22 Gratt. 924 | Va. | 1872
This is a writ of error to a judgment 'Of the Circuit court of Bedford county, affirming a judgment of the County court of said county, convicting the plaintiff in error, Harold P. Bead, of maliciously shooting one George S. Merriman, with intent to maim, disfigure, disable and kill him. The questions arising in the case are presented by two bills of exceptions, taken by the plaintiff in error in the course of the proceedings in the County court; one of them to the opinion of said court overruling the motion of the prisoner to set aside the verdict of the jury and grant him a new trial, upon various grounds set out in the first bill of exceptions ; and the other, to the opinion of said court overruling the motion of the prisoner to arrest judgment on said verdict, upon the ground set out in the second bill ■of exceptions. I will consider these questions in their order; and first those which arise on the first bill of exceptions.
The motion to set aside the verdict and grant a new trial was based upon four grounds, viz: 1st. That the verdict of the jury was against the law and the evidence in the cause.
2nd. Because, since the rendering of said verdict the prisoner had discovered important evidence, which he could not have before discovered by reaspnable diligence, material to his defence on said trial; and which,
3rd. Because the jury were influenced in making up their verdict by improper considerations, not admissible under the evidence, and not warranted by it.
4th. Because of the improper and irregular treatment of the jury during the trial, by being committed, after they were sworn and during the trial, to the custody, and exposed to the influence, of a deputy sheriff, who was a wituess, and had testified to material facts on behalf of the Commonwealth on said trial.
Ought the verdict to have been set aside and a new trial granted on either of these four grounds; and,
1st. That the verdict was against the law and the evidence.
In considering this ground it may be material, first, to enquire whether the facts proved, or only the evidence introduced, on the trial, are certified in the bill of exceptions. While it is well settled that an appellate court may revise a judgment of the court below, refusing a new trial on the ground that the verdict is contrary to evidence, even in a criminal case, in behalf of the accused; yet it is also well settled that the bill of exceptions must so present the case as that the appellate court may be able to see whether sthe jury has correctly applied the law to the facts of the case, and to correct any error which the jury may have committed in that respect. Regularly, the facts, instead of the evidence, ought to be certified in the bill of exceptions; and where there is a conflict or complication of evidence, the court may, on that ground, be unable or unwilling, and, therefore, refuse, to certify the facts; and then the appellate court cannot revise the judgment, unless the evidence be certified, and then only on certain conditions. That is, the court will not in that case reverse tbe judgment, unless, after, rejecting all the parol evidence for the ex-ceptor, and giving full faith and credit to that of the
"Whether the court of trial intended to certify the facts, or the evidence only, is sometimes a doubtful question. Iu form, it sometimes appears that the certificate is one of facts: whereas, in substance, it is a certificate of evidence only; and so, on the other hand, it may, in form, appear to be one of evidence only, when it was intended to be one of facts. .Each case must depend upon its own circumstances, and the appellate court must determine, as well as it can, what is the character of the certificate in that respect. On this subject see Bennett v. Hardaway, 6 Munf. 125; Jackson's adm'r v. Henderson, 3 Leigh, 196; Patterson v. Ford, 2 Gratt. 18; Vaiden's case, 12 Id. 717. Where the matters certified iu form as facts are in any respect conflicting, it is evident that the certificate, iu that respect at least, is of evidence and not of facts, because facts cannot be conflicting, but must be consistent with each other.
The certificate in this case may be said to be in form a certificate of facts. It commences by saying: “The court doth certify that the following are the facts, and all of the facts, proved before the jury on said trial.” It then proceeds to state what each witness on behalf of the Commonwealth and on behalf of the prisoner “proved,” in detail; and it concludes each statement by saying, that the foregoing are all the facts proved “ on behalf of the Commonwealth,” and “ on behalf of the prisoner,” respectively.
