| Va. | Jul 6, 1893
delivered the opinion of the court.
The record of the proceedings of the trial court in this case, to be reviewed by this court, preseuts no question of the corpus delicti.
About 9 or 10 o’clock in the morning of the 14th day of May, 1892 (Saturday), Ira Mullins, a helpless paralytic who had to travel in a wagon, started in a wagon drawn by two horses, and accompanied by his wife and fifteen-year-old son,
Who perpetrated this dark crime — this inhuman and wholesale massacre of innocent and unsuspecting men, women, and children, travelling peacefully upon the public highway in Wise county, Virginia, at mid-day on the 14th day of May, 1892?
Suspicion pointed to M. B. Taylor, the plaintiff in error,
We have now to review the proceedings of the trial courts below, and to determine whether the plaintifi in error has been lawfully tried and convicted of the awful and atrocious crime of which he has been found guilty by the jury and sentenced to death by the court; whether the evidence in the record warrants the verdict of the jury, and whether the accused, from the beginning to the end of his trial, has been allowed all the safeguards which the law of Virginia throws around
The petition of the plaintiff in error represents that he is aggrieved in the following particulars, viz: “1. Because the said supposed grand jury which returned the said supposed indictment against petitioner' was not constituted as required by law, and J. M. Wampler, who signs and returns said supposed indictment “ a true bill,” was not selected and sworn as foreman of said grand jury as required by law.” This assignment of error is not well taken. The objection is made for the first time here; the defect, if any, should have been taken advantage of by plea in abatement, but it sufficiently appears by the record that John M. Wampler was the foreman, for the court received from the grand jury the indictment signed by him as such, and it moreover appears by the record that' they were all duly sworn. The second and third and ninth assignments of error were abandoned in court and withdrawn. The fourth assignment of error is that no venire was issued directing the sheriff to summon the jury from a list furnished by the court for the trial of petitioner, &c. This is without merit. The venire can only become part of the record by bill of exceptions, and the record shows that the venire was issued by order of the court, and this is all sufficient.
Fifth. “ The court erred in permitting the witness, Germima Harris, to testify that about three weeks before the killing of Ira Mullins his bed was fired into,” &c. The fact that Ira Mullins’ house and bed in which he was lying was fired into about three .weeks before the killing, was important, material, and proper evidence in view of the testimony of sundry witnesses that the prisoner, over ahd over again, mentioned it in a way showing that he had done it himself or had procured it to be done. He said to witness, Noah Hubbard, “ Ira Mullins offered $100 to have me killed on Saturday, and his bed was shot into ou Sunday, but I was over in Kentucky.” He said to witness, Dock Swindall, “ Sometime after he had of
Sixth. “ The court erred in not allowing the witness, John H. Roberson, to answer the question propounded to him, as shown in bill of exception No. 2.” The court very properly refused to permit the witness, John II. Roberson, to give in evidence uneommunicated threats by McFall and others against Taylor made after the killing of Ira Mullins and but shortly before Taylor’s trial. But it does not appear what the answer to the question would have been, and it cannot be said that he was injured by the ruling to reject it, which must affirmatively appear.
Seventh. “ The court erred in refusing to allow the witness, John II. Roberson, to answer the question propounded,to him, as shown in bill of exception No. 3,” &c. The witness answered this question, “ It was the general talk in that community that if McFall and others found Taylor that they would kill him without attempting to arrest him.” This general talk .about the awful tragedy which had been enacted, could not rebut the fact of the prisoner, Taylor’s immediate flight, con-•cealmeut, and attempt to get to Florida; and the court did not •err in refusing to let it go to the jury to rebut the fact in the case : that the “ wicked fleeth when no man pursueth.”
JEKghth. “ The court erred in allowing the witnesses, Clifton Roberson and Floyd Branham, to testify, and the jury to consider their statements, because said testimony tended to contradict the testimony of Mrs. Mary Roberson, a witness introduced by the commonwealth on said point.” It passes all understanding, how testimony discordant among the witnesses for the prosecution could injure the prisoner; and the testimony of these witnesses was admissible on the credibility of the alibi set up by the prisoner.
