24 Gratt. 657 | Va. | 1874
delivered the opinion of the court.
This is a writ of error to a judgment of the Circuit court of the county of Charlotte, rendered on the 80th day of September 1878, convicting Susan Thornton of the murder of her husband, William Thornton, by poison, and sentencing her to he hung therefor.
The indictment was in the usual form in such cases, and contained two counts. The first was a count charging the said Susan Thornton and one Ed. Kobinson jointly with the commission of the offence, as principals in the first degree. The second charged her as principal in the first degree and Mm as accessory before the fact. On their joint arraignment in the County court, on the ■3d of March 1873, they elected to be tried in the Circuit •court of said county. Afterwards, in the Circuit court, •Susan Thornton, by counsel, moved the court to quash the second count in the indictment, which motion the court sustained ; and thereupon she pleaded not guilty, •and was tried separately. The jury found her guilty of murder in the first degree, as charged against her in the indictment. Whereupon she moved the court to set aside the verdict and grant her a new trial; which motion the court, after taking time to consider, sustained. Afterwards, to wit: in September 1873, she was again tried, and 'again found guilty of murder in the first degree, and judgment was rendered accordingly.
The record states that after reading the indictment to the jury, on the second trial, they were charged to en-quire “whether the prisoner be guilty of the murder as charged in said indictment or not guilty; and if they find her guilty of murder in the first degree, say so, and no more; but if they find that she attempted to administer poison with intent to kill or injure, she shall be confined in the penitentiary, so that such term be not
After the second verdict was rendered, the prisoner by counsel moved the court to arrest the judgment; which motion the court overruled; and the prisoner, by counsel, excepted to the said action of the court. Then the prisoner, by counsel, moved the court for a new trial; which motion was also overruled; and the prisoner, by counsel, excepted to the action of the court in that respect also. The five exceptions aforesaid present the questions arising in this cause, which will be considered in the order in which the exceptions were taken.
The questions arising on the first and second bills of exception will be considered together. The first states that the whole indictment, including both counts, which are set out in the bill of exceptions, was read to the prisoner when she was put at the bar for trial, and the jury were charged in the words aforesaid. “And no objection having been previously made to the reading of the indictment and the charge given by the clerk, in manner and form as above stated, the prisoner’s counsel here stated that he desired to except to the-reading of the said indictment as above stated, and to the charge as above
The second bill of exceptions states that after the indictment had been read, and the jury charged as spedfied in the first bill of exceptions, the indictment, including only the first count, was again read to the prisoner, and the jury were again charged as aforesaid. “And no objection having been previously made to the second reading of the indictment and the second charge to the jury, as above specified, the counsel for the prisoner here stated that he desired to except to reading of the indictment as aforesaid the second time, and the charge of the cleric as aforesaid the second time, and prayed that this his second bill of exceptions” might be signed and sealed by the court; which was accordingly done.
The whole indictment, including both counts, having, by mistake, been read to the prisoner, aud the jury charged thereupon, though the second count had previously been stricken out, it was of course proper, when the mistake was discovered, to correct it, by reading again the indictment, including the first count only, and again charging the jury thereupon. When this was done, the case stood as if the mistake had never been made. And this disposes of the first bill of exceptions, which may therefore be considered as out of the case. The main question intended to be presented by the first and second bills of exception, and the only one about which there can be any doubt, is thus stated in the petition for a writ of error in the case: “. that the chai’ge of the clerk to the jury was contrary to law, in this, that the clerk failed to charge the jury as to the different grades of homicide.” We will now proceed to consider that question.
That part of the charge, which is to the effect that “ if you find that she attempted to administer poison with intent to kill or injure, she shall be confined in the penitentiary, so that such term be not less than three nor more than five years,” was certainly unnecessary and not required by anything in the facts of the case. It was intended to apply to the provision in the Code of 1860, ch. 191, § 7, which declares that “if any free person administer, or attempt to administer, any poison or destructive thing in food, drink, medicine or otherwise,” &c., “with intent to kill or injure another person, he shall, be confined in the penitentiary not less than three
We are therefore of opinion that the Circuit court ■did not err in regard to the matter stated in the first .and second bills of exceptions, or either of them.
And now, as to the third bill of exceptions. That bill ■states that in the further progress of the case, after the •evidence and arguments of counsel had beeu concluded, .and the court, upon the motion of the prisoner’s counsel, •had instructed the jury as to the law, in terms that were ¡accepted by the counsel on both sides and not objected do by either, the jury retired and in a short time returned into court and rendered the following verdict: “We, the jury, find the prisoner guilty of murderin' the first degree, as charged in the indictment.” And thereupon ¡the prisoner, by counsel, moved the court in arrest of .judgment for the following reasons, viz:
First. Because the said verdict does not specify the ¡prisoner by name.
Second. For the reason specified in the first and second bills of exceptions.
Third. Because the indictment does not charge that the prisoner knew the substance alleged to have been used in producing the death of William Thornton -was a deadly poison.