But when we come to examine the “ facts proved,” as stated by the several witnesses, we find such a conflict between them in most material respects as to show that the certificate, though, in form, one of facts, is
Now if this be a true-account of the blow, and it, and not a previous grudge or provocation, was the cause of the shooting, such shooting could hardly be considered as malicious—at least, without satisfactory evidence that the act was done deliberately, and not in heat of blood. But all the other evidence on both sides represents the blow as not having been near so violent, while it varies materially in itself as to the nature of the blow. Merriman himself says he “struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” Hogan’s evidence is to the same effect. Kearns says “he saw prisoner put his hand on Merriman’s shoulder, seemingly in a gentle manner; then Merriman gave prisoner a lick or a shove, saying ‘go away from me and let me alone; I don’t want to have anything more to do with youthen firing commenced.” From this account, taken by itself, it would appear that the blow, if blow it could be called, was slight, and that the shooting, even though caused by the blow alone, was malicious. Franklin says he “saw Merriman strike or shove the prisoner. It was between a shove and a blow; prisoner fell back about ten feet; seemed to be getting back to get his pistol;” “thinks blow not suf
Other witnesses besides Martin, examined in behalf of the prisoner, testified as to the nature of the blow. One of them, Lee, the prisoner’s brother-in-law, says that “M. struck the prisoner and knocked him back some ten feet. It was a heavy blow. Then prisoner drew his pistol and fired.” This testimony rather tends to confirm that of Martin. But another of the prisoner’s witnesses, Douglass, gives testimony tending the other way. lie says he “ saw M. strike or shove prisoner off several paces, and then prisoner commenced firing.” Thus describing the blow in almost the same language in which it is described by two of the witnesses for the Commonwealth, to wit: Kearns and Franklin, and concurring with them in representing the blow to have been a slight and not a heavy one.
There are other material facts about which there is a conflict in the evidence; but enough has been stated to show that the County court really certified in the bill of exceptions the testimony in full of the witnesses, and not the facts only, which the court considered to be proved by them.
Regarding the certificate, then, to be one of evidence, and not of the facts which the court considered to be proved by the evidence, we must reject the evidence in behalf of the prisoner, and consider the case upon the evidence on the part of the Commonwealth, according to the rule established by cases before referred to. See Vaiden's case, 12 Gratt. 726, and the cases there cited. Applying that rule to the case, it will be found, I think, to be a very plain one. "We have only to take the testimony of the witness, Merriman, who states the whole case from the beginning to the end; examine, in con
Before I review Merriman’s testimony, I will remark in regard to it, that it seems to be in conflict with none of the other testimony, either that in behalf of the Commonwealth, or that in behalf of the prisoner. He-omits, perhaps from inadvertence, a few particulars stated by other witnesses, but those particulars are consistent with what he states. Even the testimony of the prisoner’s witness, Martin, in regard to the severity of the blow given by Merriman to the prisoner, is not in conflict with the testimony of Merriman, who, while he gives no particular description of the severity of the blow, admits that he “ struck” the prisoner, who “staggered back several feet, and drew his pistol and fired at witness.” The testimony of this witness is, therefore; no doubt substantially true. But whether so or not, if must be so considered in disposing of the question now before us.
Merriman states that he had played at cards with prisoner and others, at the November term, 1871, of Bedford County court, and had then lost .a twenty dollar note, which he believed had been stolen from him. At January term, 1872, of said court, at Liberty, and in the morning of said day, witness went to prisoner and mentioned the loss of the note to him, and prisoner said he was innocent in the matter, and if witness would give him time he would show his innocence. Witness-then told prisoner he would give him time. In the afternoon of the same day witness went again to prisoner and asked him about the note. Prisoner again said that if witness would give him time he would show his innocence; and witness again told him he would give him
On the 11th day of July following, in the night time, prisoner was passing along the public road near the residence of the mother of witness, with whom witness lived, and called witness out in the road where prisoner was •sitting on his horse, and had a conversation with witness about the note, and told witness he must take back the charge he had made against prisoner about the note. Witness said to prisoner that he would not take it back. Prisoner then said to witness that if he did not take it back he would shoot him. Witness replied, “Shoot then.” And prisoner rode off home, saying, I will see you again at court. On the 23d day of July (same month) witness came to Liberty court day. About 10 or 11 o’clock in the morning he saw prisoner in the •courthouse yard, near the door of the office of James F. Johnson, engaged in conversation with Preston Burton. Witness went to where prisoner was engaged in this conversation and found it was in regard to the bank note. After some conversation had about the matter between Burton and the prisoner, prisoner said to witness that he, witness, had told the prisoner that Burton had said that he, Burton, had seen the prisoner take the note from the pocket of witness, and that Burton denied that he had ever said so. Witness then said that he had never said to prisoner that Burton made that statement.
