Burton v. Commonwealth
| Citation | 108 Va. 892,62 S.E. 376 |
| Parties | BURTON et al. v. COMMONWEALTH. |
| Decision Date | 05 January 1908 |
| Court | Virginia Supreme Court |
Motive may be shown by circumstances, in the absence of an express declaration showing it.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 320-331.]
In a murder prosecution, where the shots were fired in the nighttime at a cab shortly after it had passed defendant's store, evidence that defendants had quarreled with a constable who levied execution on the property of one of them to satisfy a debt of the cab owner's was inadequate by itself to show motive, on the theory that defendants laid in wait for the cab to fire into it, thinking the owner was driving it, because of their grudge against him for levying on their property, where there was no evidence that defendants fired the shots, except that one of them secured a gun earlier in the evening, but which the evidence showed might have been secured for a different purpose.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 481.]
While a motion to set aside a criminal verdict as being contrary to the evidence is heard as upon a demurrer to the evidence, the rule does not permit the jury to guess at the verdict, and. where a fact is susceptible of an interpretation consistent with the innocence of accused they cannot arbitrarily adopt that interpretation which incriminates him.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 731.]
Evidence held insufficient to sustain a verdict of voluntary manslaughter.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 540.]
6. Same—Trial—Question for Jury—Grade of Offense.
Under Code 1904, § 4040, providing that, if a person indicted for a felony be acquitted of a part and convicted of a part of the offense, he shall be sentenced for the part of which he is convicted, and section 4041, providing, if a person indicted for murder be found guilty, the jury shall fix in their verdict whether he is guilty of murder in the first or second degree, a certain discretion is allowed in applying the statutes, which should be construed together, and the indictment may he for murder in the first degree and the evidence prove the offense charged and no other, and yet the jury may find accused guilty of a less offense.
6. Criminal Law—Former Jeopardy—Identity of Offenses—Construction of Statutes.
In determining whether a conviction for murder in the second degree acquitted accused of murder in the first degree, which crime, if any, the evidence tended to show, Code 1904, § 4040, providing if a person indicted for felony be convicted of a part, and acquitted of a part, of the offense, he shall be sentenced for that part of which he was convicted, section 4041, permitting the jury to fix in their verdict whether accused is guilty of murder in the first or second degree, and section 3662, making murder by lying in wait first degree murder, and the Code provisions in pari materia, should be construed together.
7. Same—Instructions —-Applicability to Evidence.
In a murder prosecution, where the evidence did not show that defendants fired the fatal shots, or advised and assisted in so doing, an instruction that, though defendants did not actually fire the shots if they aided in so doing, they were guilty, was properly refused.
Error to Corporation Court of City of Norfolk.
Samuel L. Burton and Sylvanus Conquest were jointly convicted of voluntary manslaughter, and bring error. Judgment reversed, verdict set aside, and cause remanded.
See 60 S. E. 55.
Thos. H. Willcox and Jeffries, Wolcott & Wolcott, for plaintiffs in error.
Wm. A. Anderson, Atty. Gen., for the Commonwealth.
KEITH, P. Burton and Conquest were jointly indicted in the circuit court of Accomac county for the murder of John Topping. They were found guilty and sentenced to confinement in the penitentiary for 10 years. To that judgment a writ of error was awarded by this court. The judgment was reversed, and the case was removed to the corporation court of the city of Norfolk, where they were again tried, and a verdict was rendered against them of voluntary manslaughter, and fixing their punishment at one year in the penitentiary. To the judgment upon this verdict a writ of error was awarded by this court.
The first error assigned is set forth in bills of exceptions Nos. 1 and 2, and is to the ad mission of the evidence of John M. Fosque and Tank Kellam by the trial court.
Fosque, it appears, had secured a judgment against Sylvanus Conquest for a small amount of money. Tank Kellam, in whose hands execution upon the judgment had been placed, levied the same upon a horse owned by Conquest. The horse was found in the possession of Burton. A controversy arose between the constable, Kellam, and Conquest, and Burton, it is claimed, behaved himself in an offensive manner towards the constable in the discharge of his duty. Burton subsequently paid the debt, and later in the day a warrant charging Conquest with resisting the constable was tried and a fine imposed upon him of $50. During the progress of this trial Burton, who was a witness, was directed to leave the witness chair, but did not do so as quickly as in the opinion of the constable he should have done, and the constable thereupon jerked the chair from under him.
This evidence was introduced by the commonwealth, in order to show that the prisoners had a grudge against Fosque and Kellam, and as constituting a motive for their subsequent conduct, which it is claimed resulted in the death of John Topping.
The circumstances attending the shooting of Topping are as follows: A hack containing three or four persons left the hotel in the town of Onancock, in the county of Accomac, about a quarter before 9 o'clock on the evening of the 10th of August, 1907. The hack was driven by one Braden Short. On his left was Dr. M. J. Hunt, and upon the rear seat were a salesman (whose name is not given) and a Mr. Nelson. When the hack had passed Burton's store, which was on the left of the road, looking in the direction in which the hack was going, the witness Hunt says that he saw an object which he at first thought was a hog, but it at once stood up and showed that it was a man, who called out, "Blaze away!" and thereupon a shot was fired which he believes was fired from a gun, and a second shot, which he also thought came from a gun, and then a number of shots, perhaps as many as 20 or 25, which he took to be pistol shots, were fired in very rapid succession, and several of these bullets struck different parts of the hack; that upon the firing of the first shot the man who had given the order to fire cried out. The hack-man, Braden Short, crouched down so as to avoid the fusillade, and the horses moved slowly. This witness was upon the left side of the driver. The curtains upon that side were open, so that he could see quite distinctly all that occurred. He says that there was a dim light in Burton's store, and that the firing took place after they had passed Burton's store about 25 or 30 feet.
It turned out that John Topping received a gunshot wound in the shoulder, from which he died on the 22d day of August.
The hack belonged to John M. Fosque, towhom Conquest owed the debt, and whose testimony with reference to the sale of a horse for the payment of that debt was the subject of the first bill of exceptions. It appears that Fosque sometimes drove that hack. Sometimes it was driven by others. On the night in question it was driven by Braden Short.
The theory of the prosecution is that, having a grudge against Fosque on account of what took place between them and Fosque and the constable, Kellam, the petitioners armed themselves, formed an ambuscade along with other confederates, and fired the shots at the hack, that Topping had been stationed by them as a lookout to warn them of the approach of the hack, and in that way received the wound from which he died.
Burton was a merchant in the town of Onancock. Conquest had been employed in his store. There were in Burton's store upon the night in question and just before the shooting two other colored men in the employment of Burton. A witness for the commonwealth, Frank Johnson, says that a short time before 9 o'clock he was at Burton's store, and that Burton sent him to the house of ...
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...accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates [the accused]." Burton v. Commonwealth, 108 Va. 892, 899, 62 S.E. 376, 379 (1908); accord Commonwealth v. Smith, 259 Va. 780, 782, 529 S.E.2d 78, 79 (2000). Stated differently, the Commonwealth had ......
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