The tenth assignment is set forth in the sixth bill of exceptions: “The jury was then withdrawn from the court-room, and the witness, Ilenry Hall, stated: ‘The words, as I remember them, was Dr. Taylor told me that this woman, the wife of Henry or Talt Hall, was living at Ira Mullins’, and I told him if that was the case, by watching the house of Mullins he could tell whether either of the Halls came in there or not.’ In this connection, counsel for the defence, in response to question whether they proposed to prove that said woman was, in fact, at Mullins’ house, avowed that they could and would only prove, if permitted, that there was about that time a loose woman staying with Ira Mullins, whose name they could not show; but the court refused to permit said statement to go to the jury.” What relevancy the excluded statement could have had is not discoverable; and it was properly rejected.
The eleventh assignment is: The court erred in refusing to permit the indictment preferred by the grand jury and then pending in the county court of Wise county, against Henry Adams for the murder of Ira Mullins, to go the jury and be considered by them. The record of an indictment against Henry Adams was unconnected with and foreign to the issue between the accused, B. M. Taylor, and the commonwealth; was to inter alios acta, and improper evidence, which was not admissible to go to the jury.
The twelfth assignment of error is based upon the eighth bill of exceptions: “That upon the trial of this cause the commonwealth introduced in evidence two cartridge hulls, 45-75; and the defendant introduced in evidence a Winchester rifle which shot a 45-75 cartridge, and proved that said rifle was the gun of the defendant Taylor. And the defendant also introduced in evidence four 45-75 cartridge hulls, and proved by John S. Wright that the four cartridges were shot by him out of the Taylor gun during the present trial. At the time the gun was introduced it was apparently in shooting
“We, the undersigned, hereby state that we were members of the jury that returned a verdict of guilty of murder in the first degree against M. 13. Taylor, and that after we took the Winchester rifle to our jury room we took the same to pieces and examined it to see whether or not it had been recently tampered with, and especially to see if what is called the plunger, being the piece which strikes the cartridge and causes the explosion, had-been changed in any way since the shooting; and upon such examination we reached the conclusion that the gun had been tampered with recently.”
Then follows the affidavit of J. M. Mills, another juror, in the same words and to the same effect, adding: “Which examination caused me and E. P. Graham, to my own knowledge, to find a verdict of guilty, whde, if we had not made such an investigation, we would not have found such a verdict, &c.”
Then follow the affidavit of Wilson Holbrook, the sheriff of Wise county, and the affidavit of one John A. Miller, that the jury did examine the gun, and that the plunger is now in the gun differently from the way they usually are in Winchesters, & c.
The prisoner’s gun and the four cartridge hulls fired from it, during the trial, by one of the prisoner’s witnesses to show that the plunger in that gun struck the cartridges differently from the cartridge which had done the fiendish work of the cowardly assassins in their ambush, were put in evidence by the prisoner; but the dumb witness of the gun itself mutely convinced an intelligent and scrutinizing jury that the plunger in
The thirteenth error assigned is the refusal of the court to instruct the jury that they could draw no inference from the prisoner’s failure to introduce any evidence to account for his whereabouts on the awful day of the murder of five peaceable and defenceless persons in the public highway, although it was in evidence that he had told the witness, Branham, that he was at that time “waiting on some sick folks on the other side in Kentucky,” or from his utter failure to explain the many other suspicious circumstances that surrounded him. This instruction, as asked for, is vicious, and it was properly refused by the court, who had already in two preceding instructions told the jury that, “in the eyes of the law every man is presumed to be iunoceut until he is proven guilty, and not only is'the burden of proving the guilt of a person charged with crime, on the commonwealth, but to warrant a conviction the guilt of the accused must be proved to the exclusion of every reasonable doubt.”
The fourteenth assignment of error is the modification of an instruction asked for by the prisoner by the elimination therefrom of the phrase, “ the court tells you that to doubt is to acquit,” and the giving by the court to the jury, “The court further tells the jury that circumstances of mere suspicion are not sufficient to warrant a verdict of guilty, but before you can convict the prisoner you must be satisfied from the evidence not only that the circumstances are consistent with the prisoner’s guilt, but they must be satisfied from the evidence that the facts are such as to be inconsistent with auy other rational conclusion than that he is guilty.” The law of reasonable doubt was, by this instruction, given in its most favorable form for the prisoner. In Tucker's Case (reported in 88 Va.), Lewis, P., says, in quotation marks, it has been said, “to doubt is to acquit,” but this follows a clear and emphatic
The fifteenth assignment of error is set forth in the eleventh bill of exceptions, which certifies: “When, as a matter of fact, no reference had been made during the progress of the case to the prisoner’s failure to testify in his own behalf, but the prisoner, by his counsel, urged the court to give the instruction — “ the court instructs the jury that the failure of the defendant to testify in his own behalf creates no presumption against him” — the court then, at the urgent request of the prisoner, by his counsel, gave the said instruction to the jury, stating to the jury that it was given at the request of the counsel for the prisoner.