After the interview spoken of between prisoner and witness at the bar room, witness went to his sister (Mrs. Lucy Dennis), who resides in Liberty, and borrowed from her the pistol which he subsequently used in the fight with prisoner in front of Perguson’s hotel. It was a five shooter, similar to the one used by prisoner in the fight, and every chamber was loaded. In the afternoon of said day, between the hours of 3 and 6 o’clock, the prisoner called witness to him and asked him to take a walk; that they walked across -the street, and when they reached the front of the door of Perguson’s hotel facing the courthouse lot, witness said to prisoner that he would go no further; that he intended to go into Perguson’s and get a drink; prisoner then said this matter must be settled right now; witness then said let
Witness was shot in two places—on the top of the right shoulder, and on the front of the right arm, between the elbow and the top of the shoulder. The ball that struck the shoulder went out in rear of the shoulder, and the one that struck the arm ranged upwards along the arm, and lodged in the muscles over the right chest. Immediately after the shooting, Dr. JBowyer dressed the wounds and cut out the ball that was lodged as aforesaid. Witness was in bed about Wo days from his wounds; was lying about the house about two weeks, and they were well at the time of the trial. When the difficulty occurred in front of Ferguson’s hotel witness did not think, as he stated, that prisoner intended to shoot until he saw him draw his pistol. Witness and prisoner had both been drinking during the day on which the shooting occurred, and both were under the influence of liquor when the shooting took place.
Wingfield, another witness for the Commonwealth,
Scott, another witness for the Commonwealth, states that prisoner put up his horse at the livery stable of witness in Liberty, on the morning of the 23d of July. Saw him again about 2 o’clock of that day; was talking a heap of foolishness, and said something about that money; said George must take that back; if he didn’t take it back there would be some shooting. Witness thought it was liquor talking. Prisoner was drunk— so drunk that he staggered; had to hold to a peg in the stable in order to be able to stand. This was an hour or more before the shooting occurred. Prisoner and Merriman seemed always to be friendly; saw them walking the street together a short time before the difficulty.
In regard to the conduct and manner of the prisoner at the time of the shooting, Franklin, a witness for the Commonwealth, says “prisoner seemed to handle himself well and very cool;" and Martin, a witness for the prisoner, says “prisoner rose and drew his pistol from under his coat tail, and shot at Merriman two fair and deliberate fires, as if he had a post planted; did not seem to be excited or alarmed.”
I have stated the evidence (or so much of it as seems to be material to be stated in the view I am now taking of the case) thus fully, because it is necessary to make such a statement in order to determine the question now before us, whether the verdict of the jury was contrary to law and the evidence, and whether, on that ground,
■ There is certainly no good ground for dispute about the law which is to govern us in the decision of the question. The conviction was of malicious shooting with intent to kill. Whether the prisoner was guilty of malicious shooting with intent to kill or not, depends entirely upon the question whether, if the prisoner had killed Merriman, iustead of only wounding him (with intent to kill, &c.,) the offence would have been murder, either in the first or second degree—it matters not which—or would have been only manslaughter, or homicide in self-defence. If it would have been murder, then the prisoner was guilty of the offence of malicious shooting with, intent to kill, of which he was convicted. If it would not, then he was not guilty of that offence, however guilty he might have been of another offence, as of unlmoful shooting with intent to kill, &c. That it would have been homicide in self-defence, is not pretended, and there is certainly no ground for pretending. The only question, therefore, is whether it would have been murder or manslaughter.
The distinctions between murder and manslaughter, at least so far as concerns this .case, have been settled for centuries, and can admit of no question ; and I will not take time to repeat what has already been repeated more than a thousand times, the definitions of these two offences. I will only say on this subject that every unlawful homicide must be either murder or manslaughter ; and whether it be one or the other depends alone upon whether the party who perpetrated the act did it with malice or not—malice either express or implied. That one word malice is the touchstone by which the grade of the offence must be determined. "When a homicide is . committed in the course of a sudden quarrel or broil, or mutual combat, or upon a sudden provocation, and
It is not only necessary in such a case and for such an effect that a reasonable provocation should be received, but it is also necessary that the provocation should have the effect of producing sudden passion under the influence of which alone the offence is committed. It must be a sudden transport of passion, which the law calls furor brevis. If a person on receiving the gravest provocation, is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defence, he is guilty of murder. The law mitigates the offence to manslaughter, only as an indulgence to the infirmity of human nature. Provocation without passion or passion without provocation will not do ; both must concur to reduce the offence to the grade of manslaughter.
