Fortune v. Commonwealth

• Decision Date: 15 June 1922
• Citation: 112 S.E. 861
• Court: Virginia Supreme Court
• Parties: FORTUNE . v. COMMONWEALTH.

112 S.E. 861

FORTUNE .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 15, 1922.

[COPYRIGHT MATERIAL OMITTED]

Error to Corporation Court of Lynchburg.

Heywood Fortune was convicted of murder in the second degree, and he brings error. Reversed, and new trial granted.

There were two trials of this case, the first resulting in a hung jury, the second in a verdict finding the accused, Heywood Fortune, guilty of murder in the second degree, and fixing his punishment at eight years in the penitentiary. The Judgment under review was entered accordingly.

Prior to the homicide the deceased, John Bays, had gotten eggs from the accused for setting purposes from time to time; they had also had dealings about chickens, and the relations between them were friendly. The homicide occurred on April 27th, between half past 7 and 8 o'clock p. m. The deceased, accompanied by one Will Hamlett, a brother-in-law, went to the home of the accused for the purpose of getting more eggs from the latter. On their arrival they called to the accused to come out. The latter was at supper at the time, called back that he would come out in a few minutes, and the deceased and his companion passed along the side of the house, and went into the yard back of the residence of the accused and awaited the coming of the latter out of the house. In a short time the accused finished his supper and came out into the back yard, where the deceased and Will Hamlett were standing near the chicken house of the accused. The accused and the deceased greeted each other pleasantly, but upon the want of the deceased to obtain more eggs being made known to the accused he refused to let the deceased have any more eggs, stating that the latter already owed him. The deceased denied owing the accused anything. Thereupon there was an angry and mutually insulting interchange of words between them, followed by the accused drawing a pistol and firing three shots at the deceased, two of which took effect, one penetrating the head, entering in the forehead, just above the left eye, and the other the body of the deceased, entering his left breast. Both were mortal wounds, and the deceased expired in a few minutes. There was an appreciable interval between the first shot and the two shots following.

There were only three eyewitnesses of the occurrence besides the deceased, namely, Will Hamlett, the accused, and his housekeeper, Sallie Call. The last named did not, however, see the actual shooting, but testified as to what occurred immediately preceding the firing of the first shot. Will Hamlett testified as a witness for the commonwealth, Sal-lie Cail for the accused, and the latter took the stand as a witness in his own behalf. There was a sharp conflict between the testimony for the commonwealth and that for the accused on the subject of the provocation for the shooting.

The testimony of Will Hamlett was to the effect that the accused began the angry controversy by calling the deceased a damn liar; that the deceased merely "told him he was another"; that, when the accused added still more insulting epithets, the deceased merely replied to each that "he was another"; that then the shooting started; that the accused did not tell the deceased to get off the premises; that witness saw the first shot, following which the deceased fell; that witness then turned his head, and did not see the two other shots; that the deceased did not throw a rock at the accused, but had both hands in his pockets when the first shot was fired, and made no motion to advance on the accused; and that no rock was thrown by the deceased.

The testimony of the housekeeper and the accused is somewhat confused and conflicting as to precisely what occurred, but their testimony, taken together, is to the effect that the deceased was the aggressor in the use of insulting language; that the accused, in the midst of the angry altercation, ordered the deceased off the premises; that this order was unheeded, and that the deceased thereupon advanced upon the accused in a threatening manner, threw a rock at the accused just before, or was about to throw it as, the first shot was fired, and was getting up, as the accused supposed, or was about to get another rock, with the purpose of throwing it at the accused, when the last two shots were fired.

Will Hamlett, in his testimony on the trial, admitted that a few hours after the shooting he stated, in the presence of the accused and several other persons, that the deceased threw a rock at the accused, but claimed that he made this statement because the accused forced him to do so; that what forced him to do this was that the accused had toldhim that "it wouldn't be good" for him if he did not make this statement, and that the accused still had the pistol in his hand when witness made the statement. And he denied that he had made this statement at any other time. Several witnesses for the accused contradicted the denial of Will Hamlett just mentioned.

