12 Gratt. 717 | Va. | 1855
Lead Opinion
Upon the threshold of this case we are met with the objection that the bill of exceptions taken to the opinion of the court overruling the motion for a new trial, contains only a statement of the evidence given on the trial of the cause, and not a certificate of the facts proved : And the question presents itself, whether the rules by which this court is governed when reviewing the action of a Circuit court in granting or refusing a motion for a new trial in a civil cause, apply also in criminal cases; and if they do, we have then to determine the true character of the certificate contained in the bill of exceptions, and the manner in which the same must be considered in the present case.
Looking, then, to the bill of exceptions, it would seem from its form to be somewhat uncertain whether it was intended by the judge to be a certificate of the facts proved, or merely a statement of the evidence on both sides. The names of the witnesses are all given, excepting those who were called to prove the habits and general deportment of the prisoner, and the deceased ; and each witness is stated to have “ proved” what is there narrated. But the exception concludes
It seems to me that it is impossible to read the bill of exceptions without seeing that it is but a mere detail of the evidence (as the judge terms it himself in the concluding part of the bill of exceptions) given in by the witnesses at the trial, excepting only the proofs as to habits and deportment, and not a certificate of the facts of the case. That it is evidence liable to be impeached by the circumstances of the transaction, whether successfully or not, and which it was the peculiar province of the jury to weigh and consider, cannot be doubted. And thus, according to the test prescribed in the opinion of Judge Baldwin in Patterson v. Ford, 2 Gratt. 18, 33, the matter of it, however certified, cannot be treated as facts proved before the
Regarding the bill of exceptions then as not well taken according to the rule of Bennett v. Hardaway, we must reject the evidence on behalf of the prisoner, and examine the case upon the evidence on the part of the commonwealth, according to the modification or explanation of the rule established by subsequent cases. Ewing v. Ewing, 2 Leigh 337 ; Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Pasley v. English, 5 Gratt. 141. And in passing upon the case as presented by the evidence, we must be governed by the same rules, and conform to the same principles, which prevail in civil cases. In the latter, it is true the jury are to weigh the evidence and to decide according to its preponderance, while in criminal cases it has been usual for the courts to advise the jury to require clear and satisfactory proof of the guilt of the prisoner before they bring in a verdict of conviction; and if they entertain a reasonable doubt of his guilt, to give him the benefit of the doubt, and bring in a verdict of acquittal. But this is a matter for the guidance of the jury in the performance of their especial and peculiar function of responding to the questions of fact involved, and not for the government of the court before which the trial is had, in reviewing the action of the jury, and still less for that of this court in reviewing the action of that court. This court can only enquire whether the verdict is war-l-anted by the evidence before it; it certainly cannot enter upon an enquiry whether the jury should not have entertained a reasonable doubt of the guilt of the prisoner, and set aside the verdict or suffer it to
Now, whatever may be the rule in cases where the bill of exceptions is well taken, and states the facts proved, and not the evidence merely ; whether in such case the appellate court would be influenced by the opinion of the jury and of the inferior court, or without regarding it, would proceed to judge for itself originally, and determine whether the proper inferences and conclusions were made and drawn from the facts, according to the opinion of Judge Allen in the case of Slaughter's adm'r v. Tutt, 12 Leigh 147, and as would seem to have been done in the case of Governor for Fisher v. Vanmeter, 9 Leigh 18, there can be no
According to these views then, this case resolves itself into an enquiry whether, looking to the evidence on the part of the commonwealth, it is found to be plainly insufficient to warrant the finding of the jury; for if not so plainly insufficient, we will not be justified in granting a new trial even if we should think that, had we been upon the jury, we might have found a different verdict.
The fact of the homicide by the prisoner is not controverted, and the jury by their verdict have ignored the malice which is necessary to constitute murder, and have convicted the prisoner of manslaughter. But it is urged on his behalf that the killing was clearly in self-defense, and that upon that ground he should have been wholly acquitted.
When a man is assaulted in the course of a sudden brawl or quarrel, he may in some cases protect himself by slaying the person who assaults him, and excuse himself on the ground of self-defense. Before a party thus assaulted, however, can kill his adversary, he must have retreated as far as he safely could to avoid the assault, until his further going back was prevented by some impediment, or as far as the fierceness of the assault permitted. He must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. 4 Black. Comm. 184; 1 Hale P. C. 481 et seq.; 1 Buss, on Cr. 661. And with regard to the necessity that will justify the slaying of another
JSTow, it appears that on the night in question the deceased was at the house of the prisoner, whei’e a marriage was expected to take place; and he and the prisoner were drinking and playing cards together. An altercation took place between them, growing out of the deceased charging the prisoner with cheating. The wife of the prisoner then took hold of the deceased and reminded him of his promise to have no “fuss” there. The deceased assented, immediately bade “ good night,” and went out into the yard. There he remained, however, some five minutes, apparently enraged, cursing and talking loudly. While he was thus engaged, the prisoner took up his gun and walked towards the door, but was induced by his wife’s pei'suasion to set the gun down. After he went out, deceased demanded his gun, which he appears to have left behind him in the house, and it was handed to him through the door by Mrs. Vaiden. Deceased then went away on foot in company with two other persons, who rode away on horseback, and George Vaiden, son of the prisoner, went with them as far as the drawbars, some two hundred yards from the house, for the purpose of letting them through. The deceased had been in conversation with George Vaiden, and after the party went through the gap, he continued the conversation with him as they both stood together on the outside of the fence leaning against one of the panels. The night was cloudy, but the moon was at its full, and the figure of a man could be distinguished at the distance of thirty yards. The conversation be
Nor, it can scarcely be said that the homicide here occurred in the course of a sudden brawl or quarrel. The altercation had taken place at the house, and the deceased had gone away, to all appearances peaceably, and had got out into the main road, and here he was standing conversing quietly with George Vaiden, when the prisoner followed him out: and this must have been between twenty minutes and half an hour after the deceased had left the house; ample time certainly for the irritation of the first altercation to have subsided. Still less can it be said that the prisoner was wholly without fault in bringing the necessity of killing the deceased upon himself, if such necessity did in fact exist. After the deceased had gone away, why should the prisoner have followed him with his gun.? Why go out at all ? If it be said that the prisoner may have been afraid his son might receive some harm at the hands of deceased, the answer is, that there was
Considering the whole conduct of the prisoner on the evening in question in connection with the state of feeling which he avowedly entertained towards the deceased, I think it very difficult to say that he was free from fault upon that occasion, or that his case comes within the rules which renders homicide justifiable or excusable on the ground of necessary self-defense. Hay, if the jury had gone further and found the prisoner guilty of murder, it might be a matter of grave consideration whether the verdict could have been disturbed upon the ground that there was no sufficient evidence of the malice which is necessary to constitute that crime. Certainly, I am not prepared to say that this verdict is a plain deviation from right and justice, and that the evidence is clearly insufficient to warrant it.
In conclusion, I would remark that it can scarcely be doubted the exact weight due to the testimony of George Vaiden must have been matter of serious consideration with the jury. He was the only person
I think no sufficient reason is shown for disturbing
Allen, P. and Moncure and Samuels, Js. concurred in the opinion of Lee, J.
Dissenting Opinion
dissented. He regarded the certificate of the judge of the Circuit court as a certificate of facts; and thought that the facts proved a case of homicide in self-defense.
Judgment affirmed.