Again, if an unlawful homicide be committed in pursuance of a preconceived purpose, the offence will be murder, no matter how great sudden provocation may have immediately preceded the act. The provocation
In this case, if there had been no evidence of an antecedent grudge, or of previous threats and preparation for the commission of the act; in other words, if it had been the case of a homicide committed alone on sudden provocation ; and the jury had found the accused guilty of murder, it would have been difficult, consistently with the rules of law, even for the court of trial to set aside the verdict, much less for an appellate court to reverse the judgment on the ground that the verdict was contrary to law and evidence. It would have been a question for the jury to decide upon all the evidence ; and, looking to the nature of the provocation, being between a shove and a blow, according to some of the evidencé ; to the deadly nature of the weapon used by the offender, which was carried secretly about his person, perhaps for the very purpose ; to the cool and deliberate manner in which he used it, thus indicating an absence of sudden passion, and the presence of a malicious purpose ; even the court of trial could not well have said that the evidence did not warrant the jury in finding such a verdict. But that court being satisfied with the verdict, and refusing to set it aside, surely an appellate courtwould not have reversed the judgment.
But in this case there was abundant evidence of an antecedent grudge and previous threats, and preparation
blow, could the judge who presided at the trial of this case say that the jury were not warranted in finding that the shooting was malicious, even if he could have said that, if upon the jury, he would have found a different verdict from that which was found ? Could he have said that the evidence was plainly insufficient to sustain the verdict ? It was a case peculiarly proper for the determination of the jury upon all its facts and circumstances. The judge who presided at the trial, and who, like the jury, saw the witnesses and heard them give their testimony, was satisfied with the verdict, and refused to set it aside. And the judge of the Circuit court has affirmed the judgment of the County court, giving his reasons for so doing in an able opinion, which is inserted.in the record. Can this court, which has not the great advantages that the jui’y and the court of trial had, in seeing and hearing the witnesses, but must look at the case in the necessarily imperfect manner in which it is presented in the record, undertake to reverse the judgments of two courts, and to set aside the verdict of the jury, in a case which it was their peculiar province to decide, and which they had so much better means of deciding than this court can possibly have? This court, though it has the power to reverse the judgments of the courts below, and set aside the verdict, has no power to decide the cause; all it can do in that way is to remand the cause for a new trial by another jury. But it has already been tried by one jury, and there is no good reason for believing that another jury would come to a different result. But whether they would, or might, or not, I- think this is-
'’•'If a person has received a blow, and in the consequent irritation immediately inflicts a wouud that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and therefore, though there have been an actual quarrel and the deceased shall have given a great number of blows, yet if the party inflict the wouud, not in consequence of these blows, but in consequence of previous malice, all the blows would go for nothing.” “ And so in the case before us,” said the court in Slaughter's case, “ we may say the deceased committed a violent assault upon the prisoner in throwing the brick at him ; but did the prisoner shoot him in consequence of the ungovernable passion excited by that assault ? or did he seize upon it as an opportunity of gratifying his previous malice, and carrying into effect a preconceived design to take the life of the deceased? Those were questions that belong to the jury to decide ; and if the record contains testimony from which the jury might reasonably conclude, as they did, that the killing was the result of malice aforethought, then it would be an invasion of their province for this court to interfere and set aside their verdict.” In McCune's case the language of the court is very strong on the same subject. In' Hill's case the court say: “ Has the Commonwealth made out a case of wilful, deliberate and premeditated killing ? And here it should be premised that this was a question resting upon the tendency and weight of' the evidence, and proper for the jury to determine. And where the jury and the
I have thus far been considering the case as upon a certificate of evidence only, and according to the rule which applies to such a case, have disregarded the parol evidence in favor of the prisoner. “But the result will not be varied,” as was said in Bull's case, 14 Gratt. 618, 622, “even if the objection to the form of the bill of exceptions be disregarded, and all the evidence therein set forth as well for as against the prisoner be considered. In pursuing that mode of deciding the case, it would, of course, be necessary to disregard all the evidence of the prisoner in conflict with the evidence against him. Eor, indeed, will it be varied if we consider the certificate as a certificate of facts, if it be possible so to consider it; nor even if we regard the evideuce of the prisoner as true where it is in conflict with the evidence of the Commonwealth, and to that extent reject the latter evidence, thus reversing the rule which properly applies to such a case. In any view which can be taken of the case, the question was a proper one for the jury to decide upon all the evidence before them.' And the jury having so decided it, and the judge who presided at the trial having been satisfied with the verdict and refused to set it aside, this court cannot properly reverse the judgment, on the ground that it was contrary to the evidence.
