Bowles v. Commonwealth

• Decision Date: 29 September 1904
• Citation: 103 Va. 816,48 S.E. 527
• Parties: BOWLES v. COMMONWEALTH.
• Court: Virginia Supreme Court

48 S.E. 527

103 Va. 816

BOWLES

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 29, 1904.

HOMICIDE — EVIDENCE — ADMISSIBILITY — INSTRUCTIONS—CHANGE OF VENUE—RIGHT TO JURY FROM ANOTHER COUNTY—TRIAL—APPLAUSE BY CROWD — ERROR—JURY—TAKING PAPERS TO JURY ROOM—PRACTICE.

1. Where an impartial jury is in fact obtained in the county where a criminal trial is to take place, a conclusive presumption arises that a motion for change of venue on the ground of prejudice against the prisoner is unfounded.

2. Error cannot be predicated on the refusal to order a jury from another county in a criminal case where an impartial jury was in fact obtained in the county in which the case was tried.

3. In a prosecution for homicide proof of a statement of deceased, made a few minutes after the conflict in which he was fatally shot by defendant, in answer to a question by the first person to reach him as to what deceased had said to defendant, is admissible as part of the res gestae.

4. In a prosecution for homicide, a conversation as to the circumstances of the affray between deceased and a witness, had about six hours after the affray, regarding the circumstances of the conflict, is mere hearsay.

5. Conversation of deceased is not admissible as a dying declaration; it appearing that at the time deceased was not conscious of impending death, but expressed confidence that he would soon recover.

6. In a prosecution for homicide, where defendant testified that when deceased approached him at the time of the shooting deceased used violent and profane language, evidence of the habit of the deceased of not using vulgar and profane language and of his general good character and church membership is inadmissible.

7. In a prosecution for homicide, where an instruction given is intended to present the theory of the prosecution as to the motive which induced the commission of the crime charged, and is so framed as to exclude from consideration of the jury the evidence of the accused tending to show a different state of facts, it is erroneous.

8. Where one in the heat of passion. brought about by circumstances surrounding him at thetime, and without a willful, deliberate, and premeditated intent to take life shoots and kills another, he is not guilty of murder in the first degree.

9. In a prosecution for homicide, where the evidence was conflicting as to whether the deceased was armed and approached the defendant in a hostile manner, the defendant testifying that deceased approached him with a coal pick, or something equally dangerous, it was error to refuse an instruction requested by defendant to the effect that, if defendant did believe that an attack was going to be made on him by deceased, that he thought he was in danger of serious bodily harm at the hands of deceased, and that, defendant shot deceased to save himself from serious bodily harm, then he was not guilty of murder in the first degree.

10. In a prosecution for homicide, applause by a large crowd in the courthouse following remarks of the prosecuting attorney to the jury is not cause for reversal where the court promptly rebuked the misconduct of the spectators in a manner sufficient to prevent its recurrence.

¶ 10. See Criminal Law, vol. 14, Cent. Dig. § 1460.

11. The indictment and written instructions of the court or other writings proper to be given into the hands of the jury should be delivered to them in the presence of the defendant and his counsel, that objection, if any, may be made at the time.

Error to Circuit Court, Alleghany County. Robert Bowles was convicted of murder in the first degree, and brings error. Reversed.

W. R. Allen and Benj. Haden, for plaintiff in error.

William A. Anderson, Atty. Gen., and Wm. E. Allen, for the Commonwealth.

CARDWELL, J. The plaintiff in error, Robert Bowles, was indicted in the circuit court of Alleghany county for the murder of one John Ruff, found guilty by a jury, and sentenced to be hanged, whereupon he obtained this writ of error from one of the judges of this court.

The prisoner and the deceased were both in the service of the Chesapeake & Ohio Railway Company at Clifton Forge. The latter had been in the service of the company for some time as a fireman on the James River Division, while the first-named had only been in the employment of the company for two days as yard brakeman at Clifton Forge. They were entire strangers to each other prior to the altercation which resulted in the death of the deceased, not having seen each other prior to that occasion.

