Covington v. Commonwealth

• Citation: 116 S.E. 462
• Parties: COVINGTON . v. COMMONWEALTH.
• Decision Date: 15 March 1923
• Court: Supreme Court of Virginia

116 S.E. 462

COVINGTON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 15, 1923.

Error to Circuit Court, Pittsylvania County.

W. D. Covington was convicted of murder In the second degree, and he brings error. Reversed, and trial de novo awarded.

By the verdict and judgment under review the accused, W. D.-Covington, was found guilty of murder in the second degree, and sentenced to confinement in the penitentiary for seven years.

The accused was in Henry county, Va„ when he fired the fatal shot, which struck the deceased in Pittsylvania county, Va. (the accused being at the time In the former county, near the line dividing it from the latter county, and the deceased being at the time near such line, but in the latter county), and the deceased, after receiving the mortalwound, was removed out of the state of Virginia into the state of North Carolina, where be died as the result of the wound.

The accused was indicted, tried, and convicted in the circuit court of the county of Pittsylvania.

The sole defense of the accused on the merits was that he fired the fatal shot in self-defense. On this subject there was conflict in the evidence, and the court, on motion of the commonwealth, gave the following instruction:

Instruction No. 3.

"The court instructs the jury that the law of self-defense is the law of necessity, and before the accused can be justified on the ground of self-defense he must prove to the satisfaction of the jury that he had reason to believe, and in fact did believe, that he was in danger of death or serious bodily injury at the hands of the deceased, and that the means resorted to by him were reasonably necessary, under the circumstances as they appeared to him, to save himself from death or serious bodily harm."

On motion of the commonwealth the court gave, among others, the following additional instructions:

Instruction No. 10.

"The court instructs the jury that one accused of the commission of a crime cannot rely upon the plea of self-defense unless he was without fault in bringing upon himself the necessity of committing the act of which he is accused, and the jury are to judge considering all the evidence whether or not the accused was without fault in bringing upon himself such necessity and whether or not such necessity existed."

On motion of the accused the court, among others, also gave the following additional instructions:

Instruction No. C.

"The court instructs the jury that the law presumes every person charged with crime to be innocent until his guilt is established by the commonwealth beyond a reasonable doubt,.and this presumption goes with the accused through the entire case, and applies at every stage thereof; and if, after having heard all the evidence in the case, the jury have a reasonable doubt of the guilt of the accused upon the whole case, or as to any fact essential to prove the charge made against him in the indictment, it is their duty to give the prisoner the benefit of the doubt, and find him not guilty."

Instruction No. D.

"The court instructs the jury that the law presumes the accused to be innocent until he is proved guilty beyond a reasonable doubt, and if there is upon the minds of the jury any reasonable doubt of the guilt of the accused, the law makes it their duty to acquit him, and that mere suspicion or probability of his guilt, however strong, is not sufficient to convict, nor is it sufficient if the greater weight or preponder ance of evidence supports the charge in the indictment. But, to warrant his conviction, his guilt must be proved so clearly, and the evidence thereof must be so strong, as to exclude every reasonable hypothesis of his innocence."

Harris & Harvey, of Danville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

SIMS, J, after making the foregoing statement, delivered the following opinion of the court:

The first question presented by the assignments of error for our decision is this:

1. Did the circuit court of Pittsylvania county have jurisdiction of the case under the provisions of section 4398 of the Code?

The question must be answered in the affirmative.

Section 4398 of the Code is as follows:

"If any person be stricken or poisoned in, and die, by reason thereof, out of this state, the offender shall be guilty, and be prosecuted and punished, as if the death had occurred in the county or corporation in which the stroke or poison was given or administered."

This statute was enacted following the decision in Linton's Case, 2 Va. Cas. (4 Va.) 205, in which it was held that if one be stricken within the state, but die of the wound in another state, the offender may be indicted and tried within the state for wounding with Intent to main, disable, disfigure, or kill, but not for murder. It as ably argued for the accused that the only intention and effect of this statute was to change the rule established' by Linton's Case, so as to constitute the statutory offense of murder, in such case, punishable as such in this state; that neither the purpose nor effect of the statute was to designate the venue for the trial of such cases, and that It was not until section 4770 of the Code, was enacted (Acts 1895-96, p. 605) that the venue for the trial of such cases was provided for; and that under the provisions of that statute the accused cannot be indicted elsewhere than In Henry county, nor tried elsewhere, unless upon removal of the case therefrom under the statute law applicable to the removal of criminal cases.

Section 4770 of the Code is as follows:

"If a mortal wound or other violence or injury be inflicted by a person within this state upon one outside of the same, or upon one in this state who afterwards dies from the effect thereof out of the state, the offender shall be amenable to prosecution and punishment for the offense in the courts of the county or corporation in which he was at the time of the commission thereof as if the same had been committed in such county or corporation." (Italics supplied.)

We are of opinion that section 4398 of the Code did, it is true, change the rule estab-lished as aforesaid by Linton's Case, and constituted the. act of giving a mortal wound in this state which results in death out of the state a statutory offense of murder punishable in this state (see State v. Hall, 114 N. C. 909, 19 S. E. 602. 28 L. R. A. 59, 41 Am. St. Rep. 822, and authorities cited for discussions of the principle involved); but it went further, and, by necessary...