Clark v. Commonwealth.1

• Court: Virginia Supreme Court
• Writing for the Court: LEWIS
• Citation: Clark v. Commonwealth.1, 18 S.E. 440, 90 Va. 360 (1893)
• Decision Date: 07 December 1893
• Parties: CLARK. v. COMMONWEALTH.1

18 S.E. 440

90 Va. 360

CLARK.

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Dec. 7, 1893.

Manslaughter—Evidence—Self-Defense—Jury —Summoning from Another County. 1. Where, in a criminal case, a venire facias is ordered to be directed to the sergeant of another county to summon jurors, under the authority of Code 1887, § 4024, it is not necessary that a list be furnished such officer, as is required by sections 4018 and 4019 when jurors are summoned from the county in which the case is tried.

2. An entry by the clerk on the minutes or order book that defendant excepted to a certain ruling will not supply the place of a bill of exceptions.

3. If one willfully inflict on another a dangerous wound, calculated to endanger and de stroy life, and death ensue therefrom within a year and a day, he is not relieved of responsibility for the result by the fact that deceased might have recovered, but for the aggravation of the wound by unskillful treatment.

4. During an election, defendant accused the deceased of fraud, whereupon a fight ensued; and two days thereafter deceased published a card in a paper edited by, him, relating this occurrence, and applying opprobrious epithets to defendant. The latter, when informed of this, stated to several persons his intention to get even with deceased, saying that they could not both live in the same town a day longer; and less than three hours before the shooting he stated that the deceased would have to leave town, "the quicker the better." Defendant, seeing deceased in an office which he had entered, went out, going up the street; and the deceased soon after left the office, and went up the same street, where he met the prisoner, and was shot by him. In a dying declaration, deceased said that he did not have a pistol, and had made no assault on the prisoner before the firing commenced. Pour shots were fired, and four chambers in defendant's revolver were found empty. Defendant was found to bo shot in the wrist, and declared that deceased did it, whereupon the latter denied that he had a pistol, and no weapon could be found on him. Held, that a verdict of manslaughter was justified.

5. The prosecution is not bound to call all the witnesses present at the time of the commission of a homicide, or named on the indictment.

6. A witness present at the commission of a homicide, and named on the indictment, if called by the court of its own volition, is not a witness for or against defendant.

7. Where death ensues on a sudden provocation or quarrel without malice prepense, the killing is manslaughter; and, to reduce the offense to killing in self-defense, the accused must prove that before the mortal blow he retreated as far as he could with safety, and that he killed the deceased through the necessity of preserving his own life, or to save himself great bodily harm.

Error to corporation court of Danville. One Clark was convicted of manslaughter, and brings error. Affirmed.

Berkeley & Harrison and Teatross & Harris, (James T. Harrison, of counsel,) for plaintiff in error.

R. T. Scott, Atty. Gen., and Col. W. R. Azlett, for the Commonwealth.

LEWIS, P. The prisoner was indicted in the corporation court of Danville for the murder of J. R. Moffett, was found guilty of manslaughter, and sentenced, in accordance with the verdict, to five years' confinement in the penitentiary.

1. The first point made in the petition for the writ of error, and insisted upon in the argument here, is that the jury that tried the prisoner was not a lawful jury. One of the grounds of this objection is that, after an unsuccessful attempt had been made to obtain a jury in Danville, the court ordered a venire to be directed to the sergeant of Lynchburgh, commanding him to summon 24 persons from that city, which was done, but no list was furnished, of the names of persons to be summoned. It is contended that such a list ought to have been furnished, and the same point was made before the Jury was sworn. The trial court, however, overruled the objection, and in this there was no error. Authority to direct jurors in a criminal case to be summoned from another county or corporation than that in which the trial is to be is conferred by section 4024 of the Code, and there is no requirement that a list, in such a case, shall be furnished. Sections 4018 and 4019 apply only to the summoning of jurors in felony cases from the county or corporation in which the trial is to be; and the reason, no doubt, of the difference between those sections and section 4024, in respect to furnishing a list, is that in the former case the court or judge is presumed to have the means and information essential to intelligent action in the matter, but not so in the latter case. At all events, there is nothing in the statute to support the prisoner's contention, and we cannot, without assuming legislative authority, interpolate into the statute a requirement which the legislature has not seen fit to insert in it.

Objection is also made to the exclusion from the panel by the court of Hirsh and Vernon, after they had been sworn on their voir dire, and accepted as qualified jurors. As to this matter, the transcript recites that, after Hirsh and Vernon had been thus accepted, the attorney for the commonwealth moved to be allowed to re-examine them on oath as to their fitness to serve as jurors, and to introduce witnesses to prove that the said Vernon had on one or more occasions after the death of the deceased, said the prisoner ought not to be convicted of the murder charged, "which being done, " it is further recited, "they were excluded from the panel, to which action of the court the prisoner, by counsel, excepted." No formal bill of exceptions, however, was taken, and the entry by the clerk on the minutes or order book that the prisoner excepted cannot supply the place of a bill of exceptions. Improvement Co. v. Kara, 80 Va. 589; Fry v. Leslie, 87 Va. 269, 12 S. E. 671, and cases cited. The point therefore, is not presented by the record proper, and hence cannot be considered here. It is not improper, however, to say that, were it regularly presented, we would have no hesitation in holding that it is altogether without merit.

2. The next assignment of error is that the court misdirected the jury upon the law. No reasons, however, are urged in support of this general assignment of error; and it was virtually conceded in the argument that the action of the court in regard to the instructions was without error, as it unquestionably was. The ninth instruction given for the commonwealth, and the only one we deem it necessary to specially mention or consider, is as follows: "If the jury believe from the evidence that the prisoner willfully inflicted upon the deceased a dangerous wound, —one that was calculated to endanger and destroy life, —and that death ensued therefrom within a year and a day, the prisoner is none the less responsible for the result, although it may appear that the deceased might have recovered, but for the aggravation of the wound by unskillful or improper treatment." The prisoner shot the deceased in the abdomen, with a pistol, on the street in Danville, inflicting, according to the evidence for the commonwealth, a mortal wound, from which death resulted in less than 36 hours afterwards. An attempt was made on behalf of the prisoner to show that death resulted from improper surgical treatment, but without success, and it was to meet the evidence on this point that the instruction Just quoted was given. In Com. v. McPike, 3 Cush. 181, it was ruled that where a surgical operation is performed in a proper manner, and under circumstances which render it necessary, in the opinion of competent surgeons, upon one who has received a wound apparently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of death, the party inflicting the wound will nevertheless be responsible for the consequences. Lord Hale states the same principle thus: "If a man give another a stroke, which it may be is not in itself so mortal but that with good care he might be cured, yet if he die of the wound within the year and day, it is homicide or murder, as the case is, and so it hath been always ruled. * * * If a man receives a wound, which is not in itself mortal, but either for want of helpful applications, or neglect thereof, it turns to a gangrene or a fever, and that gangrene or fever be the immediate cause of his death, yet this is murder or manslaughter in him that gave the stroke or wound; for that wound, though it were not the immediate cause of his death, yet if it were the mediate cause thereof, and...