The learned counsel for the accused seems to lay little or no stress upon the ground of error presented by this
As to the second reason assigned in the said bill, being-the reasons specified in the first and second bills of exceptions, that objection has already been disposed of.
As to the third reason assigned in said bill, although it may have been the general practice formerly to charge,, in an indictment for murder by poison, that the accused knew the substance alleged to have been used in producing death was a deadly poison, yet it was held, as long ago as Mary Blandy’s case (1 Hargrave’s State Trials, 1), referred to by the attorney-general in this case, that such an averment is unnecessary. She was condemned and executed for murder by poison, and no such averment was contained in the indictment against her. A copy of the indictment may be found in 3 Chitt. Crim. Law, p. 773, marg.: and it may now be considered as well settled that such an averment is unnecessary. See Commonwealth v. Earle, 1 Whart. R., 525, also referred to by the attorney-general. See, also, the form of such an indictment in 1 Arch. Cr. Pr. & Pl., with Waterman’s notes, p. 944, top, 256 marg., which contains no such averment. There is, certainly, no good reason for requiring such an averment, in addition to the other averments contained in the indictment; and cei’tainly the defect arising from its omission, if such a defect at any time existed, was cured by the healing effect of our broad
¥e are therefore of opinion that the Circuit did not err in overruling the motion in arrest of judgment. •
And now, as to the fourth and last bill of exceptions. That bill states that after the jury had rendered their verdict of “guilty of murder in the first degree,” the' prisoner, by counsel, moved the court to set aside the verdict and award a new trial: first, because the said” verdict is contrary to the law and the evidence; and,second, because of an erroneous statement made to the' jury by the court, in this, to wit: After the evidence and argument of counsel were concluded, the jury retired to’ their room, and after a short time returned into the court-' room, and one of the jurors enquired of the court, in-the presence of all the jury, the prisoner and the coun-' sel, if they had a right in this case to find the prisoner guilty of any less crime than “ murder in the first degree?” The court, understanding the juror as referring to the second count having been quashed, and meaning “if the offence is proven as charged in the indictment,” (though he had not said so in terms,) replied, “bio; she is charged with nothing else; the second count has been quashed.”
The juror who made the enquiry then repeated it more explicitly, as if seeking more fully to understand the court, to the effect: “If we believe, from the evidence, that she did administer the poison with intent to kill her husband, and that he died from it, can we find her guilty of anything less than murder in the first degree ? ” The court replied, “If you believe, from the evidence, that she did in person, or through the agency of another acting under her directions, administer poison to her husband, and that she did intend thereby to kill him, and that he
The prisoner’s counsel expressed no dissent or objection to the question, reply or explanations, and took no exception.
The-court overruled the motion to set aside the verdict and award a new trial for the reasons aforesaid.
We will first consider the second reason above as-, signed, “because of an erroneous statement made to the jury by the court,” as aforesaid.
We must take the whole account together, as given in the bill of exceptions, of this alleged erroneous statement made to the jury by the court. If we can suppose it possible that the jury had a right, in this case, in any view of it, to find the prisoner guilty of any less crime than murder in the first degree, certainly they had no such right, understanding the question of the jury to be qualified by the condition “if the offence is proven as charged in the indictment,” as the Circuit court understood it. But it was perfectly competent for the juror to explain his own meaning, and he did immediately explain it, and thus placed it beyond all controversy. So explained, the question of the juror ran thus: “If we believe, from the evidence, that she did administer the poison with intent to kill her husband, and that he died from it, can we find her guilty of anything less than murder in the first degree?” Certainly that question ■could not properly have been answered otherwise than in the negative, and the plainest, and perhaps best an■swer which could have been made to it was, “Ho.” The •court, however, answered the question in detail; and the question is, whether there be anything in that answer -which can make the judgment erroneous? If there be,
Far as these changes have gone, they seem not to have
If, therefore, the Circuit court in this case, in saying to -,the jury that if they believed from the evidence that the ^prisoner did, in person or through the agency of another acting under her directions, administer poison, &c., to her husband, &c., intended to say to them that an accessory ■before the fact to murder might be convicted on an indictment 'against-him as a principal, we think the court
But assuming, as it may be proper to assume, that the words were used in the former sense, or at least in either •sense indifferently, and that the court erred in thus using them, is it an error for which the judgment ought to be reversed? It was not excepted to at the time it is supposed to have been committed, nor until after verdict, and on the motion for a new trial. In fact the objection that the words in question convey, and were intended to convey, the idea that the prisoner was, or may have been, a mere accessory before the fact, never has beeu taken by the prisoner or her counsel, either in the court below or in this court. Ho doubt because no such idea ever entered the mind of either. In truth there was nothing in the evidence to afford any foundation for such an idea, and an instruction assuming that the prisoner was a mere accessory before the fact would have been an abstraction, without any sufficient warrant in the evidence for its support. It is therefore at least doubtful whether the ■objection would have been of any avail if tafeen in due time. But not having beeu taken in due time, the question whether it is now available is a very different one from what it would have been if the objection had been "taken in time. The principles applicable to such a case
We'will now consider the only remaining question in
The facts proved on the trial are certified on the record, and are substantially as follows:
The prisoner, Susan Thornton, was the wife of William Thornton, and resided with her said husband on the land of Mr. Douglas Hancock, near the Red House, in the county of Charlotte. They lived unhappily together in consequence of an improper intimacy and intercourse between the prisoner and a colored man named Ed. Robinson, who lived on the same place, in a house to himself in Mr. Hancock’s yard. Prisoner was the cook of Mr. Hancock, and, when the day’s work was over, usually returned home to the house of her husband, about one-fourth of a mile distant, though she often stopped at Ed. Robinson’s house, where she sometimes remained with him all night; was frequently seen there at various hours in the night, and sometimes about daylight. She washed for Ed. Robinson. Their intimacy having become generally known in the community, she and Ed. Robinson were summoned before the church of which they were members, the first Sunday in July 1872, admonished of the impropriety of their course, and urged to abandon it; and upon refusal, were each turned out of the church, and their names stricken from the list of members. Prisoner told the church, members, when she was thus arraigned, that her husband was too old for her, could not attend to her, and she meant to get rid of him, and if Ed. Robinson wanted her she would have him, and no one could prevent her.