I will now consider the other grounds of the motion to set it aside; and,
It is admitted that the rules on this subject are correctly laid down in 3 Wharton’s Am. Cr. Law, § 3161, and Thompson’s case, 8 Gratt. 641; and that after-discovered evidence, in order to afford a proper ground for the granting of a new trial, must: 1st, have been discovered since the former trial; 2ndly, be such as reasonable diligence on the part of the defendant could not have secured at the former trial; 3dly, be material in its object, and not merely cumulative and corroborative or collateral; and, 4tbly, must be such as ought to produce, on another trial, an opposite result on the merits. Without saying anything in regard to whether the first and second of these four requisitions are complied with in this case,' I think it very clear that the third and fourth are not. To say the most of it, the alleged after-discovered evidence is merely cumulative and corroborative, and is not such as ought to produce on another trial, an opposite result on the merits. It does not tend to discredit Merriman ; and if it did, the general rule is that a new trial will not be granted, where the object is to discredit a witness on the opposite side. 3 Whart. § 3184; Thompson’s case, supra. In regard to “the remarkable statement of John W. Scott, that he knew that the twenty dollar bank note spoken of was not stolen by the prisoner, but was won in gaming by him from Merriman,” I agree with the learned judge of the Circuit court in saying, that said statement, “if true, would not be relevant or material testimony on the trial of the prisoner for malicious shooting. But it does seem very strange that this person who was examined as a witness on the trial, and who knew of the difficulty between Merriman and the prisoner, and that the latter was threatening to shoot the former for charging him with stealing the note, should never have spoken of it until after the trial, when one word from him would have settled all difficulties between them.” I am of
3dly. As to the ground that the jury were influenced in their verdict by improper considerations.
The only support offered to sustain this ground was the affidavit of Scott, that he heard two of the jury say that they had rendered their verdict in part on account of the defendant’s failure to explain before them the matter of the twenty dollar note which he was charged to have stolen. To say nothing of the doubtful character of this witness for veracity, for reasons before stated, it is euough to say, that even the affidavits of the two jurors themselves to the same effect would have been an insufficient ground for setting aside the verdict •of the jury. “Though the former practice was different,” says Wharton, “it is now settled in England that a juror is inadmissible to impeach the verdict of his fellows. 4It would open each juror,’ declared Mansfield, ■C. J., {to great temptation, and would unsettle every verdict in which there could be found upon the jury a man who could be induced to throw discredit on their common deliberations.’” 3 Whart. § 3155. In this country the English rule has generally been adopted. Id. In Thompson’s case, 8 Gratt. 641, 650, Thompson, J., in delivering the opinion of the court, admitted the well settled English, rule, and the great preponderance of American authority in the same way, and he quoted the strong language of Chief Justice Hosmer, in 5 Conn. R. 348, that “the opinion of almost the whole legal world is adverse to the reception of such testimony, and in my opinion, on invincible foundations.” In Bull’s case, 14 Gratt. 613, 626, 632, most of the authorities, English and American, including those of our own State, on this subject, were referred to; and this court concluded that, “in view of all the authorities, and of the reason on which they are founded, we think, as a general rule, the testimony of jurors ought not to be received to
But in this case we have not the affidavit of the two jurors themselves, but only the affidavit of a third person, as to what he says he heard them say; and it is laid down that “the affidavit of third persons as to what they have heard jurors say respecting their verdict, is inadmissible to impeach it.” 3 "Wharton, § 3156. In this case, too, we have counter affidavits of two others of the jury, that in deciding the case and rendei’ing their verdict, the question of the guilt or innocence of the prisoner in taking the twenty dollar note which Merriman charged the prisoner with having taken, was not discussed or considered by the jury—at least, so far as the affiants heard or believed. I am of opinion that the ground thirdly relied on as aforesaid for setting aside-the verdict was insufficient for that purpose.
4thly. As to the ground that the jury, after they were sworn and during the trial, were committed to the custody and exposed to the influence of a deputy sheriff, who was a witness and had testified to material facts in behalf of the Commonwealth on said trial.
