3 Va. 594 | General Court of Virginia | 1846
delivered the opinion of the Court; and considered first the case of M ’ Whirl.
This is an application for a writ of error, to a judgment of the Circuit Court of Spottsylvania, overruling a motion for a new trial, made in that Court in behalf of the prisoner, who had been convicted of murder in the second degree; and whose term of imprisonment in the penitentiary was fixed by the verdict to fifteen years. The motion was made partly because of certain'alleged irregularities in the proceedings of the Circuit Court, which, as is alleged, vacated the finding of the jury; and partly upon the merits.
The prisoner had been jointly accused with a certain William FI. Ferguson and Franklin Powell, of the murder of William Martin, on the 10th of April 1846. The accused had all of them been proceeded against jointly in the Examining Court; and sent on for further trial on the 20th of April 1846. A writ of venire facias was, thereupon, issued by the clerk of the County Court, commanding the sheriff of Spottsylvania to cause to come before the Judge of the Circuit Court, on the first day of the ensuing term, twenty-four good and lawful men, &c., “to recognize on their oaths whether the aforesaid William M Whirl, Franklin Powell and William H. Ferguson, be guilty of the murder aforesaid, or not.” At the ensuing term of the Circuit Court of Spottsylvania, a joint indictment was found against the
The statute directing the proceedings in prosecutions against free persons, as in force prior to the act of 24th February 1846, directed that “ when the justices, (the Examining Court,) shall have determined that a prisoner ought to be tried for an offence in the Superior Court of Law, the clerk of the Court, where such examination shall be had, shall issue a venire facias, to be directed to the sheriff or sergeant, commanding him to cause twelve good and lawful men, freeholders of his county or corporation, of the neighbourhood of the place where the fact shall have been committed, to come before the Judge of the Superior Court at the time the witnesses
The act of February 21st, 1846, enacts, that “ hereafter in all prosecutions for treasou, murder, &c. the venire facias shall command the sheriff, &c. to summon twenty-four good and lawful men, &c. who reside remote from the place where the offence is charged to have been committed,” &c.
“ At any time before arraignment or sentence, when required of the sheriff, the accused shall have a copy of the pannel of the jurors summoned for his trial. If any of the jurors summoned as aforesaid shall fail to attend, or be challenged for cause ; or if the whole array shall be challenged, the Court, before which the trial is to be had, shall cause other jurors to be summoned from the body of the county, until a pannel of twenty-four qualified jurors, free from exception, be completed: and the jury for the trial of the offence shall be composed of any twelve of the number, to be selected by lot: provided, that before the jury shall be selected, the accused shall be privileged to strike from the pannel the names of not exceeding eight of the jurors entered thereon : but he shall not be admitted to any further peremptory challenge.”
It is obvious, when the prosecution is against three prisoners charged with the same felony, that it is altogether impracticable, under the jury law of the last session of Assembly, to try them jointly, unless concessions are made by them upon the record of the Circuit Court, after the indictment and their arraignment, that
But when the prisoners, upon their own motions, obtained a severance of their trials, surely there could be no ground left for any of them to complain, that the venire that had been issued for the purpose of trying them all jointly, should be quashed, when, at their own instance, that purpose had been frustrated. Nor was there any ground left them to complain, that, in the place of the writ which had been quashed, other writs of venire should be awarded, adapted to the several trials that they themselves had prayed for. The prayer for several trials would seem to embrace in it an entire severalty of all the proceedings ; making the indictment several, the pleadings several, and the jury process and whatever was incidental or concomitant to the trial of each, several. The pretension, if admitted, that the same jury which had been originally summoned for the joint trial of all the prisoners, should continue to constitute the pannel of veniremen for each successive trial, would only tend to produce the delay of waiting in the subsequent trials, till the jurors were discharged from the first; or of issuing at some subsequent period of the term, a venire, in order to obtain jurors who had formed no preconceived opinions of the guilt or innocence of the accused ; or tend to prevent fair and impartial trials
In order to avoid the inconveniences of several challenges, exhausting the whole pannel of a joint venire; and in order to avoid any possible delay, and in order to secure fair and impartial trials, it seems indispensable, that the recommendation of Lord Hale, under the English practice, should have been adopted, of making several writs of venire facias at once. 2 Hale 263. 1 Chit. Cr. L. 509-10. And when such writs were issued, then, according to their broad commandment, in the forms prescribed, they were the sheriff’s warrants, not for summoning exclusively the original veniremen, but for summoning whomsoever he might think most fit to perform, in the fairest and most impartial manner, the duty of passing between the Commonwealth and the prisoners, respectively.