William Thornton was sixty or sixty-five years old, was jealous of his wife’s intimacy with Ed. Robinson, and he and his wife did not live agreeably together on
On Friday the 25th of October prisoner went to the store of Mr. Musgrove, at the Red House, and bought of him two table-spoonsful of arsenic; said she wanted it for her hogs, to prevent them from being stolen. The merchant, Musgrove, told her it was a dangerous and deadly poison, and cautioned her about its use, lest some person might be poisoned by it. During that week William Thornton was working at Mr. J. D. Hancock’s, took his meals from Mr. Hancock’s table, left there as well as ever on Saturday evening, 26th October, about an hour or an hour and a half by sun, to return home, and was taken violently ill during that night, with sick stomach and violent pain in the region of the bowels, with bloody discharges, and with indications of inflammation, and such symptoms as would be produced by poison, but might have been produced by other causes. At that time the colored hired girl was absent, on a yisit to her relations about eight miles oft'; several persons called to see him the next day and for a day or two thereafter; among others Mrs. Hancock, who administered to him a glass of Brandy; his wife was there during his illness; he died the following Thursday, and was buried in a substautial coffin in the usual way on the following Friday.
Prisoner was called upon by Mr. Hancock and others; went to Ed. Robinson’s house, of which she had the key, and took out a brown paper containing a small portion
She afterwards left the neighborhood; an officer, Mr. Ford, was sent with process to the county of Halifax to arrest her, and was accompanied by Mr. Hancock; they found her, and as they entered the house she threw herself quickly on the bed, with her back to them. Mr. Hancock took hold of her, addressed her by name, when she denied that she was Susan Thorntou, or that she knew Mr. Hancock or his father, and other persons in the neighborhood of the Red House, about whom she was asked; said her name was Sarah Rice, and that she was raised in Halifax; she did not appear much frightened ; afterwards acknowledged that she was Susan Thornton; knew Mr. Hancock and his father, her former master who raised her, and many in the neighborhood about whom she was asked; was fully identified, carried back under arrest to Charlotte and committed to jail.
The body of William Thornton was disinterred about four days after his burial; an experienced physician was present and opened the stomach. There were signs of much inflammation ; the liver, lungs and bowels were greatly inflamed. The stomach indicated the presence of some kind of poison, but what kind could not be ascertained by the inspection that was then given. The stomach was afterwards taken out and carried to a chemist, who carefully examined it, subjected its contents to several well known tests, and was fully satisfied of the existence of arsenic therein. The examination of the stomach and analysis of its contents was conducted with great care by Hr. Michie, who had made himself familiar with the mode of detecting the presence of poison, and was fully satisfied of the presence of arsenic in that stomach in sufficient quantity to produce death.
Such being the facts of the case, (which speak plainly
We are clearly of opinion that, according to the well-settled authorities on the subject, we would not be warranted in reversing the judgment on that ground. In Grayson’s case, 6 Gratt. 724, the rules of law in regard to new trials are briefly and clearly laid down. Under the third head, the court say, that “where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, anew trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies, a fortiori, to an appellate court.” Without referring in detail to-the many decisions of this court on the subject, it is sufficient to refer to Read’s case, 22 Gratt. 924, 941, 945, where all those decisions are cited, and most of them briefly stated. In this case two juries concurred in finding the prisoner guilty of murder in the first degree ; and the judge who presided at the trial refused to set aside the last verdict, and rendered judgment thereiqion.
We think there is no error in the judgment, and that it ought to be affirmed.
Judgment appirmed.