Bull v. Commonwealth

• Citation: 55 Va. 613
• Parties: BULL v. THE COMMONWEALTH.
• Decision Date: 10 November 1857
• Court: Supreme Court of Virginia

55 Va. 613

BULL v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 10, 1857

1. In an indictment for murder, the omission of the word " " deliberately," will not be fatal on general demurrer.

2. On a trial for murder, the commonwealth, to introduce the dying declarations of the deceased, proved that he was told that his physicians thought that unless he could be relieved of the shortness of breath under which he was then suffering, he would die very soon. He then made the statements which were proposed to be introduced as evidence; and he was asked if these were made as his dying declarations; to which he answered that they were. The deceased was then told that the doctors were of opinion he was certainly dying, and that he would die very soon; and what he had said was repeated to him, and he was asked if he made that statement again, and did he make it as a dying declaration; and he said he did. The statement is admissible evidence as dying declarations.

3. A bill of exceptions taken to the opinion of the court refusing to grant a new trial, sets out the evidence.--The appellate court will not reverse the judgment, unless, by rejecting all the parol evidence for the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court below still appears to be wrong.

4. On a trial for murder, where the evidence repelled the idea of self-defence, the court instructed the jury, that if they believed from the evidence the deceased and the prisoner were engaged in a sudden and mutual combat, in which no weapon dangerous in itself was used, and during the progress of the fight the prisoner struck the deceased an ordinary blow or blows with his fists or feet, without any intention either to kill the deceased or to do him great bodily harm, but to repel his attack, and that the death of the deceased was caused thereby accidentally and apart from the prisoner's intention, then the prisoner is guilty of involuntary manslaughter.--This is not error.

5. In such a case the court further instructs the jury, that though no weapon dangerous in itself is used, but only the fists and feet; yet if the jury are satisfied from the evidence that the manner of inflicting the blows was cruel and unusual, and exceeded in number and violence what was necessary to repel the deceased, and he died of such beating; then the prisoner is guilty of voluntary manslaughter.--This is not error.

6. If a party be dissatisfied with an instruction, he ought to state his objection at the time. If no objection be made to an instruction at the time it is given, and no exception taken or the point saved; but objection be made for the first time after verdict, and in the form of a motion to set it aside the court will consider whether, under all the circumstances the party has been prejudiced by the instruction; and if of opinion that a just verdict has been rendered, according to the law and the evidence, will not set it aside on account of that objection.

7. As a general rule, the testimony of jurors is inadmissible to impeach their verdict; especially on the ground of their own misconduct.

At the April term 1857 of the Circuit court of the city of Richmond Henry Bull and Thomas H. Haley were jointly indicted for the murder of Robert B. Farquhar. The indictment charged that they did then and there feloniously and unlawfully, willfully, and of their malice aforethought, violently and cruelly, with their hands, fists and feet, beat, choke, strike and kick the said Robert B. Farquhar, & c. & c.; but it omitted the word " deliberately."

When the prisoners were brought to the bar, they demurred to the indictment; but their demurrer was overruled. They then pleaded " not guilty; " and elected to be tried separately: Whereupon, Bull was put upon his trial; and was found guilty of voluntary manslaughter; and was sentenced to the penitentiary for three years.

On the trial, the commonwealth offered to prove the dying declarations of the deceased, which were objected to by the prisoner's counsel; but the objection was overruled, and the evidence admitted: To which the prisoner excepted. It appeared in evidence that on the morning of the day on which Farquhar died, his brother informed the mayor of the city that he was dying; and the mayor sent two police officers to hear his statement of the cause of his death. When they arrived at the place, they found there the physician who attended Farquhar, and the Reverend T. V. Moore, who had been conversing with him. At the instance of the policemen, Mr. Moore, having first enquired of the physician whether it might be done with propriety, undertook to inform Farquhar that he was dying; and did make the communication to him; though there is a slight variance between what he states he said, and the statement of one of the policemen. Mr. Moore stated that he said, " Mr Farquhar, it is the opinion of the doctors that you cannot possibly recover, and in view of this fact it is necessary, for legal purposes, that your testimony should be taken in regard to the causes of the injuries under which you are now suffering." The policeman stated, that Mr. Moore told him that in the opinion of his physician, unless he could be relieved of that shortness of breath under which he was then suffering, he would die very soon, and that there were persons there sent by the mayor, to hear his last statement of what he was then suffering, and who inflicted it. They both agree that he then made the statements to which they testify; and that he was asked if the statements he had made were made as his dying declarations; to which he answered that they were. The policeman stated further, that after the statement was made Mr. Moore then informed him that the doctors were of opinion that he was certainly dying; and that he would die very soon. That Mr. Moore then requested the witness to repeat to Farquhar what he had previously said; and then Mr. Moore asked him if he made that statement again, and did he make it as a dying declaration; and he said he did. It was proved that Farquhar was entirely conscious and rational at the time he made the statement; and that he died about an hour afterwards.

After the verdict was rendered, the prisoner moved the court to set it aside, and grant him a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion; and the prisoner excepted. The bill of exceptions contained the evidence given on the trial and not the facts proved. But this court was of opinion that, looking at the evidence of the commonwealth and so much of the evidence on behalf of the prisoner as was not in conflict with the evidence of the commonwealth, the verdict was not contrary to the evidence.

After the court had overruled the motion for a new trial, as stated in the second bill of exceptions, and that bill had been signed and sealed, the prisoner moved the court to set aside the verdict and grant him a new trial, on the ground that the court had misdirected the jury in regard to the law, in an instruction which the court gave at the instance and request of the jury. That instruction was as follows: " If the jury believe from the evidence that the deceased and the prisoner were engaged in a sudden and mutual combat, in which no weapon dangerous in itself was used, and during the progress of the fight the prisoner struck the deceased an ordinary blow or blows with his fists or feet, without any intention either to kill the deceased or to do him any great bodily harm, but to repel his attack; and that the death of the deceased was caused thereby accidentally and apart from the prisoner's intention, then the prisoner is guilty of involuntary manslaughter. If, however, though no weapon dangerous in itself was used, but only the fists and feet, yet if the jury are satisfied from the evidence that the manner of inflicting the blows was cruel and unusual, and exceeded in number and violence what was necessary to repel the deceased, and the deceased died of such beating, then the prisoner is guilty of voluntary manslaughter."

After this instruction was given, the court, at the instance of the prisoner, instructed the jury as follows: " But if the jury shall upon the whole evidence, entertain a reasonable doubt that the deceased came to his death by violence inflicted by the prisoner at the bar, then they must acquit him."

The court overruled the motion; and the prisoner again excepted.

After this last motion was overruled, the prisoner again moved the court to set aside the verdict and grant him a new trial, upon the ground of the misconduct and irregularity of the jury. To sustain this motion, eight of the jurors were examined. The jury had been hung for six days, ten or eleven of them being in favor of a verdict of voluntary manslaughter, and one in favor of a verdict of acquittal, or at most, of involuntary manslaughter. It was proposed to this juror, that if he would concur in a verdict of voluntary manslaughter, the jury would sign a petition to the governor for the pardon of the prisoner. This he at length agreed to do, and did in fact unite in the verdict, on that understanding with the other members of the jury; though at the time, as he swore, he did not believe he was guilty of that offence. The court refused to set aside the verdict on this ground; and the prisoner again excepted. And judgment having been rendered on the verdict, he applied to this court for a writ of error; which was awarded.

Gilmer and August, for the prisoner, insisted:

1st. That the demurrer to the indictment should have been sustained; because the word " deliberately," employed in the statute to describe the offence, was not in the indictment. They ci...