I do not think I can answer this objection in stronger or more appropriate language than that which was used by the learned judge of the Circuit court on the same subject, and which, therefore, I adopt as mine. “The counsel for the prisoner argue that this was improper, and liken it to a case of a separation of the jury, or their'improper intercourse with persons not of the jury. If it had even been shown that the deputy sheriff1 was an important witness, or had any feeling against the prisoner, it seems to me that it would be going a great length to presume that he had violated his duty and his oath, by speaking to the jury on the subject of the trial. He took an oath that he would not speak to them himself on the subject of the trial, nor suffer any other person to speak to them. The sheriff is obliged to speak
In this case it does not appear that the deputy was summoned as a witness. He was not examined in chief, but was called on as rebutting evidence to prove a single fact, viz: that the prisoner did not fall when he was stricken by Merriman—a fact not very material, and which was proved by a number of other witnesses who testified in the cause—indeed, by every one who testified on the subject, except Jordan Martin. The sheriffs who had custody of the jury were sworn in court every evening in the presence of the prisoner and his counsel; and if there was any objection to any of them having charge of the jury, it ought to have been made then; and if there was any reason for it, the court would doubtless have prevented any improper person from having charge of it. That the deputy sheriff, Uasey, should have been casually called on in the progress of the trial, to prove a single fact which transpired in his presence, and had been already proved by several witnesses, certainly did not show that he had any feeling about the result ■of the prosecution, or legally disqualify him from keeping the jury. It did not tend to show that he was an unfit person to perform that office, and he might, notwithstanding that fact, have been a very fit person for that purpose. The prisoner may have had perfect confidence in his integrity, aud may have preferred that he should continue to keep the jury after he had given evidence. That he was sworn for that purpose in the presence of the prisoner, without any objection being made on his part, shows that he had no objection to
My attentioffhas been called to the case of McElrath v. The State, 2 Swan R. 378, which is supposed to have a material bearing on the question I am now considering. I always regard with respect a decision of the highest court of a sister State, especially when it is supported by good reasons, although it is not a binding authority in this State. Butin my opinion, and with all respect for the - opinions of those who differ from me, that case is not at all in point. There a new trial was awarded a prisoner convicted of manslaughter, because it appeared that during the progress of the trial the prosecutor spent a night in the room with the jury, who' had been committed by the court to the care of a constable, though the prosecutor was the sheriff of the county, and all exceptions to the competency of the panel of jurors summoned by him were waived by the prisoner, and though the prosecutor stated in an affidavit, that he “made use of no means of any sort to influence the jury.”
Of all persons concerned in a prosecution, the prosecutor himself is the most interested, and the most unfit to have charge of the jury; and accordingly, in that case, the jury was placed in the care of a constable, who took an oath to keep them separate from all other persons, and suffer no one to have any communication with them. Under these circumstances, it -was an act of great misbehavior in the prosecutor (though he was sheriff) to obtrude himself into the room with the jury and stay with them all night, and it was an act from which the prisoner might have sustained great detriment, notwithstanding the affidavit of the sheriff that he made use of no means to influence them. It is true
I am of opinion that this fourth and last ground relied on for setting aside the verdict was insufficient for that purpose. • ^
And now I have but one remaining point to consider, which is the point presented by the second bill of exceptions, to wit: that on the 11th day of September 1872, when the prisoner was brought into court to hear judgment on the verdict, the term of the court at which he was tried had ended, and it was not competent for the court to enter up judgment on said verdict: and, therefore, that the court ought to have sustained, and not overruled, his motion to arrest said judgment on that ground.
JBy the Code, ch. 152, § 15, it is provided, that “ every such term of said courts (to wit: the couuty courts) may continue, if it be a monthly term, not exceeding six •days, and if it'be a quarterly term, not exceeding twelve days.” By the act of April 27, 1867, acts of Assembly 1866-’67, ch. 118, § 3, p. 944, the 15th section of ch. 157 of the Code is amended and re-enacted, the amendment providing that “ every such term of said courts may continue, not exceeding fifteen days, and may adjourn from day to day, or to any day within the fifteen days.” By the act of April 2, 1870, acts of Assembly 1869-’70, ch. 38, p. 35, passed after the adoption of the present constitution, chapter 157 of the Code of 1860, was amended and re-enacted. The chapter as amended consisted of 11 sections, while the original chapter consisted of 18. The amended chapter, § 2 provides, that “there shall be held in each county of this Commonwealth, monthly, a term of the County court, to be held at the times prescribed by law, and with the jurisdiction hereinafter provided.” But neither in that section nor any where else in the chapter, is any thing said about the duration of the term; while § 10 repeals “all acts
But it is contended that the provision in the act of 1867, fixing the duration of the term, not being inconsistent with any provision of the act of 1870, is not repealed by that act, but yet remains in full force ; that the term of the court at which the prisoner was tried could not be continued longer than fifteen days, counting the Sundays which happened during that period in the number of days fixed for the duration of the court; and that the judgment having been pronounced on the 11th day of September 1872, which was the sixteenth day from the commencement of the term, counting the two Sundays which intervened (though only the fourteenth day from said commencement, not counting those Sundays), the said judgment was pronounced after the end of the term, and therefore was void.
