Crockett v. Commonwealth

• Decision Date: 26 April 1948
• Docket Number: Record No. 3313.
• Citation: 187 Va. 687
• Court: Virginia Supreme Court
• Parties: LOUIS CROCKETT v. COMMONWEALTH OF VIRGINIA.

Page 687

187 Va. 687

LOUIS CROCKETT v. COMMONWEALTH OF VIRGINIA.

Record No. 3313.

Supreme Court of Virginia, Richmond.

April 26, 1948.

Present, All the Justices.

1. HOMICIDE — Murder in the First Degree — Instruction on Lapse of Time for Blood to Cool — Case at Bar. — In the instant case, a prosecution for homicide, accused had introduced evidence showing provocation in order to reduce the crime from murder in the first degree. The court instructed the jury as to the effect of lapse of sufficient time for passion to subside and stated that if sufficient time for the blood to cool had elapsed then any prior beatings of accused by deceased could not avail accused in any particular. Accused offered an instruction which was refused which informed the jury of the law when there had been insufficient time for passion to subside.

Held: That accused was entitled to an instruction giving the evidential matter relied on by him to reduce the crime to the grade justified by his evidence if believed, and failure to give such instruction constituted reversible error.

2. HOMICIDE — Murder in the First Degree — Whether Sufficient Time Had Elapsed to Preclude Reliance Upon Otherwise Sufficient Provocation — Question for Jury. — Whether or not, under all the facts and circumstances presented, a sufficient time has or has not elapsed to preclude the accused from relying upon an otherwise sufficient provocation to reduce the homicide to manslaughter, is, within reasonable bounds and under proper instruction from the court, a factual matter for determination by a jury.

3. HOMICIDE — Plea of Self-Defense and Passion Engendered by Assault. — A plea of self-defense and of passion, engendered by an unprovoked assault, are not in conflict with each other.

4. HOMICIDE — Admissibility of Evidence Showing That Deceased Was Cheating at Cards Which Led to Altercation — Case at Bar. — In the instant case, a prosecution for homicide, sometime prior to the killing deceased had administered a severe beating to accused. Accused's contention was that the fact that deceased had been cheating in a game of cards had led to the altercation. The trial court excluded testimony of accused and another witness that deceased had actually been cheating in the card game prior to his attack on accused, but permitted witnesses to testify that the attack was made because of the charge of cheating made by accused against deceased.

Held: That ordinarily collateral matters, such as the fact of the cheating at cards, are irrelevant but in this case the fight, the details of which were admitted in evidence, stemmed from the charge of cheating. In such case, when part of the evidence in this respect was permitted to go to the jury, then the entire incident should have been detailed and by failure so to do the accused was placed in a prejudicial light before the jury.

5. HOMICIDE — Arguments and Conduct of Counsel — Case at Bar. — In the instant case, a prosecution for homicide, during the argument of counsel, the attorney for the accused asked for sympathy for his client because the client was married and had five children under the age of eleven years. In the closing argument by the attorney for the Commonwealth, he replied, "When the attorney for the defense asks sympathy for his client due to the fact that he has a wife and five little children you should remember that the deceased * * * left a wife and three little children who are also entitled to your sympathy". Counsel for accused objected to the argument of the attorney for the Commonwealth and in response to the objection the court told him that he had done the same thing. The court then instructed the jury to disregard the arguments of both counsels on the point and counsel for accused excepted.

Held: That while the court was in error in its ruling and the remarks of the Commonwealth's attorney should have been stricken out in unmistakable language, under the facts of the case the incident was harmless.

6. HOMICIDE — Admissibility of Evidence — Testimony as to Course of Bullet — Case at Bar. — In the instant case, a prosecution for homicide, the court refused to permit a witness to testify as to the course a bullet would take through a human body on the ground that it was not shown that the witness was an expert and an anatomist. The witness had fully explained his qualifications and was merely testifying as to angles and what and how much downward course would be expected depending upon where deceased and accused were standing. The testimony of the coroner had already established the course of the bullet and some of the witness' testimony had been admitted and not stricken.

Held: That the further testimony of the witness as to the slight downward or almost straight course the bullet would take depending upon the position of the parties should have been admitted.

