Shiflett v. Commonwealth

• Decision Date: 19 November 1925
• Citation: 130 S.E. 777
• Parties: SHIFLETT. v. COMMONWEALTH.
• Court: Virginia Supreme Court

130 S.E. 777

SHIFLETT.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 19, 1925.

Rehearing Denied Jan. 12, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Willful— Willfully.]

[Ed. Note—For other definitions, see Words and Phrases, First and Second Series, Voluntary Manslaughter.]

Burks and Campbell, JJ., dissenting in part.

Error to Circuit Court, Albemarle County.

Linwood Shiflett was convicted of murder, and he brings error. Affirmed.

Walker & Tlmberlake, of Charlottesville, and Chas. A. Hammer, of Harrisonburg, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

PRENTIS, P. [1] The facts and the questions presented by the record are sufficiently stated and discussed in the dissenting opinion. We are in accord, except as to instruction No. 8, given for the commonwealth, but as to this a majority of the court are of the opinion that the giving of this instruction does not constitute error.

The crucial question, as it seems to us, is not whether the instruction took away from the jury the right to pass on the question of manslaughter, but whether or not it so invaded the province of the jury as to deny to the accused his right to have them determine whether he had supported his plea that he had killed the deceased in self-defense, or that he had killed him willfully, deliberately, and with premeditation. We do not think it should be construed as directing the jury not to find the accused guilty of manslaughter or to deny him any other legal right.

It is impossible to read the evidence and the nine instructions given for the accused without seeing that he chiefly relied upon self-defense. The jury were told with unnecessary repetition that, if the accused apprehended that he was in danger of death or serious bodily harm at the time of the homicide, they must acquit him, and instruction C given for the accused presents concretely the defense relied on by the accused for his acquittal. This instruction No. 8, on the other hand, fairly construed with reference to the evidence, merely presents the contrary view of the prosecution. In terms it cautioned the jury that, in order to convict of murder in the first degree, there must be "a premeditated or previously formed design to kill"; that "it should be a course determinately fixed on before the act done, and not brought about by provocation at the time of the act, or so recently before as not to give time for reflection"; that only if the accused, "as he approached the deceased, and at the distance of about 90 yards from him, or nearer, then formed the design and came to the determination to kill the deceased, and in pursuance of this design ran or trotted the said distance of 90 yards and killed the deceased, without any provocation then received, it was murder in the first degree."

It seems to us apparent that, assuming all of the statements in the instruction to be true (and there was evidence to support each of these statements), this crime was a willful, deliberate and premeditated killing. Its precise form was doubtless suggested by the pre cise nature of the defense and the form of the instructions given for the defense.

Suppose a case in which the evidence for the prosecution showed an intentional killing by poison administered by the accused to the deceased, and the defense interposed to be that the administration was inadvertent; could it fairly be said that it would be error for the court to instruct that, if the jury believed that it was administered with murderous intent, they must find the accused" guilty of murder in the first degree? Surely not, it must be conceded. It is equally apparent, we think, that in this instruction the jury were clearly cautioned that, before they could convict the accused of murder in the first degree, they must find from the evidence every fact necessary to constitute that crime. Whatever fair criticism may be made of its form, we think that it is an accurate statement of the law applicable to the issues raised by the evidence, and that the jury could not possibly have misunderstood that the issues of fact so raised were submitted to them for determination. H cannot be error, we think, in a case in which the evidence will support a verdict of murder in the first degree, to tell the jury that, if they are convinced of its truth, they may so find.

The judgment will therefore be affirmed.

Affirmed.

BURKS, J. (dissenting in part). Linwood Shiflett and Monroe Morris were jointly indicted for the murder of Henry Shiflett. Linwood elected to be tried separately. There were two trials. At the first trial the jury failed to agree and were discharged. At the second trial the jury found him guilty of murder of the first degree, and fixed his punishment at 20 years in the penitentiary. Several exceptions were taken during the trial, and a writ of error was awarded by one of the judges of this court.