The Court is therefore unanimously of opinion, that there is no ground for setting aside the verdict in question, because the original venire facias was quashed by the Circuit Court, and several writs of venire facias awarded by it anew.
The second ground upon which the verdict is sought to be vacated and a new trial is asked for, is, because the clerk in charging the jury, did not charge them with involuntary manslaughter, as one of the crimes of homicide.
The form in which the jury were charged by the clerk, in the present case, is the form which has been practised in trials for homicide throughout the Commonwealth for half a century; ever since the adoption of the penitentiary system. This Court can feel no inclination, after the sanction of such long continued and universal practice, to set aside a verdict, at this day, because of the alleged irregularity of this clerical omis
The Court is unanimously of opinion, therefore, that this second ground of objection to the verdict of the jury must be overruled.
The third exception, (which is the first upon the merits,) to the judgment of the Circuit Court overruling the motion for a new trial, is, that the verdict was contrary to law and evidence; and this presents for consideration, whether the homicide in question was murder or manslaughter.
Murder is the unlawful killing of any person with malice aforethought : and malice is either express; as where one person kills another with a sedate, deliberate mind, and formed design; such formed design being evidenced by external circumstances, discovering the inward intention; as by lying in wait, antecedent menaces, former grudges, and concerted schemes. 4 BI. Com. 198. And so, where, upon a sudden provocation, one beats another in a cruel and unusual manner, so that
Manslaughter is the unlawful killing of another, without malice either express or implied; which may be, either voluntarily, upon a sudden heat, or involuntarily in the commission of some unlawful act. 4 Bl. Com. 191. The difference between the crimes of murder and manslaughter, consists in this, that manslaughter, (where voluntary,) arises from the sudden heat of the passions, murder from the wickedness of the heart. Malice aforethought is the grand criterion which distinguishes murder from other killings. 4 Bl. Com. 198. All homicide, is in presumption of law, malicious; and of course amounts to murder, unless justified, excused or alleviated; and it is incumbent upon the prisoner to make out, to the satisfaction of the Court and jury, the circumstances of justification, excuse and alleviation. 4 Bl. Com. 201; Honeyman's Case, Add. 148; Bell's Case, Id. 162; M'Fall’s Case, Id. 257; Lewis' Case, Id. 282. This presumption of malice, which makes the homicide to be murder, may be repelled by the accused, where the act, though intentional of death, or great bodily harm, was not the result of a cool, deliberate judgment, and previous malignity of heart; but is imputable to human infirmity alone, when death ensues from sudden transport of passion or heat of blood, if upon reasonable provocation, and without malice: for on such proofs, the homicide will be manslaughter. 1
Again, the law, in connection with the provocation, will take into consideration also the nature, the manner, the means of the retaliation for the provocation which has been given. 1 East’s Cr. L. 234. And in this connexion, if the punishment inflicted for a slight transgression of any sort is outrageous in its nature, either in the manner or continuance of it, and beyond all proportion to the offence, it is rather to be considered as the effect of a brutal, diabolical malignity, than of human frailty. It is one of the true symptoms of what the law denominates malice; and, therefore, the crime will amount to murder, notwithstanding such provocation. Barbarity, Lord Holt has said, will often make malice.
The foregoing principles seem decisive of the character of the homicide in question; and plainly to rank it in the class of murder, and not of manslaughter.
The alleged provocation is, that the deceased had whipped the prisoner’s son, travelling inoffensively, in his father’s business, upon the turnpike road. The case of Rowley, variously stated in 12 Rep. 87; 1 Hale 453 ; Fost. 294; Cro. Jac. 296; Godb. 182; see 1 East’s Cr. L. 237-8, is strong to shew, that the provocation of a father for violence done to his son will be sufficient to repel the presumption of malice, if the father, in the first impulse of feelings immediately on hearing of the injury, should kill the person who had beaten the son: provided, however, that the retaliation was not accompanied with brutal violence; and an intent was manifested to inflict moderate chastisement upon the offender.
In the case under consideration, the alleged cause of provocation, the whipping of the prisoner’s son, took place the evening before; some twenty-four hours be
Admitting the full force of the provocation given to the father by the beating of his son, had there been no eooling time during the repose of the night ? Was there no opportunity during the labours and occupations of the following day, for reason to resume her sway in allaying his paternal resentment? If the law could protract its indulgence for the frailties of human temper, notwithstanding these intervening opportunities of cooling, it would seem impossible to say when that state of the feelings, amounting to revenge or other malevolence, which is indicative of express malice, shall begin.