7. JURY — View by Jury — Unauthorized View — Casual or Incidental View. — Generally a new trial will not be granted where the unauthorized view is casual, incidental, and not reasonably calculated to influence a jury in arriving at a verdict, and this rule applies in criminal prosecutions as well as in civil actions.

8. JURY — View by Jury — Unauthorized View — Presumption of Prejudice. — Where the gist of the action is the character or condition of the locus in quo, or where a better view of it will enable the jurors better to determine the credibility of witnesses and other disputed facts, or where the mere fact of an inspection, in view of the nature of the suit, is calculated to influence the jury to the prejudice of the unsuccessful party, it will be presumed that the knowledge so obtained was in fact prejudicial, and in the absence of evidence to the contrary, a new trial will be granted.

9. HOMICIDE — View by Jury — Unauthorized View as Prejudicial Error — Case at Bar. — The instant case, a prosecution for homicide, during the trial the jury was quartered in a hotel which was practically in the center of the scene where the tragedy took place. Members of the jury walked down to the wharf where the homicide occurred and one juror admitted that he identified a certain place from a map which had been introduced in evidence. The trial court was of the opinion that there had been no view by the jury and that from what the jury did or could observe no deductions could have been drawn of probative value to the prejudice of the accused.

Held: Error. In justice to accused and in the interest of fairness it was improper for the jury to have been quartered in the particular hotel.

10. NEW TRIALS — Time of motion — Waiver of Rights. — When a party has full knowledge of circumstances justifying a mistrial delay in making the motion should not be indulged in. In other words, a party litigant should not await the return of the verdict and have a chance of securing a favorable one, and then, if unfavorable, make a motion for a new trial. When such delay is indulged in, it is usually considered a waiver of his rights.

11. HOMICIDE — View by Jury — Unauthorized View — Time of motion for New Trial — Case at bar. — In the instant case, a prosecution for homicide, counsel for accused upon learning that he jury had been quartered for the night in a hotel which was practically in the center of the scene where the tragedy and events leading up to it took place, brought the matter immediately to the attention of the court, although the jury had then retired or was about to retire to consider its verdict. Counsel awaited the return of the verdict before actually making a motion for a new trial but it appeared that when he first learned of the incident he did not have full knowledge of all the circumstances as to what the jury had done or what they had seen or might have seen.

Held: That while the motion for a mistrial should have been promptly made when counsel was advised of the circumstances, since he did not have full knowledge of the incident there was no waiver of his rights in the premises.

Error to a judgment of the Circuit Court of Middlesex county. Hon. J. Douglas Mitchell, judge presiding.

The opinion states the case.

Gordon B. Ambler, for the plaintiff in error.

Harvey B. Apperson, Attorney General, and Henry T. Wickham, for the Commonwealth.

MILLER, J., delivered the opinion of the court.

Louis Crockett shot and killed Clifton Ward in the town of Urbanna. He was indicted, tried and convicted of murder in the first degree and sentenced to the penitentiary for the term of his life.

The accused does not challenge the sufficiency of the evidence to sustain the verdict but relies entirely upon certain alleged errors of law which he claims were made by the court during the progress of his trial. However, in order to understand the points he relies upon, the facts must be related.

For the past ten or twelve years Crockett had been employed by Mr. George Richardson of Richmond as captain of his yacht, the Betty Lee, which Mr. Richardson kept in the harbor at Urbanna. Mr. Richardson was in the habit of going to Urbanna on Friday nights to board the yacht. Crockett had orders from him to have the yacht ready and to remain on board until ten p.m. each Friday night to await the arrival of Mr. Richardson and his party. If Mr. Richardson did not arrive by ten o'clock, Crockett had permission to go home.

On Friday, August 30, 1946, Crockett was expecting Mr. Richardson to arrive as usual. That afternoon he went on board a boat belonging to one Carson Shores and there engaged in a card game. Clifton Ward was also there playing cards, along with several other persons and all of them were partaking of intoxicating drink. Crockett accused Ward of not putting up his part of the money in the game, whereupon Ward knocked Crockett's hat off. They resumed the game and played one or two more hands when Crockett again accused Ward of not putting up his part of the money. Strong derogatory language was used by each of the parties. According to the...