Evans v. Commonwealth

• Decision Date: 21 September 1933
• Citation: 161 Va. 992
• Parties: MCKINLEY EVANS v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 992

161 Va. 992

MCKINLEY EVANS v.COMMONWEALTH.

Supreme Court of Virginia, Staunton.

September 21, 1933.

Present, Campbell, C.J., and Holt, Epes, Gregory and Browning, JJ.

1.QUESTIONS OF LAW AND FACT — Credibility of Testimony.— It is the duty of the jury to sift out the facts, and it has the right to believe any credible evidence.

2.CHANGE OF VENUE — Homicide — Conditions Obtaining at Trial and Not Those Existing at Time of Homicide Should Be Considered.— A change of venue should be ordered when necessary to secure a fair trial.Code of 1930, section 4914.Since a fair trial is all that can be demanded, we look to conditions which obtain when the trial was had and not to those which existed at the time of the homicide.

3.CHANGE OF VENUE — Discretion of Trial Court.— All of the Virginia cases with one voice hold that this is a matter within the sound judicial discretion of the trial judge.

4.CHANGE OF VENUE — Homicide — Refusal to Order Change of Venue Held Not to Be Erroneous — Case at Bar.— In the instant case, a prosecution for murder, the refusal of the trial court to change the venue was assigned as error.While it might be assumed that a dispassionate trial could not have been had immediately following the homicide, the situation two months thereafter had changed.Affidavits of prominent citizens, men of wide acquaintanceship in the county and who had talked over the case with their neighbors, were to the effect that they had heard nothing to indicate that accused could not be given a fair and impartial trial.

Held: That the action of the court in refusing a change of venue did not constitute error.

5.JURY — Second Venire Facias — Names Selected from List Provided for by Section 5988 of the Code of 1930 — Case at Bar.— In the instant case the first venire facias was quashed and a second ordered.The names for the second venire facias were selected from the list provided for by Code of 1930, section 5988, which was the original list made up by the jury commissioners.When the selection was made there were present the clerk, a deputy clerk and a deputy sheriff.The judge asked them where some of these jurors lived.

Held: That there was no objection to this procedure.It is a common practice.

6.JURY — Venire Facias — Competent Jurors.— The law does not require that every man whose name appears on the venire facias shall be competent.If this were true, then it would be necessary to examine prospective jurors before the venire facias actually issued.This is never done.So many persons as are deemed necessary are summoned to obtain a panel of twenty, free from exception.All that the statute requires is that men on the panel be free from exception.That requirement does not extend to the venire facias itself.

7.JURY — Competency of Juror — Juror Who Has Signed an Affidavit in Favor of the Commonwealth on Motion for a Change of Venue — Objection to Juror Not Made until after Conviction — Case at Bar.— A man who had signed an affidavit to the effect that there was no bias or prejudice against the accused in the county such as would prevent the accused from being given an impartial trial there, and that public sentiment had not been inflamed by published accounts of the homicide, was not a competent juror.But where the disabilities of the juror were known to counsel and to the court and no exception was taken to his selection, the objection to the juror comes too late after conviction.

8.HOMICIDE — Evidence — Conditional Threats — Case at Bar.— In a prosecution for murder it must appear that conditions have been fulfilled before conditional threats of accused against decedent are competent evidence.That was substantially the situation in the instant case, where it was in evidence that accused stated that deceased had a warrant for accused and that accused would put deceased out of business if deceased tried to arrest him.

9.HOMICIDE — Evidence — Former Grudges — Antecedent Menaces.— On the trial of an indictment for murder, former grudges and antecedent menaces are admitted to be given in evidence as proof of the prisoner's malice against the deceased.

10.DYING DECLARATIONS — Several Statements — Contradictory Statements — Oral Evidence.— A man who believes that he is in immediate presence of death may make one or more dying statements.If made at different times all of them may be admitted in evidence even though they contradict each other.Contradictions are for the jury.But when a statement is reduced to writing and signed by the declarant or is read over to him and assented to by him it is the best evidence as to what was then said.Oral testimony to vary it is incompetent.