At the same time that the foregoing instruction was offered the following instruction was asked for by the prisoner, by his counsel: “The court further tells the jury that they should not draw any inference against the prisoner because he failed to produce witnesses from the State of Kentucky to show where he was on the day of the killing.” This last instruction the court refused to give. This assignment of error is not well taken. The instruction, number one, was given on the prisoners own motion and urgent insistence; albeit, that no reference had been, nor properly could be, made to the prisoner’s failure to testify in his own behalf; and the instruction number two, asked the court to invade the province of the jury, and to tell them that they could not draw any inference whatever from the failure of the prisoner to even attempt to do what he told the witness Branham — that he “ could prove
The sixteenth assignment is that “the court erred in refusing to set aside the verdict of the jury because the same is contrary to the evidence.” A careful scrutiny and anxious consideration of the evidence in the record leaves no doubt in the mind of the court of the guilt of this prisoner and the correctness of the verdict of the jury, and a critical review of all the proceedings of the trial court, at every stage and in every particular, constrains us to affirm the judgment pronounced upon that verdict, and to vindicate the majesty of the violated law. The trial of the prisoner was presided over and conducted by a careful and conscientious judge, whose rulings on all points were correct, and a jury of twelve honest and intelligent men from the vicinage, qualified and free from exception, after seeing face to face and hearing the witnesses, one and all, have found the prisoner, M. B. Taylor, guilty of murder in the first degree. In this court the case must be considered as on a demurrer to evidence; and a simple statement of the evidence will show the prisoner’s guilt conclusively and beyond a rational doubt. Of the seven in the party of unarmed and helpless men, women and children that received the murderous volley from the ambush only fifteen or twenty-five steps from the roadside, at midday of the 14th of May, 1892, only two escaped sudden and instantaneous death. John II. Mullins, the fifteen-year-old son of Ira Mullins and his wife (both of whom were killed), ran from the scene at the first fire, and did not see any of the persons who did the shooting, though a shot passed through his clothing and cut his suspenders behind. He proves (as several.other witnesses do) that Ira Mullins had
Dock Swindall testified : I live 150 yards from Ira Mullins’
Another witness, Grigg Swindall, confirms all the testimony of the foregoing witness, Dock Swindall.
Reuben McFall testifies that Dr. M. B. Taylor proposed to him at various times, to go with him and kill the Mullins boys — Ira and Henderson. The last time he mentioned it to me, he said he had gone once by himself and put a man out of the way, and if we boys would not go with him, he would be damned if he could not go by himself and do it again.
Granville Cox .testified: Taylor tried several times to get me to go to Kentucky with him to kill Ira Mullins and Hendei’son Mullins; said he wanted us to go and help clean up the head of' Elkhorn. He said, If I don’t get it done this year I will do it next year, or have it doue.
John Branham testified that he saw Taylor (the prisoner) Thursday after the killing and he had a Winchester gun. He
W. M. Gilliam testified, that about one week before the killing he met M. B. Taylor (the prisoner), who told him that Ira Mullins had tried to hire Doe Mullins to kill him; and said he was over in Kentucky, and some one shot in Mullins’ bed. He said, The spirits told me of it, and he laughed, and said, you have not got sense enough. This statement is confirmed by Milburn Gilliam and Joe Perkins, who heard the conversation detailed by the witness, W. M. Gilliam.
Miss Mary Branham and Logan Nottingham testified that they saw M. B. Taylor (the prisoner) and Cal. Fleming on Sunday night before the killing, going in the direction of Pond Gap, riding fast and sitting up straight in their saddles.
George B. Roberson and John Venters testified to seeing M. B. Taylor with the Fleming boys, all armed with Winchester rifles, repeatedly just previous to the killing and subsequently thereto.
Time, place, motive, means, opportunity, and conduct, both before and after the killing, all concur in pointing to the prisoner and .the Flemings — Calvin and Henan — as the three guilty assassins, who were recognized in the act by Mrs. Jane Mullins. When last seen before the killing, the prisoner was going, under the cover of night, with hispai, Calvin Fleming, in the direction of Pound Gap, where Ira Mullins had, unexpectedly to him, gone the day before from his home, where he had told Doc Swindall to keep him located until the trouble came up, and that he would be at his (Doc SwindalFs) house every other night till the trouble came up. But- the prisoner
Judgment affirmed.