The widow of the deceased also a witness for the commonwealth, testified on the trial that Will Hamlett came to her house the night of the shooting and told her that the accused had forced him to say that the deceased "was throwing rocks." The testimony of Will Hamlett on the trial was to the same effect on this point

There was a coroner's inquest the next day after the homicide, at which Will Hamlett and the widow of the deceased testified. The coroner, after having testified as a witness for the commonwealth, was called as a witness for the accused on the subject of what testimony was given by Will Hamlett and the widow before him at the inquest. He testified that these witnesses did testify before him at the inquest; that their depositions were written out by an amanuensis present at the time, and were then and there read over to the witnesses, who authorized him (the coroner) to sign their names to the depositions as their depositions, which he (the coroner) then and there did, they touching the pen. As set forth in this deposition of the widow, it appears that she testified before the coroner that "Will (Hamlett) told us that John (the deceased) throwed a rock at Mr. Fortune first and then Mr. Fortune shot him, " making no mention of Will Hamlett having said that he made this statement because forced to do so by the accused; and, as set forth in the deposition of Will Hamlett before the coroner, he was asked: "Did John (the deceased) make any effort to hit Mr. Fortune?" He answered: "If he did, I didn't see him; I was looking over in the chicken pen." It does not appear in this deposition that he was asked or made any statement about the rock throwing or about his having been forced by the accused to make any statement about it. The accused, by counsel, after laying the foundation therefor as required by statute (section 6216, Code 1919), asked leave of the trial court to introduce the depositions aforesaid in evidence for the purpose of contradicting the testimony aforesaid of Will Hamlett and of the said widow on the subject of the rock throwing. The court, upon the objection of the attorney for the commonwealth to their accuracy, refused to admit the depositions in evidence, but ruled that the accused might prove by the coroner what the witnesses testified to before him if the coroner could testify thereto from his recollection without the aid of reference to the depositions. The coroner, however, testified that he could not remember the testimo ny without reference to the transcript of the testimony contained in the depositions. Whereupon the court ruled that the coroner could refer to the depositions and state whether or not Will Hamlett and the said widow made before him at the inquest any statement with respect to the rock throwing contradictory to their testimony on the trial of the case; that this was all the coroner could testify to. Whereupon no further questions were asked the coroner by counsel for the accused, and the coroner left the witness stand.

Thereupon Will Hamlett was recalled to the witness stand, and, in answer to a question on cross-examination, denied that the coroner "had gone over his testimony at the coroner's inquest, and asked him if it was correct, " and the court held that this was collateral matter upon which the answer of the witness to the question was conclusive upon the accused, so that the truth of the answer could not be inquired into, and the court thereupon excluded all of the testimony of the coroner on the subject of the depositions aforesaid.

The court refused to give the following instruction asked for by the accused:

Defendant's Instructions Refused.

"(4) A man upon his own premises when attacked is under no duty to retreat, but may resist the aggressor, and in so doing may use such force as appears to him as a prudent man reasonably necessary to repel the attack and to subdue the aggressor or compel him to leave the premises.

"(5) A man when assaulted is held accountable under the law only for the exercise of such judgment as is warranted by the circumstances as they reasonably appear to him at the time.

"(6) If one who is free from fault in bringing on the difficulty is attacked by another upon his own premises in such a manner as would raise in a reasonable mind the belief that he is in imminent danger of great bodily harm, and he is so impressed, he is not under any obligation to retreat. but may take the life of his assailant and be justified under the law.

"(7) If the jury believe from the evidence in this case that the defendant was assaulted by the deceased with such violence as to make it appear to the defendant at the time that the deceased manifestly intended and endeavored to take his life or do him some great bodily harm, and that the danger was imminent and impending, then, in that case, the defendant was not bound to retreat, but had the right to stand his ground, repel force with force, and, if need be kill his adversary to save his own life or...