The train on which the deceased was fireman was scheduled to leave Clifton Forge about 2:30 o'clock on the morning of March 21st, and the engine which was to convey this freight train had been brought by some of the crew of that train so near to the lead track, and there stopped, that any other train passing along the lead track would, to the ordinary vision, strike this engine in passing. The prisoner was engaged to aid in the movement of another train, in charge of Yard Conductor Albert White, which was being backed along this lead track, and was passing along the track by the engine on which the deceased then was. The prisoner was sent ahead of the rear part of this train to ascertain whether there was anything on or near the track which would interfere with the movement of Conductor White's train, which was then in motion, going towards the engine on which the deceased was. It appeared to the prisoner, as well as to Conductor White, that the engine, at the time in charge of the deceased, was so close to the lead track that Conductor White's train would strike it in passing, whereupon he called out to the deceased to "move that engine quick; if you don't we are going to hit it." At the same time the prisoner signaled Conductor White and the engineer of his train to "shut off" or stop that train, and Conductor White, apprehending that the engine in charge of the deceased would interfere with his train, "shut off" and stopped it promptly. The deceased, taking offense at the language or order given him by the prisoner, got down out of his engine, and advanced to within a few steps of him, and demanded to know what he meant by it (meaning the language used or the order given), and some words passed between them, whereupon the prisoner laid down a brake stick that he had in his hand, also his lantern, and drawing a pistol from his pocket fired five shots in quick succession at the deceased, two of which took effect, and from the injuries resulting therefrom he died the following night.

The foregoing facts are testified to by the witnesses for the commonwealth, upon the theory advanced by the commonwealth, that the homicide was willful, premeditated, and deliberate, without any provocation or justification; while the prisoner testified that, to save his life and protect himself from serious bodily harm in warding off an unprovoked and murderous attack which the deceased was making upon him, he killed the deceased in self-defense.

The first assignment of error is to the refusal of the circuit court to order, on motion of the prisoner, a change of venue. To support this motion the prisoner offered his own affidavit; another by his counsel, who were present to defend him, Messrs. Allen & Haden; and another by Mr. C. B. Cushing, whom the court had assigned to defend the accused, and who only withdrew as counsel for the prisoner on the day on which the prisoner made his affidavit—that being the day on which Messrs. Allen & Haden, employed by the prisoner, took charge of the defense.

The affidavit of the prisoner (a colored man) sets out that it was impossible for him to have a fair and impartial trial in the county of Alleghany; that the newspapers of that county had published severe and damaging articles against him; that the deceased was a white man, who, with his family, lived at Clifton Forge, in the employment of the Chesa-peake & Ohio Railway Company, and a member of a railway organization to which most, if not all, of the employes of said company in said county belonged; that a large number of these railway employes and their families lived in the county of Alleghany; that the prisoner had been residing in the state of Pennsylvania until a few days prior to the commission of the offense charged against him; that public feeling in the county of Alleghany against him was so strong that the officer from Alleghany county who took him in charge in the state of West Virginia (where he had fled immediately upon the committing of the offense charged) along the line of the Chesapeake & Ohio Railway deemed it unsafe for the prisoner to be carried into, or even through, the county of Alleghany, and had conveyed him across the country in a buggy to the Norfolk & Western Railway, and over that railway to Lynchburg; that the prisoner was kept in jail at Lynchburg because it was deemed unsafe to carry him to, or even through, the county of Alleghany; that on account of the widespread public feeling against the prisoner it was deemed unsafe to bring him to that county, except under the protection of the military forces of the commonwealth; that the judge of the court in which he was to be tried refused to conduct this trial in the presence of military forces, and that then, in order to bring the prisoner to that county for trial, a public meeting of the citizens of the county was held, to give assurance to the officers of the county that they could convey the prisoner from Lynchburg to Covington, the county seat, for trial, without his being attacked on the road; that this feeling against the prisoner continued to be so bitter and widespread that predictions were then being made, and threats uttered, that, if the jury should find the prisoner guilty of an offense less than murder in the first degree, the prisoner would be lynched before he could be carried from the courthouse to the jail.

The affidavit of Messrs. Allen and Haden is practically the same as that of the prisoner, with...