Brown v. Commonwealth.1

• Decision Date: 29 March 1894
• Citation: 19 S.E. 447,90 Va. 671
• Parties: BROWN v. COMMONWEALTH.1
• Court: Virginia Supreme Court

19 S.E. 447

90 Va. 671

BROWN

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

March 29, 1894.

Homicide—Conduct of Trial—Misconduct of Jury—Instructions.

1. It is not error for the court to call as a witness one who is jointly indicted with the defendant, and who was present at the transaction.

2. On the request of the jury, in a murder case, the officer in charge of them, during a recess, allowed them to walk to the scene of the murder; he walking behind, and in no way directing or suggesting their movements. When they arrived at the place, some of the jury looked into the alley where the murder was committed; but, at the officer's request they came out, having remained there only a minute or two. Held, that this was not misconduct on the part of the jury.

3. The fact that the court ordered witnesses to be examined out of the hearing of each other is not ground for refusing to allow a witness to testify who had not been summoned, and who had heard a portion of the evidence.

4. On a trial for murder, a witness was allowed to testify that goods found in the prisoner's house when arrested for the homicide were stolen from him. Held, that while such evidence was not strictly admissible, the prisoner was not prejudiced thereby, as he had previously confessed that such were the facts.

5. On a trial for homicide, the prisoner is not entitled to stenographic notes of evidence before the committing magistrate, which were taken by the commonwealth's attorney, at his own expense, by a private stenographer.

6. It was not improper for the court to charge that it was not necessary that the design to kill should have existed "for any length of time, " adding "that it will be sufficient if the jury believe from the evidence that, at the moment of the firing the shot, the accused intended to kill, or do great bodily harm."

7. Malice may be presumed from the use of deadly weapons in the previous possession of the slayer.

8. It was proper to instruct the jury that though they believed that the shot which killed deceased was fired by another than the prisoner, if such other was engaged jointly with the prisoner in the commission of a felonious act, and the snot was fired in an attempt to accomplish their common escape, and the prisoner was present aiding and abetting the person who fired the shot, the prisoner was guilty.

9. When the record embodies neither the facts nor the evidence, the refusal of the trial court to grant a new trial will not be reviewed.

Error to corporation court of Norfolk. Madison Brown was sentenced to be hanged for murder, and brings error. Affirmed.

W. L. Williams, for plaintiff in error.

A.tty. Gen. R. Taylor Scott, for the Commonwealth.

LEWIS, P. The prisoner was Jointly indicted with one Bouch for the murder of John Dollard. Upon their arraignment, the defendants elected to be tried separately; and the first question arising upon the trial of the plaintiff in error, Brown, relates to the action of the court in calling as a witness the said Bouch. It appears from the bill of exceptions that the attorney for the commonwealth declined to call Bouch as a witness for the prosecution, and that he was called by the court at the suggestion of his own attorney. It also appears that, upon being called, he was first examined by the court, then by the attorney for the commonwealth, and afterwards by the counsel for the prisoner. Whether the examination by the prisoner's counsel was a waiver of the previous objection to Bouch's being called as a witness, it is unnecessary to decide, because the action of the court was the valid exercise of a discretion to call any witness who was present at the transaction, according to the rule recognized in Hill's Case, 88 Va. 639, 14 S. E. 330.

The next objection is founded upon the alleged misconduct of the jury, in visiting, during the trial, without the consent, and in the absence, of the prisoner, the scene of the homicide. Upon this point the facts appear, from the affidavit of the officer in charge of the jury, who testified that during a recess of the court the jury requested him to be allowed to take a walk up to James and Queen streets; that he at first demurred, as the weather was threatening, but that they insisted on going, and that they all walked up to the corner of Queen and James streets (he with them); that he was behind, and in no way directing or suggesting their movements; that, when they got to the corner of the said streets, some of the jurors looked into the alley where the alleged murder was committed, and looked at the premises; that, as soon as he came up, he asked them to come out of the lane; and that they did so. He said, further, that they looked at the premises not more than a minute or two, and that no one spoke to them during their walk, or at the premises. In the argument at the bar, a number of decisions from other states were cited to show that it is error for a view to be had, in a felony case, in the absence of the accused. The decisions on the subject seem to be founded upon statutes, and are by no means harmonious. On the one side, it is held that the accused must be personally present, because no evidence can be taken in his absence; while, on the other, it is held that the purpose of the view is not to serve as evidence for the jury, but to enable the jury better to understand the evidence offered in court 12 Am. & Eng. Enc. Law, 369. and cases cited. We need not, however go into this question, in the present case, because, upon the facts stated, the objection cannot be sustained. The case is very similar to the well-considered case of State v. Brown, 64 Mo. 367, in which case the facts were these: The jury, during the trial, went out, and looked at the ground where the deceased was killed; but the witness could not state that they were looking at the ground with a view of understanding how the killing was done, nor was it shown...