131 Va. 676 | Va. | 1921
after making the foregoing statement, delivered the following opinion of the court:
The following questions raised by the assignments of error will be disposed of in their order as stated below:
1. Does it appear from the evidence that the judgment under review is plainly wrong or without evidence to support it?
In so far as the question of the sufficiency of the evidence is concerned, the case turns upon the issues of fact of whether the gun of the accused was lying on the ground in the weeds as he arose, when Frances Hanson first saw him and made the exclamation shown in. evidence; of whether the deceased turned towards f-he accused and threw his right hand to his right hip pocket; of whether the accused then for the first time “grabbed the gun off of the ground” and fired at the accused, and of whether, just as the accused fired, the girl stumbled in the weeds and the deceased turned back towards her, and thus received the wounds found upon his person; or whether the accused arose with the gun in his hands, and the deceased did not throw his hand to his hip pocket, but had his back practically directl to-'-ardf. the accused when the gun was fired. There was sufficient evidence to support the finding of the jury either way; hence their verdict was binding upon the court below and is binding upon us.
While possible, it was in the highest degree improbable, if the deceased turned so far facing the accused as to make a demonstration against the latter of drawing a pistol from the hip pocket, that, even if the attention of the deceased was attracted elsewhere by the girl stumbling in the weeds, he would have then turned so far away from the accused as to have received the discharge from the gun practically directly in the back. If this movement had occurred, the strong probability is that the deceased would have been shot in the right or left side, dependent upon whether he had turned to the right or the left in the attempt to draw a pistol. Indeed, it is stated in the petition of the accused for the writ of error, that just at the moment the shot was fired, “Daisy Moss, who had started to run, stumbled in the weeds and Barker, hearing her stumble, partly turned towards her with his hand still on his hip pocket, so that his right side and back were thus turned towards petitioner just as petitioner fired. The shot from petitioner’s gun, therefore, penetrated Barker’s right side and back * * But unfortunately for the accused the uncontroverted testimony of the physician who examined the wounds was as follows:
*691 “There were four shot in his left thigh, one came through here; there was one in his right, that is below the hip joint in the pelvic bone, two here and one in the palm of his hand. Then his right forefinger and his right thumb at the end were shot. I counted eight shot in his body—four in his left thigh and one in his right; that is five; two here (indicating), and one in the palm of his hand.”
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Cross-Examination.
“Q. By Mr. Moon. I don’t exactly catch how those shot were. How many shot struck him?
“A. Nine shot I know of.
“Q. Will you show me where they were ?
“A. (Indicating). There were four that went into his left thigh; two came through here, and one in his right thigh and that came through just under the surface of the skin, and one struck him just below the hip bone, and there were two hit him in his buttock, just to the right of the middle line, just about there, and one struck him in the palm of his right hand, and his finger and thumb were shot.”
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“Q. They went in sort of from the side and back, those shots did, didn’t they?
“A. I think they were pretty much from the back.
“Q. How did they come out?
“A. They came out straight in front.
“Q. You pointed out where the shot entered. Now point just where they came out.
“A. They came out just to the center of the thigh.
“Q. About the center of the right side? And the left?
“A. Right and left. I don’t know which side of the leg bone they went. The one that went in the right thigh seemed to go right straight through the thigh.”
Again: It is contended for the accused that the fact that one shot penetrated the palm of the right hand of the deceased confirms the testimony of the accused that the right hand of the deceased was in his hip pocket at the time the gun was fired. This may have been so. But, in view of the character of the other wounds aforesaid, the jury may have reasonably regarded the fact to have been that the hand was in the natural position of one fleeing from another, namely, at the side, when the gun was fired, in which position the shot would have penetrated the palm as it did.
It appears from the petition for the writ of error that the objections of the accused to the declarations in question which are insisted upon before us are those shown by the record to have been made and overruled in the trial court, and they are, in substance, as follows:
That the declarations do not come within the meaning of dying declarations. “His (the deceased’s) treatment of other people and how he treated the accused and their previous relations cannot be the subject of a dying declaration. * * * A dying declaration ought to be one as to circumstances; as to what actually happened. I move to exclude the whole thing, but particularly that part which refers to their previous relations.”
As stated in 2 Wigmore on Ev., sec. 1434: * * the declaration may not concern any and all topics. It must concern the facts leading up to or causing or attending the injurious act which resulted in the declarant’s death: $ $ $99
As said in O’Boyle’s Case, 100 Va. 785, at p. 795, 40 S. E. 121, at p. 124: “* * * dying declarations to identify the prisoner, or to establish the circumstances of the res gestae, or to show transactions from which death results, are always admissible, to have the same weight as if made under the sanction of an oath.”