The question whether the aforesaid provision of the act of 1867 was repealed by the act of 1870, is an interesting question, but not necessai’ry to be decided in this case in my view of it. As I am clearly of opinion that, if the said provision was not so repealed, but yet remains in full force, and the duration of the term of
I have now considered and disposed of all the questions arising in this case. I regret that my opinion should have been extended to so great length, but felt that it was proper to examine fully the arguments made by the very able counsel of the prisoner, both in this cuirt and in the court below. I think there is no error in the judgment, and am for affirming it.
“ When fresh provocation occurs be
But whatever may have been bis intention or purpose
If there was p'reconceived malice, it appears from the evidence that he received grievous fresh provocation ; and it does not clearly appear from the evidence, in my opinion, that the shooting was upon the antecedent , malice, which, as we have seen, it was incumbent on the Commonwealth to make clear. On the contrary, I think it does plainly appear that it was caused by the fresh provocation. I am convinced from the evidence, that the prisoner would not have shot if he had not been struck by Merriman. And there is no evidence that he did any thing to provoke him to strike him. On the contrary, the evidence shows that he endeavored to appease him ; that he put his hand gently upon him and begged him to desist, and let the matter drop, when he was struck a blow by Merriman, as to the force and violence of which there is a difference of opinion among the witnesses ; but which was of sufficient violence, according to the testimony of Merriman himself, to stagger him back two" or three feet; according to the testimony of other witnesses eight or ten feet, and according to the testimony of one to fell him to the ground, he catching on his hands. Ho other witness saw him fall. The prisoner then drew his pistol, and about the same time Merriman attempted to draw his, but it hung in his coat, and the prisoner shot first, evidently, according to the testimony of the physician who dressed Merriman’s wounds and extracted the ball, while he (Merriman) was in the act of drawing his pistol.
I concur with the president in his exposition of the law, and only differ from him in inference from the facts proved. I regard the certificate of the judge of the court of trial as a certificate of facts, upon the authority of our decision in McClung’s adm'r v. Ervin, recently decided and not yet reported, in which the cases on the subject of new trials are reviewed. But if it is a cer
I am of opinion, therefore, that the fresh provocation which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting, and that the jury were not justified by the evidence in ascribing it to preconceived malice—if, indeed, any ever existed. I think the evidence shows that the prosecutor was to blame from the beginning to the end of the controversy. lie charged the prisoner with stealing his money, and instead of prosecuting him for it, and discarding him as a thief, he was cheek by jole with him. whenever they met; his social and friendly intercourse with him were unaffected by the belief of Merriman that he was a felon. But on the occasion of the fight, conscious of being armed himself with a revolver, he goaded the prisoner to make an assault on him, by hectoring and bullying over him, and belching in his teeth the most abusive and insulting language, and assuming towards him the most offensive attitudes, all of which was unavailing to provoke the prisoner to an attack, until he, without provocation, struck the blow which sent him .reeling from him; and then the prisoner drew his pistol (the prosecutor drawing his almost simultaneously) and fired on him, and slightly wounded him.
I am of opinion, from the best view I can take of the evidence, that the fresh provocation, which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting; and that the jury were not justified by the evidence in ascribing it to preconceived malice.
•I deem it unnecessary to notice the other grounds on which the reversal of the judgment is asked, this being, in my opinion, sufficient. But I will only add that I think it a bad practice, during the pendency of a criminal trial, to commit the custody of the prisoner to a sheriff, who is examined as a witness for the Commonwealth, whether he had been regularly subpoenaed as a witness or not. In order to preserve the purity of trial by jury, I am not prepared to say that public policy does not require that the judgment in this case should be reversed upon that ground alone, if there was no other.
Upon the whole, I am of opinion that the judgment should be reversed, and a new trial awarded the prisoner.
Judgment affirmed.
