Brown v. Commonwealth
| Decision Date | 16 January 1890 |
| Citation | 86 Va. 466,10 S.E. 745 |
| Court | Virginia Supreme Court |
| Parties | Brown v. Commonwealth. |
Murder—Indictment—Jury—Instructions.
1. The conclusion of an indictment, " against the peace and dignity of the commonwealth of Virginia, " is sufficient, under Const. Va. art. 6, § 26, requiring indictments to conclude, " against the peace and dignity of the commonwealth."
2. In an indictment for murder the designation of deceased by the initials of his name is sufficient.
8. In Virginia, signature of the attorney for the commonwealth is not essential to the validity of an indictment.
4. A recital of the record that the jury "were sworn the truth of and upon the premises to speak, " shows that the jury were duly sworn.
5. The court was requested to charge "that if the jury believe from the evidence that the deceased, or the deceased with others, did any act, or that there were circumstances brought about by them of such a character as to afford the accused a reasonable ground for believing that the deceased, or he in conjunction with others, designed to kill him, or to inflict on him great bodily harm, and there was imminent danger of carrying such design into immediate execution, then, under these circumstances, the killing is excusable, although it may have turned out afterwards that appearances were deceptive, and there was no design on the part of the deceased to kill the accused, or to do him great personal injury, and the jury must acquit the accused." The court amended so as to make it. declare that the killing was excusable only if necessary to preserve defendant's life or his person from great bodily harm. " Held, that the instruction ought to have been given as offered, and not as amended.
6. The court was asked to charge " that if the jury believe from the evidence that the prisoner did not begin the fight, or, having begun it, endeavored to decline it, and killed the deceased to save himself from serious bodily harm, or to avoid his own destruction, they must acquit the prisoner. " The court amended this instruction so as to declare "that the prisoner must not only have declined further combat, but he must have done all, as far as he could, with safety to himself. " Held error, as the instruction offered was more favorable to the prisoner than the law warrants, and, as amended, it was too vague and indefinite.
7. An instruction "that if the jury believe the accused killed the deceased with malice aforethought, but in sudden transport of passion or heat of blood, on provocation by the deceased, they must find the accused guilty of murder in the second degree, "is erroneous, as malice and passion are inconsistent, and an act which proceeds from one cannot also proceed from the other.
8. The jury are not judges of the law as well as of the facts in criminal cases.
J. S. Mason, for plaintiff in error. The Attorney General, for the Commonwealth.
Lewis, P. The prisoner was indicted inthe county court of Stafford county for the murder of J. B. Heflin; and at a subsequent term he was put upon his trial, found guilty of murder in the second degree, and sentenced, in accordance with the verdict, to confinement in the penitentiary for a term of 15 years. To the indictment there was a demurrer, which was based upon two grounds. The first was that the deceased was designated in the indictment by the initials of his name merely; and the second was that the indictment lacked the requisite constitutional conclusion. The indictment concludes, "against the peace and dignity of the com-mon wealth of Virginia;" the two last words being in addition to the required form prescribed by the constitution.1 The demurrer, however, was overruled, and in this there was no error. The designation of the name of the deceased was sufficient, (Whart. Crim. Pl., 8th Ed., § 117;) and the mere statement of the objection to the conclusion of the indictment is a sufficient answer to it.
There was also a motion to quash the indictment because it was not signed by the attorney for the commonwealth; but the motion was overruled, and rightly so. Whatever the practice may be, it is not required at common law that the indictment be signed by the prosecuting officer, and there is no statute requiring it in Virginia. If such signature were essential to the validity of an indictment, the grand jury would be completely under the control of the prosecuting attorney.1
The next objection is that it does not appear from the record that the jury were duly sworn. The record recites that the jury "were sworn the truth of and upon the" premises to speak, " and this is the proper and usual form in which the record in such cases is made up. Rob. Forms, 232.
After the evidence on both sides had been closed, the prisoner moved the court to give the jury a number of instructions, of which the first was as follows: " The court instructs the jury that if they believe from the evidence that Heflin, or Heflin with others, did any act, or that there were circumstances brought about by them of such a character as to afford the accused a reasonable ground for believing that the said Heflin, or he in conjunction with others, designed to kill him, the said Henry Brown, or to inflict on him great bodily harm, and there was imminent danger of carrying such design into immediate execution, then, under these circumstances, the killing is excusable, although it may have turned out afterwards that appearances were deceptive, and there was no design on the part of Heflin to kill the accused, or to do him great personal injury, and the jury must acquit the accused." The court, however, refused to give the instruction as asked for, but amended it so as to make it declare, in effect, that the killing was excusable, only "if necessary to preserve the prisoner's life or his person from great bodily harm, " and, as amended, the instruction was given. The instruction ought to have been given as offered. In Stoneman's Case, 25 Grat. 887, it was decided that although the bare fear that a man intends to commit a murder or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention, will not warrant killing the party by way of prevention, yet, if there be an overt act indicative of immediate danger at the time, —that is to say, an act indicating a present intention to kill the party, or to do him some great bodily injury, —the killing will be justifiable, although it should afterwards turn out that appearances were deceptive, and that there was, in fact, no design to commit a felony, or to do great personal injury. The law, said the court, does not require that there should be actual danger to justify the killing. If the act done, or the circumstances existing, be of such a character as to afford reasonable ground for believing that there is a design to commit a felony or do some serious bodily harm, and that there is imminent danger of such design being carried into immediate execution, that is sufficient. The amended instruction is not in accordance with this...
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