See to same effect Swisher’s Case, 26 Gratt. (67 Va.) 963, 21 Am. Dec. 330, and Richards’ Case, 107 Va. 881, 59 S. E. 1104.
In the authority last cited, at p. 376, this is said:
“Dying declarations being a substitute for sworn testimony must be such narrative statements as would be admissible had the dying person been sworn as a witness. If they relate to facts to which the declarant could have thus testified, they are admissible.”
This being the situation, we have no hesitancy in holding that the portion of the dying declarations just mentioned was properly admitted in evidence.
There are two objections which we find from the author!-, ties have been sometimes urged to such declarations; one
As we understand the objections of the accused to the declarations, they are not that they are inadmissible because they are conclusions of fact, or opinions, but take the position that the declarations are inadmissible in evidence for the sole reason that they concern conduct of the deceased towards other people and especially towards the accused previous to the very time of the homicide. However, without considering whether the form of the objections aforesaid has at all narrowed the scope of the legal questions raised, we shall proceed to consider the whole subject.
As we know, the ancient- rule against the admission in evidence of statements of conclusions of fact has been much .relaxed in modern times.
As said in 10 Am. & Eng. Ency. L. (2d ed.), p. 383: “A statement which tends to show whether there was any provocation for the defendant’s act may be so worded as to be admissible. It has, however, been held that the general statement that there was no cause for the defendant’s act is not admissible.” (Citing Kentucky and Missouri cases.) “But some courts have taken the contrary view.” (Citing Ohio, Mississippi, Texas, Indiana, Georgia, California, Iowa, Alabama, and North Carolina cases.)
An examination of the cases discloses that in Kentucky and Missouri it is held that the dying declarations which are admissible in evidence are those confined to the topic of the facts which occurred at the very time of the killing; and it is also held in these two States that statements of the declarant of conclusions of fact are inadmissible in evidence because violative of the rule against opinion evidence of non-expert witnesses. Starr v. Com., 97 Ky. 193, 30 S. W. 397; Collins v. Com., 12 Bush. (Ky.) 271; State v. Elkins, 101 Mo. 344, 14 S. W. 116; State v. Parker, 172 Mo. 191, 72 S. W. 650. (It may be noted that in the note to section 1434 of 2 Wigmore on Ev., supra, the holding of the last cited case is severly criticized.) The Kentucky and Missouri holding is, as we think, contrary to principle and the greater weight of authority, certainly in so far as it confines the topic to the facts which occurred at the very time of the homicide. The “facts leading up to,” and hence which precede the homicide, which have a material bearing upon the motives and the probable conduct of the accused at the time of the homicide, are relevant, and dying declarations concerning such facts are plainly
Patterson’s Case, 114 Va. 807, 75 S. E. 737, is strongly-relied on for the accused. And it must be admitted that there are expressions in the opinion in that case which might bear the construction that dying declarations to be admissible must be confined in their scope to the occurrences at the very time of the homicide; and that declarations concerning transactions prior in date to the homicide itself are inadmissible in evidence, although in a dying declaration, however, relevant as leading up to and disclosing the animus or evidencing the probable conduct of the accused at the time of the homicide. We cannot think, however, that such a meaning was intended. The meaning contended for on the part of the accused is derived by giving to the phrase in the opinion, “circumstances of the transaction itself,” the meaning of res gestae in its strictest sense, which indeed has been adopted in connection with the subject by the Kentucky and Missouri courts as aforesaid. Such a restricted meaning does not seem to us, as aforesaid, to be in accord with principle or the greater weight of authority. And, if the expressions in the opinion of this court in the Patterson Case can be construed to have the meaning contended for for the accused, they are hereby disapproved. What we are satisfied, however, is meant in that opinion by the phrase “circumstances of the transaction itself” are the circumstances, or facts, leading up to, or causing, or attending the homicide, any of such things being “circumstances of the transaction itself” in the correct meaning of that phrase as used in connection with the doctrine of dying declarations.
In the Patterson Case, the declaration was held to be inadmissible as a dying declaration, for the reason that it was not made under a sense of impending death without any expectation or hope of recovery, hence what was said in the
Before we pass from the Patterson Case, this further, however, should be said. The following expression is relied on in argument for the accused in the case before us, which occurs in the opinion in the Patterson Case, at p. 816 of 114 Va., at p. 740 of 75 S. E., namely: “The absence of any self-serving purpose to be. furthered on the part of the declarant is an essential element of the circumstantial guarantee of the trustworthiness of dying declarations. 2 Wigmore on Ev., sec. 1443.” This is evidently an inadvertent expression in the opinion. It is not supported by 2 Wigmore on Ev., sec. 1443, cited, .nor have we been able elsewhere to find any authority sustaining such position. Nor can it be correct on principle, since for the most part dying declarations of deceased persons put in evidence by the Commonwealth, and universally held to be admissible, in accordance with the established doctrine on that subject, are exculpatory of the deceased and inculpatory of the accused, and so must be said to have a self-serving purpose. This expression in the opinion in the Patterson Case, and what is said on the same subject in the next following paragraph therein, is hereby disapproved.
