Dock v. Commonwealth

• Decision Date: 31 January 1872
• Citation: 62 Va. 909
• Parties: DOCK v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 909

DOCK v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 31, 1872

1. On a trial for murder, it is not competent for the Commonwealth to introduce evidence in chief as to the character of the person on whom the offence was committed.

2. If the prisoner, in the execution of a malicious purpose to do the deceased a serious personal injury or hurt by wounding and beating him, killed him, the offence is murder.

3. Where death ensues on a sudden provocation or sudden quarrel without malice prepense, the killing is manslaughter, and in order to reduce the offence to killing in self-defence, the prisoner must prove two things: First, that before the mortal blow was given, he declined further combat, and retreated as far as he could with safety; and, secondly, he killed the deceased through the necessity of preserving his own life, or to save himself from great bodily harm.

At the August term 1871, of the County court of Rockbridge, George Dock was indicted for the murder of George Ackerly. Being in custody at the time, he was tried at the same term of the court, when the jury found him guilty of murder in the second degree, and fixed the term of his imprisonment in the penitentiary at five years; and the court sentenced him accordingly. He thereupon applied to the Circuit court of Rockbridge for a writ of error to the judgment, which was awarded; but when the case came on to be heard, the Circuit court affirmed the judgment; and the prisoner then brought the case to this court. The case is sufficiently stated in the opinion of the court.

Dorman & Taylor and Letcher &amp Maury, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

MONCURE P.

This is a writ of error to a judgment of the Circuit court of Rockbridge county, affirming a judgment of the County court of said county, convicting the plaintiff in error of murder in the second degree, and sentencing him to five years imprisonment in the penitentiary, the term by the jury in their verdict ascertained.

The errors assigned arise upon four bills of exceptions, which were taken to rulings of the County court in the case. We will consider the questions presented by these bills, in the order in which they were so taken.

I. Upon the trial of the cause, the Commonwealth offered to give in evidence to the jury, testimony in chief, to prove the general peaceable and good character of the deceased, whom the accused was indicted for murdering. To which testimony the prisoner objected, as irrelevant to the issue, and illegal. But the court overruled the objection, and allowed the testimony to be given to the jury, as part of the evidence in chief for the Commonwealth. To which opinion and action of the court the prisoner objected: And this is the subject of the first bill of exceptions.

The law on this subject is thus laid down, in 3 Greenleaf on Evidence, § 27: " In regard to the character of the person on whom the offence was committed, no evidence is in general admissible, the character being no part of the res gestae. " This is the general rule, even where the evidence is offered by the accused; though in that case there are some exceptions to the rule. " Hence," says Greenleaf in the same connection, " where evidence was offered to prove that the person killed was in the habit of drinking to excess, and that drinking made him exceedingly quarrelsome, savage and dangerous; and when intoxicated he frequently threatened the lives of his wife, and others whom the prisoner had more than once been called upon to protect against his fury; all which was matter of common notoriety; it was held rightly rejected, as having no connection with what took place at the time of the homicide." And for this the writer cites in a note, The State v. Field, 14 Maine R. 294; York's case, 7 Law R. 507-509; The State, v. Thawley, 4 Harringt. R. 562; Quesenberry v. The State, 3 Stew. and Port. R. 308; and The State v. Tilly, 3 Ired. R. 424. And he then proceeds thus: " The only exception to this rule is in trials for rape, or for an assault with intent to commit that crime; where the bad character of the prosecutrix for chastity may, under the circumstances of particular cases, afford a just inference as to the probability of her having consented to the act for which the prisoner is indicted." See further as to this exception, 2 Russell on Crimes, 784, and the cases cited. Other exceptions to the general rule, where the evidence is offered by the accused, have been recognized in some cases, as may be seen by referring to Wharton's Am. Crim. Law, § 641, and cases cited in note (a). One of these cases is Franklin v. The State, 29 Alab. R. 14, in which the court said that " the character of the deceased, as a violent, turbulent, blood-thirsty man, when it qualifies, explains, and gives point and meaning to his conduct, and tends to produce in the mind of the slayer a reasonable belief of imminent danger, is admissible evidence for the defendant. And there are cases also in which it may be looked to in determining the amount of provocation, and thus fixing the degree of the homicide; but the evidence in this case," the court proceeded to say, " does not justify its admission on either of these grounds." In cases of this kind, supposing them to be exceptions to the general rule, as to which this court expresses no opinion, if the accused opens the door by introducing evidence of the character of the deceased, of course countervailing testimony in behalf of the Commonwealth would be admissible. As to the general rule, see also Wharton's Am. Crim. Law, § 641, and the cases cited in notes (o) and (q).

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