If the provocation in the first impulse of feeling in detecting an adulterer with the slayer’s wife, will repel
It was strongly contended, that chastisement and not death of the deceased was clearly intended. Malice aforethought - may consist in the intention to do great bodily harm, as well as to kill: and whether the intention be the one or the other, and death happen, the law will not surrender its general presumption, that the homicide is murder. No one can review these transactions without seeing most clearly that great bodily harm at least was intended to be perpetrated upon the deceased.
Much stress was also laid upon the circumstance that the prisoner might have resorted to deadly weapons which were at hand, if he had designed any fatal injury to the deceased; and that instead of employing these, he had only availed himself of the weapons which nature had furnished him with. And it was moreover insisted, that no case had been found deciding the homicide to be murder, when, under such circumstances, the fatal attack had been made only with the fists, and the death of the party beaten was not immediately pro
The.fourth ground of exception taken hy the prisoner, (which is the second upon the merits,) is that the pun^s^ment found by the jury is excessive,
No question has been raised by the counsel as to the degree of the murder which the prisoner has perpetrated. Nor does the Court consider that as a question propounded in this case for their adjudication. It is to be distinctly understood, that no opinion whatever as to the degree of the murder, is to he supposed as intimated in the present judgment. The degree of punishment, in prosecutions like the present, the Legislature has thought proper to entrust to the jury, as a peculiar province belonging to them, and not to the Court. At the same time the Legislature has affixed limitations upon the exercise of their powers, when it prescribed the minimum and the maximum of penitentiary confinement, as the punishment for the several felonies. The exercise of a power by the Courts to control or disturb the verdict of jurors, as to the duration of the penitentiary confinement, would be one of great responsibility ; and which this Court can never be disposed to usurp. Whatever may be the power of the Courts in this respect, is a matter which this judgment will leave wholly undecided. It is, sufficient that in the unanimous opinion of this Court, this case can justify no interposition of the Court on the ground that the punishment found hy the jury has been excessive.
The foregoing are all the, grounds upon which the prisoner, M ’ Whirl, has asked for a new trial. These grounds having been unanimously overruled as to him, are also unanimously overruled as to Ferguson, whose case in the foregoing particulars, the Court regards as substantially the same in point of guilt with that of M’Whirt, with no other real discrimination than that of principal in the first and second degree in the same felony.
M’ Whirl had been tried on Saturday the 9th of May ; and Ferguson, when set to the bar on the succeeding „ , „ . Tuesday morning the 12th, moved for a continuance, which was grounded upon the affidavits of the prisoner and his counsel, as to the absence of Edward A. Kenedy and Livingston Kenedy, material witnesses, who had been duly summoned to the Court to testify in the prisoner’s behalf.
The depositions of these two witnesses, as taken at the Examining Court, had been read at the previous trial of M' Whirl by consent; and the object of their testimony was to shew that the deceased was subject to fits, and that the deceased might have died in consequence of fits, which would produce in the interior parts of the head, appearances similar to those which had been ascribed to the violence of the beating he had received from M’Whirt. The testimony of these witnesses had, to the fullest satisfaction of the Judge of the Circuit Court, been utterly discredited by a great number of witnesses, who proved that they were entirely unworthy of belief. The Commonwealth’s Attorney proffered that the same depositions might again be read on Ferguson’s trial, liable to be discredited in the same manner as in M ’ Whirt’s trial. But the prisoner, by his Counsel, and in his affidavit, insisted that he could not safely go to trial without having the Kenedys personally present at the trial; and that he wished to have an opportunity of obtaining testimony to sustain the credit of said witnesses; and confirm the facts to which they would testify ; which testimony would be important aud material to the defence : the prisoner having now been informed that their credit would be assailed. It was in proof, that one of the witnesses resided in the county of Orange, about twenty miles
This Court, without adverting to the consideration, how far the motion to put off the trial on account of the absence of witnesses, in' this case, was on account of the absence of witnesses as to character, (1 Chit. Cr. L. 492,) is unanimously of opinion, that the motion was properly overruled ; and that the Court tendered to the prisoner, in the intimations which it gave, all the indulgence that the prisoner could expect or claim at its hands.
The judgment of the Circuit Court is unanimously sustained.
Writ of error denied.