89 Va. 136 | Va. | 1892
delivered the opinion of the court.
The plaintiff in error was indicted in the county court of Carroll on the 21st day of November, 1887, but, being at large, was not apprehended for several years, when he was arrested in the state of Kentucky, and brought back for trial. At his arraignment he elected to be tried in the circuit court for said county of Carroll, and his case was removed to that court, with the result stated. At the trial he excepted to sundry rulings of the court against him, and, upon his conviction there, applied for and obtained a writ of error to this court.
The first error assigned in this court is that the circuit court erred in overruling his motion in arrest of judgment, and to the action of said court in overruling his motion to set aside the verdict and grant him a new trial, upon the ground that the verdict was contrary to the law and the evidence.
By the certificate of facts, it appears that it was proved by the commonwealth that on the 17th day of November, 1887, the dead body of Louisa Haynes was found in Carroll county, Ya., with a bullet wound, made by a large ball, in the top of her h.ead, which ball came out in her jaw, breaking the bones; and that the body was partially consumed by fire. That the charred remains were found in the lap of a tree, which had been blown up by the roots, about three quarters of a mile from the Fancy Gap road, and loé yards from the Green Hill road, in a secluded hollow in the woods, by the side of an old road used by the owner of the lands as a.wood road, and 200 yards from a house occupied by a family, but which spot was not in sight of the said house on account of an intervening hill. That death was caused by the bullet wound. That the body of the deceased was found lying on her face, with left arm under the body and the right hand drawn back above or behind her body. That, on or about the 10th of November, the prisoner, with his brother,
It was further proved by the commonwealth that on Thursday evening about sun-down, or a little before, the prisoner was seen coming along the Green Hill road, about one half mile from where the body was found, coming from the direction of the Fancy Gap road, and from where, the wood road left the Green Hill road, and going towards Green Hill, walking rapidly; and that he passed within ten steps of several persons who were gathering corn along the side of the road, but did not speak, and did not seem to care to speak; and one witness said he rather turned his head away. That none of the parties knew him, except a boy, who had seen him at the school-house the day before. That prisoner was again seen, about sun-down, or a little before, passing along the road leading from Green Hill road towards his mother’s residence, which was not more than" one fourth of a mile from where he was then seen. It was proved by Mrs. Atkins, who lived over a mile from where the body was found, that on Thursday evening about 4 o’clock she heard the report of a gun or pistol in the direction of Mr. Short’s, or of the spot where the body was found. It was further proved that the wagon road on which the body was found led by Ooe.’s fields to Short’s plantation, and that this was the nearest way from the point where the wood road left the Green Hill road to Margaret Myricks’; and that the blind path or road from the chestnut log at the state line to Green Hill road led through a dense woods, across a deep hollow, over a small branch, where an illicit distillery was operated twenty years ago. On the evening of Thursday, November 17, 1887, Mr. Coe, who lived-
The commonwealth also proved that, after the party who had arrested James and Joseph Tilley had been gone from the house a short while, one or two returned and searched for the prisoner, but he was not there; and that the house stood but a short distance from the woods. On Saturday evening, about sun-down, the prisoner came to the house of one Via, in Patrick county, about 'twelve miles from Patrick Courthouse, and a mile from Critz depot, on foot, and stayed all night, and seemed restless and uneasy, and gave his name as Robert Harris. He went to bed early, and left next morning in the direction of the railroad. In the month of September, 1890, the prisoner was arrested and committed to jail in Louisa county, Ky., nominally for failure to pay a fine which had been assessed against him several years before for violation of a city ordinance, but in reality to detain him to answer for the murder of the deceased in Virginia, and to obtain the reward offered for his arrest and conviction. The prisoner was well known in Louisa, and -went by the name of Tilley when there; but when committed to jail he asked the jailor or sergeant to get a lawyer to come to see him, and the sergeant told one Castle, a lawyer at Louisa, that Bob Tilley wanted him to come to the jail to see him. Castle went to the jail to see the prisoner, who gave his name as John Fleming, and said that he lived at Toledo, Ohio, or some other point in Ohio, the witness could not remember distinctly. Said Castle told the prisoner he would send a telegram to his friends, but prisoner said he lived four or five miles from' the city, and a telegram would not reach them. It was understood in the town of Louisa generally that his name was Tilley, though he said to witness
The prisoner- proved by witnesses that he came from