The first error assigned is that the verdict and judgment are contrary to the law and the evidence. On this assignment he stands in this court practically as on a demurrer to the evidence. Every presumption is in favor of the verdict, and no inferences in his favor can be drawn from the evidence in his behalf except those that necessarily flow therefrom. On the other hand, every inference in favor of the verdict that the jury might have fairly drawn, as well from the evidence on his behalf as that on behalf of the commonwealth, must be drawn.

Viewing the evidence in this light, the jury might have found the following as facts: That the deceased and the accused had been on friendly terms and came together in the truck of the accused, on the day of the homicide, to the house of Bryant Shiflett; that while there they went to the spring near the house, and each of them took one or more drinks of whisky out of a bottle provided by'the accused; that after doing so the accused hid his bottle in some weeds near the spring; that later the accused looked for the bottle, but could not find it, and asked his wife about it, and she said the deceased had it; that the wife asked the deceased for it, and he denied having it, and offered her a half pint bottle; that the wife insisted that he had the bottle, and deceased became angry because of the accusation; that about that time the accused came up, and the deceased produced the bottle and handed it to the wife, and said, "Anybody that says that I stole this liquor is a damn liar;" that the wife handed the bottle to the accused; that the accused said, "Nobody gave it to you, and you have got it; what do you call it?" that the deceased said he would kill any one who said he stole the whisky; that the accused threw the bottle at the deceased, but missed him, and they made for each other, the deceased having an open knife in his hand and cutting at the accused as they came together; that the accused threw the deceased down on the ground and was beating him about the face and head, until he was pulled off by Bryant Shiflett, father-in-law of the accused; that during the fight the deceased inflicted slight wounds with his knife on the nock and head of the accused; that while the deceased was down the knife was gotten out of his hand by the wife and mother-in-law of the accused; that while the deceased was still down, and before he had recovered from the blows inflicted by the accused, Monroe Morris kicked him about the bead and face; that, as soon as the deceased got up, he went out of the yard where the fight occurred into the public road and went rapidly up the road; that meanwhile the accused tried to get possession of an ax that was near by, but was prevented from doing so: that after the deceased had left the yard, and bad gotten out into the public road, and was going up the same, Monroe Morris said several times, "Let's kill him!" "Let's kill him!" and he and the accused ran up the road a distance estimated by different witnesses from 60 to 100 yards, and when within 5 or 6 steps of the deceased the accused threw a rock at the deceased and hit him on the head, from the effects of which he died the next day. When the deceased was struck with the rock, the accused jumped oh him and beat him violently with his fists, and continued to beat him until he was pulled off by Bryant Shiflett.

There was some conflict in the testimony as to whether the accused threw the bottle at the deceased before or after the deceased started towards him with an open knife, and also as to whether or not the deceased threw a stone at the accused about the time he was overtaken in the road, but these were jury questions, with which we are not concerned. There was no conflict about the fact that the deceased had abandoned the fight and was rapidly leaving the scene at the time the fatal blow was struck, and that after the mortal wound had been given, and friends were preparing to take the deceased to the hospital, the accused strenuously objected to his being taken.

When the deceased fell from the blow with the rock, the accused admits that he jumped on him, and he was so badly beaten and bruised that a familiar friend did not recognize him. While in this condition, and when Bryant Shiflett and his wife were binding up his wounds and endeavoring to staunch the flowing blood, the accused was standing by and gives the following account of what took place:

"I was looking at the place standing there, and Henry said to me: 'Linwood, I am not mad with you; come here and take my hands.' I said: 'What did you cut me for?' He said: 'I did not cut you.' I said: 'Yes; you did cut me.' Mose Via and Warren Davis and Carey Hawley were standing there. There was a piece of stake, or something, sticking in the fence crack, just on the opposite side there. Mose Via and Carey Hawley don't like me very well. I taken hold of that piece of stake. He said again he was not mad with me, as if he was mad with...