Wilson v. CommonwealthWilson v. Commonwealth
- Reporters:
- , ,
- Before:
- Robertson
delivered the opinion op the oourt:
This appeal is prosecuted to reverse a judgment sentencing the appellant to thе penitentiary for two years on an indictment charging him with wounding Francis *106Fryrear, in January, 1864, with an ax, willfully and maliсiously, with intent to kill him.
The accused first pleaded a dismission of a former indictment for the same offense; and a demurrer to that plea having been sustained, he then pleaded not guilty, and was tried аnd convicted on that issue.
The dismission of the first indictment by*the prosecut- ■ ing attorney, with the presumed сonsent of the court, even after a jury was sworn to try the case, was certainly no bar to the last indictment. There having been no trial, the accused, as often adjudged by this court in similar casеs, was not, in the constitutional sense, either acquitted or “put in jeopardy.” The demurrer was, therefore, properly sustained.
The evidence on the trial proved that the appellаnt and others, meeting Fryrear, a stranger, carrying slaves, and apprehending, or pretending to apprehend, that he was, as others had often done during the war, running off slaves that he had no right to, аttempted to stop him, and that he, not heeding them, went on with the slaves, all of which he owned; and, aiming to go to the house of Wm. Davis, about two miles off, he traveled briskly to elude his assailants, who pursued him. The appellant, travel- ’ ing with more speed than his associates, overtook him at Davis’ gate, аnd both entering at the same time, the appellant seized an ax at Davis’ “ woodpile,” and each of them struggling for the ax, the appellant held it, and striking Fryrear more than once with it, wounded his head and cut a thick neckerchief protecting his throat.
Whether the conviction should be sustained depends on the true interpretation of the 2d section of article 6, chapter 28, of Revised Statutes, page 382; and also on the question whether the wounding was malicious.
That section provides, that “ if any person shall willfully and maliciously shoot at and wound another, with *107an intention to kill him, so that he does not die thereby, with a gun or other instrument loaded with a leаden bullet or other hard substance, or shall willfully and maliciously cut, strike, or stab another with a knife, sword, or other deadly weapon, with intention to kill, if the person so cut, stabbed or bruised, die not thereby, or shall willfully and maliciously administer рoison, or attempt to poison, or administer poison to another, if death do not ensuе in consequence thereof, he shall be confined in the penitentiary not less than one nor more than five years.”
We cannot, as urged by the astute counsel of the appellant, restrict this enactment to such deadly weapons as are carried with the person, concealed or otherwise. The letter, context, and reason, all seem to forbid such a restrictive interpretation. If a person be wounded maliciously with a gun or knife, not carried by the woundеr, but picked up for the occasion, surely he would be guilty of a crime denounced by the forеgoing section. Consequently, the constructive rule, “ ejusdem generis,” does not apply to this case; and, leaving “ any other deadly weapon” unrestricted, meaning, like administering рoison, just what the words literally import. The reason of the enactment also harmonizes with the lеtter and context, and includes an ax as one of the deadly weapons intended.
This court, in interpreting this statute, has decided that the wounding contemplated by it must be such as would have made a homicide murder, and that, if the wounding was inflicted under such circumstances as would have made a killing manslaughter only, it would be a mere misdemeanor, punishable by fine and imprisonment in a common jail, acording to the 1st section of article 17th, chapter 28th, Revised Statutes.
*108This is obviously the true construсtion; and, in the same case of Rapp vs. The Commonwealth (14 R. Mon.), the court said, that as sudden heat and passion, produced by mere words, or any such provocation, would not mitigate a homicide to manslaughter, сonsequently, it would not reduce a wounding, with intent to kill, to a misdemeanor only.
The mistaken cause, аssigned for heat and passion in this case, would not have reduced a homicide to manslaughtеr; and there is no pretext for assuming that the wounding was in self-defense. Fryrear, having reached a рlace of rescue, had no motive for assaulting the appellant, and therefore, in thе absence of any testimony to the contrary,, the inevitable presumption is, that the appellant first took up the ax to strike Fryrear, who only tried to take it from him’ to avert the impending dangеr which seems to have resulted from the appellants’ wrongful passion, which the facts’did not justify.
Had hе killed Fryrear, he might have been therefore guilty of murder. And this court has no jurisdiction, on such appеals as this, to adjudge that the evidence did ndt authorize the verdict. Consequently, there being no errоr in law, we cannot, on full consideration, reverse the judgment of conviction, which is therefore affirmed.