The following decisions in other jurisdictions show the trend of the great weight of authority on the subject under consideration:
In Payne v. State, 61 Miss. 161, the declaration of the deceased was that the defendant “shot him without cause.” In the opinion, referring to dying declarations, this, is said: “Such declarations are * * * restricted to a statement of facts, and opinions, and inferences are to be excluded, but the dying declaration admitted in this case was of a fact and not an opinion or inference of the declarant.”
In Pierson v. State, 21 Tex. App. 14, 17 S. W. 468, the declaration was: “They had no occasion to shoot me. I had not spoken to them a word, nor had I done anything to either of them.” The court, at p. 59 of 21 Tex. App., at p. 470 of 17 S. W., said: “The statement that ‘they had no occasion to shoot me,’ was not a mere inference or opinion of the wounded man and inadmissible on that account.” The opinion then cites with approval the cases from Ohio and Mississippi next above cited.
In Roberts v. State, 5 Tex. App. 141, the declaration admitted was that “Steve Roberts had killed him for nothing.” Held: “This states a fact beyond opinion, and is admissible.”
In Boyle v. State, 97 Ind. 322, the declaration was in the form of the following question and answer:
“Q. What reason, if any, had the man you have identified for shooting you?
“A. Not any that I know of.”
Held: “Admissible as evidence, being the statement of a fact and not an opinion.” Citing Wroe v. State, and Roberts v. State, supra, and other authorities to the same effect, with approval. .
In Darby v. State, 79 Ga. 63 S. E. 663, the declaration of the deceased was that the defendant “had cut him and that
In State v. Mace, 118 N. C. 1244, 24 S. E. 798, the declaration held admissible in evidence was “Oh, Lord! They have murdered me for nothing in the world.”
In Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. Rep. 22, the court laid down the general rule confining dying declarations which are admissible in evidence to the topic of the facts which occurred at the very time of the killing, with all the strictness of the Kentucky and Missouri rule, and yet held that the dying declaration involved in that case, which was, “Jim Sullivan cut me; he cut me for nothing; I never did anything to him,” was admissible in evidence. The court said: “The objections made to this testimony were that it was the conclusion of the declarant— the opinion of the deceased—and that it did not relate to the circumstances or transactions of the killing. There is nothing in this objection. The statement certainly did relate to the act or transaction of the killing. * * * He * * * said Sullivan cut him for nothing, and that he, the declarant, did nothing to Sullivan. True this statement was very general, but it was admissible as a collective fact.”
In Bull’s Case, 14 Gratt. (55 Va.) 613, the declaration was that the prisoner “struck and killed the deceased without provocation, and for no cause, except that the prisoner and those who joined him in the affray said the deceased had talked about a young lady in Haley’s house, which the deceased said he had never done.” It is true that no objec
Coming now to a more specific consideration of the dying declarations remaining to be disposed of in the case before us, our conclusions are as follows:
This question must be answered in the negative.
Section 6214 of the Code of 1919 provides as follows: “A party called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination.”
As held in Gordon v. Funkhouser, 100 Va. 825, 41 S. E. 746, 57 L. R. A. 744, although it be not shown that a witness has an adverse interest, if it appears that the witness is in fact adverse, the statute is applicable.
Under the circumstances above narrated, we think that there was no error in the action of the trial court stated. That action amounted in substance to no more than to allow the witness, who was in fact adverse, to be examined as an adverse witness under the statute.
It is urged for the accused that for a witness to be introduced as a court witness is not in accordance with the practice in Virginia; and Blackwood Coal Co. v. James. 107 Va. 656, 60 S. E. 90, is cited in support of that position. That was a civil case, in which the court, at 707 Va. p. 659, 60 S. E. at p. 93, said this: • “So far as we are advised, it has not been the practice in this State for the court, of its own motion, to call a witness in a civil case; but it is not necessary, in this case, to consider or decide upon' the right of the court to call the witness in question.”
We are of opinion that in a criminal case, under the circumstances above stated, the court has the right, in the exercise of a sound discretion, to call the witness, as was done in the instant case, and that there was no error in the action of the trial court under consideration.
The trial court certifies as a fact that this “witness had shown on her examination in chief by her demeanor and her answers that she was a hostile witness,” and on that ground permitted the attorneys for the Commonwealth to cross-examine her.
We are of opinion that the statute next above cited is applicable and fully authorized such action of the court. Hence, we find no error in such action.
The judgment under review will be affirmed.
Affirmed.