Dean v. Commonwealth

• Decision Date: 31 July 1879
• Citation: 73 Va. 912
• Parties: DEAN v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

73 Va. 912

DEAN v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

July 31, 1879

Absent, Moncure, P., and Anderson, J.

1. Where, in a criminal case, a bill of exception taken to the refusal of the court to set aside the verdict on the ground that it is not warranted by the evidence sets out the evidence and not the facts proved, the appellate court can only consider the evidence introduced by the commonwealth and will not reverse the judgment unless upon that evidence taken to be true, the decision of the court below appears to be erroneous. Read's case, 22 Gratt. 924.

2. Circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty especially of murder in the first degree, the penalty of which is death, unless the circumstances proved are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt.

3. On a trial for murder, the evidence connecting the accused with the killing is wholly circumstantial; but as to time, place, motive, means and conduct, it concurs in pointing out the accused as the perpetrator of the crime--HELD: Accused was properly convicted of murder in the first degree.

At the July term, 1877, of the county court of Scott county, Daniel Dean was indicted for the murder of Henry E. Fugate. There were two trials of the case, in which the jury could not agree. The third trial took place at the May term, 1878, before a jury which had been brought from the county of Washington, and the prisoner was found guilty of murder in the first degree, and the court sentenced him to be hung.

Upon the trial the prisoner took several exceptions to the rulings of the court admitting evidence offered by the commonwealth; but they seem to be of little importance. He also excepted to the opinion of the court overruling his motion for a new trial, on the ground that the verdict was not warranted by the evidence. This exception contains all the evidence introduced before the jury, and gives the testimony of many witnesses examined by the commonwealth and by the prisoner, and except as to the fact that Fugate was shot, is wholly circumstantial.

The prisoner obtained a writ of error to the circuit court of the county, where the judgment was affirmed; and he then obtained a writ of error and supersedeas to this court.

Patrick Hagan, for the prisoner.

The Attorney-General, for the commonwealth.

OPINION

CHRISTIAN, J.

Daniel Dean was indicted in the county court of Scott county for the murder of Henry E. Fugate. He was found guilty of murder in the first degree, and sentenced to be hanged. His case was carried, by writ of error, to the circuit court of said county, and that court affirmed the judgment of the county court. To this judgment of the circuit court a writ of error was awarded by this court.

It appears from the record before us that between the hours of eight and nine o'clock on the morning of Monday, the 25th June, 1877, Henry E. Fugate, while plowing in his field, was shot in the back by an unseen assassin, concealed in the brush on the edge of the field. This field was between two hundred and fifty and three hundred yards from the home of the deceased. His wife was in the garden watering her plants, when she heard a gun fired in the direction of the field, and immediately heard her husband's cries, and looking in the direction from which the sound of the gun and the cries proceeded, saw the horse with which her husband had been plowing running through the field. She hastened at once to the spot, and found her husband lying on the ground, supporting himself on his arm, with his legs stretched out. When she reached him, she enquired what was the matter. His reply was, " I am shot. Some one has shot me from the brush." So far as the record shows, these were the only words spoken by the deceased. He was taken to his home by some of his neighbors; physicians were sent for, who administered to the wounded man as best they could, but the wound proved fatal, and he died on the following Wednesday.

Daniel Dean (the plaintiff in error) was arrested and indicted in the county court of Scott county, for the murder of Fugate. There were two mistrials, the jury failing to agree in each. At the third trial, a jury brought from another county found a verdict of murder in the first degree.

Numerous witnesses were examined. The evidence is all certified. It is altogether circumstantial. There is no direct evidence as to the person who fired the fatal shot.

Now, in the very outset in this case two things must be borne in mind-- first, that circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty, especially of murder in the first degree, the penalty of which is death, unless the circumstances proved are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt. But secondly, it must also be remembered that there are some crimes committed with such secrecy that to require the production of a witness who saw the act committed would be to defeat public justice, to deny all protection to society, to let the greatest offenders go free, and the most heinous crimes go unpunished.

No direct evidence can ever be produced in a case like this, where the assassination is secret, and where no human eye, not even that of the unhappy victim, could see the hidden foe.

Of necessity, and from the very nature of the case, such a fact can only be proved by circumstantial evidence.

Keeping these two considerations constantly in view, let us now examine the case before us with that careful and patient deliberation which the grave and solemn issues of life and death demand at our hands.

And first, it is a subject of remark that during the long trial in the county court no objection is made (as is frequently the case), as to the misconduct of the jury, as to any outside influence, as to a separation of the jury, as to any influence of the force of popular excitement, as to any charge of prejudice and partiality.

No exception is taken by the astute and learned counsel for the prisoner to the conduct of the jury during the trial. The jury is brought from a distant county. They are free from local prejudice, or the influence of local excitement, produced by so shocking a crime. They have no acquaintance either with the accused or with the deceased. There is not a word in the record to impeach, in the slightest degree, the integrity and impartiality of the jury. Whatever else may be uncertain, it is certain that the prisoner had a fair trial before a fair and impartial jury.

The verdict of this jury was approved by the judge who presided at the trial, and who saw and heard the witnesses, and his judgment, refusing to set aside the verdict and grant a new trial, was affirmed by the judge of the circuit court.

The grounds of error assigned, and relied upon here by the learned counsel for the prisoner, are as follows:

1st. Because the verdict is contrary to the evidence.

2d. Because the evidence is plainly insufficient to warrant the finding of the jury.

3d. Because certain evidence (set forth in the previous bills of exception), offered by the commonwealth and admitted by the court, was inadmissible.

Before we proceed to consider, in their proper order, these assignments of error, it is well to advert to certain rules of universal application, laid down by this court, in reference to the manner in which an appellate court must consider a motion for a new trial, upon the grounds set forth in the two first assignments of error.

And first it is to be observed that the facts proved are not certified by the court below; but that the bills of exception contain a certificate of the evidence only.

In such a case, as has been repeatedly declared by this court, the appellate court can only consider the evidence introduced by the commonwealth, and will not reverse the judgment unless, after 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. Reed's case, 22 Gratt. 924, and cases there cited, Gimmie v. Cullen, 20 Gratt. and 439, and cases there cited. In other words, the appellate court in considering the case must discard all the evidence introduced by the prisoner, and admitting the truth of the commonwealth's evidence, the enquiry always is, Is the verdict contrary to that evidenc e. Is that evidence (admitted to be true) insufficient to warrant the verdict of the jury. And if the case be one entirely of circumstantial evidence, the further enquiry is, are the circumstances given in evidence of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt?

There are other rules clearly and distinctly laid down by this court, in respect to new trials, which must govern the case before us, and may be succinctly stated as follows: A new trial will be granted--

1. Where the verdict is against law. This occurs when the issue involves both law and fact, and the verdict is against the law of the case on the facts proved.

2. Where the verdict is contrary to the evidence. This occurs where the issue involves matter of fact only, and the facts proved required a different verdict from that found by the jury.

3. Where the verdict is without evidence to support it. This occurs where there has been no proof whatever of a material fact, or not sufficient evidence of the fact or facts in issue, where some evidence has been given which...