11.DYING DECLARATIONS — Oral Evidence in Accord with Written Statement — Harmless Error.— If the oral evidence of a dying declaration is in substantial accord with a written statement, its admission, if error at all, is harmless error.

12.HOMICIDE — Instructions — Possession of Deadly Weapon by Accused — Possession by Officer — Case at Bar.— In the instant case, the prosecution of a city sergeant for the murder of a deputy sheriff, who had a warrant for his arrest, the court instructed the jury that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any, or upon very slight, provocation, is, prima facie, wilful, deliberate and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.Accused was town sergeant and had a right to be armed; therefore, there were no presumptions against him because of that fact.The instruction, however, could not be construed to mean that malice might be inferred from the possession of a deadly weapon.It may be inferred from the manner of its use.

13.HOMICIDE — Use of Deadly Weapon — Test of Criminal Intent.— The test of criminal intent in the use of a deadly weapon is to be found not in the manner in which, or the purpose for which, the previous possession of the weapon was acquired, but in its deliberate use for a deadly purpose.

14.HOMICIDE — Homicide by Officer.— An officer has no more right to kill a man without provocation or upon very slight provocation than has any other citizen.

15.HOMICIDE — Homicide of an Officer — Instruction — Duty of Citizen to Yield Obedience to the Law — Case at Bar.— In the instant case, a prosecution for murder, the court told the jury that it is the duty of every good and true citizen to yield prompt and willing obedience to the law, and further that if they believed beyond a reasonable doubt that the accused became enraged because the deceased undertook to serve a warrant upon him and attacked and killed him for no other reason, he is guilty of murder in the first degree.

Held: That it is the duty of good citizens to yield obedience to the law and this statement, though somewhat argumentative, was plainly not prejudicial error.

16.DYING DECLARATIONS — Weight for Jury — Instructions — Case at Bar.— In the instant case, a prosecution for murder, the trial court instructed the jury that dying declarations "are entitled to as great weight, if precisely identified, as if the deceased had been living and sworn in court and had testified the same as said dying declaration."

Held: Reversible error.

17.DYING DECLARATIONS — Weight for Jury — Instructions — Case at Bar.— The weight of a dying declaration is for the jury and in weighing it the circumstances in which the statements were made should be considered.Since its weight was for the jury, the court should not have given any specific instruction on that phase of the subject.A dying declaration is taken as if made under oath and that is all.In the instant case a dying declaration was extremely important and it was reversible error for the trial court to undertake to say to the jury how it should be considered or weighed by them, or indeed to call particular attention to it at all.

18.HOMICIDE — Instructions — Refusal of Instruction Where It Deals with Matters Adequately Covered by Other Instructions or Does Not Affect the Merits of the Case.— In a prosecution for murder, the refusal of an instruction offered on behalf of the accused did not constitute error, where the matters dealt with in the instruction refused are adequately covered by other instructions, or the instruction did not affect the merits of the case.

19.HOMICIDE — Instructions — Testimony of the Accused — Case at Bar.— In the instant casethe court refused an instruction which undertook to tell the jury how they should consider the testimony of the accused.The weight to be given to this evidence was for the jury and was a proper matter for argument, but the court was right in refusing to instruct them upon it as a matter of law.Instructions should not discredit it or stamp it with approval.

20.HOMICIDE — Instructions — Statement by Witness to Accused and Answer of Accused — Case at Bar.— In the instant case, a prosecution for murder, a witness testified that shortly after the shooting he said to accused: "You fired the first shot," and accused replied: "Keep your damn mouth shut."The court was asked to instruct the jury that if these statements were made they could only be considered as affecting the credibility of accused.

Held: No error.The testimony was properly submitted to the jury for what it was worth.

21.APPEAL AND ERROR — Rule 22 of the Supreme Court of Appeals — Reasons for Exceptions.— Under Rule 22 of the Supreme Court of Appeals, it is not necessary that reason be assigned for every exception taken, if the necessary reason would be immediately apparent, but where matters involved are dealt with, reasons should be assigned in fairness to the trial court.Generally, reasons in short form should be assigned.

Error to a judgment of the Circuit Court of Russell county.

The opinion states the case.

A. T. Griffith and McCoy, Rose & Rush and L. E. Fuller, for the plaintiff in...