Harrison v. Commonwealth

• Citation: 79 Va. 374
• Parties: HARRISON v. THE COMMONWEALTH.
• Decision Date: 18 September 1884
• Court: Supreme Court of Virginia

79 Va. 374

HARRISON v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

September 18, 1884

Argued at Wytheville but decided at Staunton. Error to judgment of circuit court of Wythe county, refusing a writ of error to judgment of county court of said county, rendered January 21st, 1884, by which judgment the plaintiff in error was, in accordance with the verdict of the jury, at his trial on an indictment for the murder of Craig Brown, sentenced to death by hanging.

The facts of the case as certified are as follows:

The prisoner and the deceased were in the employment of Van Lew's iron furnace, in Wythe county, the prisoner as a teamster and the deceased as a gutterer; but they lived in different houses, which, however, were in sight one from the other. On the night of November 22d, about 8 o'clock at night, the prisoner went to the house where the deceased lived; as he walked in deceased took hold of the prisoner as if to engage in a friendly tussle. Prisoner did not notice him at first, but as the deceased loosened his hold of the prisoner and started to walk into a back room, the prisoner set down a lantern which he held in his hand, and put his hands on the shoulders of the deceased from behind and pushed him into the rear room, where they scuffled a few minutes which resulted in both parties falling on a bed in that room. The prisoner fell on top of deceased, and choked him in that position. Deceased, while they were on the bed, cut the prisoner with an instrument supposed to be a jack-knife. They were then separated. Although twice cut with the knife, the prisoner was not much hurt, and did not stop work, and no surgeon saw the wounds until after the homicide. On the 23d the prisoner tried to get an opportunity to renew the difficulty, and later in the day exhibited a pistol, which he said he had for the deceased. On the morning of the homicide which was the 25th of November, the prisoner came out of his quarters, pistol in hand, and seeing deceased chopping wood close by, went up to him, saying to a companion, " yonder is that fellow now; I will go and settle with him." Then the prisoner came up within eight or ten feet of the deceased, who was still chopping wood, and presented his pistol at him. The deceased called for a man in the house, named McClellan, to come to the door, that the prisoner was there bothering him again, and that he was not bothering the prisoner. The prisoner then said: " What did you cut me with that knife for?" Deceased replied " Shoot me; if you don't, I will kill you." The prisoner replied: " No; I don't want to shoot you but if you will put down your axe and come out here, I will fight you a fair fight." Deceased said angrily, with an oath: " No; I am done with the fuss, but when you shoot make a sure shoot, or I will kill you certain." The prisoner, during this colloquy, lowered his pistol with the muzzle downward, and taking hold of the hammer or cylinder with one hand, seemed to be working or fingering the hammer or barrels. He held the pistol in this position for several minutes, and upon the deceased speaking the words: " When you shoot, make a sure shot, or I will kill you certain," the prisoner stepped back a step or two, raised and presented the pistol at the deceased and fired two shots in quick succession, both of which took effect in the body of the deceased, from the effects of which he quickly died.

The deceased had made no motion or threat of striking with the axe which he held in his hand, and was not near enough to have struck the prisoner with the axe, in the place he was standing, without throwing it, which he showed no sign of doing.

It was further proved, that on the day after the difficulty, when the cutting was done, the deceased had been urged to leave the place until the prisoner got quiet, when he said he would not do it; that he had tried to cut the prisoner's guts out once, and that he was going to lay around until he got hold of him, and then he was going to finish him, then that would be time enough to get out of the way.

And on the next day, the 24th, the day before the homicide, the deceased had said to another person that he had tried to kill the prisoner on the 22d, and intended to do so yet. But there was no evidence that these threats were communicated to the prisoner before the homicide.

It was further proved, that the deceased was a fussy, quarrelsome and dangerous man; that this was his general character in that vicinity and where he was known. And that the prisoner was a peaceable, inoffensive man, industrious and attentive to his business; that the deceased and the prisoner were well matched in size, & c.; and that the prisoner made no attempt to escape after the killing.

The prisoner, being convicted of murder in the first degree, moved the court to set aside the verdict of the jury as being contrary to the law and the evidence, which motion the court overruled and sentenced the prisoner in accordance with the verdict. The prisoner excepted to the said ruling of the court so refusing to set aside the said verdict of the jury and grant him a new trial, and has assigned the same as error here.

W. S. Poague, for plaintiff in error.

Attorney-General F. S. Blair, for the commonwealth.

LACY, J., after stating the case as aforesaid, delivered the opinion of the court:

The statute provides that murder by poison, lying in wait imprisonment, starving, or any wilful, deliberate and premeditated killing, is murder of the first degree; and that murder of the first degree shall be punished with death. Murder has been defined to be the wilful killing of any subject, whatsoever, through malice aforethought. Lord Coke says: " Murder is when a man of sound memory and of the age of discretion,...