We have thus observed these two persons in the light of the evidence from the time that they met by chance, as is claimed, after several years of separation. They had been early acquaintances in their younger days. The prisoner was on his way to visit his mother, at his old home, when, hearing that the deceased was not there, he 'procured her as a companion on the journey, and spent much of his time in her company, in a manner and under circumstances which cannot be misunderstood. In the late fall season, the 17th of November, between 3 and' 4 o’clock P. M., the prisoner' and the deceased went together towards' the place of her destination.' There was a public road which they could have traveled, but, leaving this, they enter the dense forest, along a by-road or blind path, enshrined in bushes, and disappear from view. The deceased is never again seen alive, but the prisoner, in less than an hour, is seen alone, passing in hurried walk along a highway leading towards his mother’s house, turning his face away, and avoiding recognition, and failing to speak, although he was on a pleasure trip, doing nothing heretofore but loafing from one house to another, going into one house after bed-time and asking for something to eat, and staying until warned to leave on account of the late hour. Why this haste ? Why this sudden desire for concealment ? A short time before he had been courting observation on every hand, as if his business was to see and to be seen. Lately a man of leisure and on pleasure bent, what business urged him on now? He was within a few hundred yards of his mother’s house, and that was close to the woods. And from this he never emerged until he betook himself - to the woods for concealment, in which he wanders for three years
He urges, however, that a shoe track of a man was seen along that road next morning, on the opposite side of the road along which the deceased walked for the last time that evening, which was too large for his track. Whose track was this the evidence does not disclose. Hid it have any connection with the deceased ? Was it made at the same time hers was made? We cannot say. The evidence does not disclose. They appear in the same road, which was a public road, and a short distance from a" small manufacturing town. This track was not made by the evidence to play any important part in the case. If the man who made them was keeping company with the deceased, he did not walk by her side, but on the opposite side of the road.
The accused lays great stress on the prejudice which existed against him and the excitement which prevailed. But he was not tried amid these ; but long afterwards—after years of cooling time had intervened. He has been tried, ably defended, but convicted by a jury of his peers ; and we cannot say that
The second assignment of error is that, although guilty of the murder in question, it was not murder in the first degree, but only murder in the second degree. It is insisted that there is no proof to show murder in the first degree—a willful and deliberate killing; that there is no proof of premeditation nor malice. "When last seen together, a few minutes before'the killing, when they disappeared together in the shadows of that forest from which the deceased was destined never to emerge, they were good friends; and that we cannot presume the circumstances necessary to make up murder in the first degree. It is true, as argued, that all homicide is presumed to be murder in the second degree by the law; and, if the accused would lower the grade of the crime, the burden is upon him; and, if the commonwealth would raise the grade of the crime to murder in the first degree, then the burden is upon the commonwealth to do this. The commonwealth, to do this, points to the circumstances of the crime. Conceding, for the purposes of this.point, that he is guilty of the homicide, what is the degree under the proved facts? A man armed with a large pistol goes into the woods in company with a young woman, towards the shadows of the evening, on her way to a residence a little over a mile off by the woods path. She never reaches her destination. He hurries away about nightfall, avoiding observation. A fire is discovered in these woods. The neighbors gather to prevent its spread and consequent damage to property, and they find a funeral pile had been erected, and the body of this young woman, with a hole in top of the head, partly consumed by fire; and circumstances which show that her purse and her money had been taken from her. Murder and robbery. Was it in sudden
As to the assignment of error that the circuit court overruled the motion to quash the- venire faeias, we perceive no error whatever in the same, which appears regular and proper.
The next assignment of error is that the circuit court erred in rejecting the following plea : “And for plea the defendant says that the grand jury which found the indictment against him was not- constituted, impanelled, and sworn in the manner required by law ; and he prays judgment that the said indictment be abated and quashed.” This plea was offered after motion to quash had been overruled, and before plea to the merits, and was not rejected because it. was not offered in time, but because it was not such a plea as the commonwealth could respond to.- What was the objection to-the constitution of the grand jury ? The plea is silent.. What was wrong about the impanelling of the grand jury, or the swearing of the same not in accordance with the law? .The plea does not inform the prosecution. It is, in substance, a motion to quash. It is not a plea in bar. By that plea the defendant shows, by
The only other ground of error assigned is that the commonwealth was allowed to prove that the deceased, on the day of her death, upon setting forth from a neighbor’s house, said she was going to Myricks’. She being found dead in a defile close by the path which led to Myricks’ house, this was not error; it was part of the res gestee ; it was part of the history of the cause, and it could in no way injure or prejudice the accused, and there was no error in allowing proof of it.
Upon the whole case we see no error, and we are of opinion to affirm the judgment of the circuit court, of Carroll county.
Judgment affirmed.