.”
We have been unable to find from the record that Frank Skeen was. in the barn either before the shooting or thereafter before the finding of the blackjack by the side of the deceased. The statement of counsel is unsupported by any evidence in the case and was highly prejudicial to the' accused. It was madé in the closing argument on behalf of the Commonwealth, and counsel for defendant had no opportunity to reply to it. Such statements are prejudicial-to the accused, and if not promptly corrected and the jury instructed to disregard them are ground for reversal. Jessee
It is also assigned as error that the trial court refused to set aside the verdict as contrary to the evidence. The evidence was conflicting on some important points in the case, and as the case has to be reversed for the errors hereinbe-fore pointed out, we deem it improper to indulge in any discussion of it.
For the errors hereinbefore mentioned, the judgment of the Circuit Court of Dickenson county will be reversed.
Reversed.