Hash v. Commonwealth

• Decision Date: 02 July 1891
• Citation: 88 Va. 172,13 S.E. 398
• Parties: Hash v. Commonwealth.
• Court: Virginia Supreme Court

13 S.E. 398

88 Va. 172

Hash

v.Commonwealth.

Supreme Court of Appeals of Virginia.

July 2, 1891.

Murder—Indictment—Self-Defense—Evidence —Instructions.

1. On a murder trial it appeared that defendant was engaged in building a fence on his land, which he had removed from the line between him and deceased, contrary' to the prohibition of the latter, although the fence was owned by defendant. Deceased's son testified for the state that deceased came up to the draw-bars, and an altercation occurred, in which the lie was given and returned, and that thereupon defendant drew his pistol, and shot deceased, who was unarmed and standing still. The defense proved that, as soon as the lie was passed, deceased assaulted defendant, inflicting injuries upon him with a knife, and that he retreated, when thus attacked, about nine steps from the draw-bars to a fence, and, while warding blows from the knife, drew his pistol, and Hred the fatal shot. Held error to instruct tl defendant was guilty of murder if deceased was going from the draw-bars towards his home, and defendant, advancing towards him, drew a pistol, which he had concealed about his person, and shot him, he neither making nor attempting to make an assault, since there was no evidence that defendant either pursued the deceased, or had concealed the pistol.

2. A charge which is based upon and recites the evidence for the state is erroneous in failing to recite that of the defense also, and to give an hypothetical alternative instruction based thereon.

3. The removal of the fence, notwithstanding the prohibition of deceased, was not an unlawful act; and it was error to charge that if defendant built it upon the line, so that it rested partly on the land of each, and it had been used as a line fence for a number of years, and deceased had notified defendant not to remove it, and that defendant, arming himself with a pistol, went to the fence to remove it by force, if necessary, and did remove it, he was guilty of an unlawful act, and if, while removing it, a conflict arose on account thereof, in which defendant killed deceased, then defendant cannot avail himself of the plea of necessary self-defense.

4. It is error to charge that "a man cannot in any case jusify the killing of another upon the pretense of self-defense unless he be without fault in bringing the necessity of so doing upon himself, " since the instruction does not distinguish between controversies provoked in order to furnish a pretext for killing and those provoked without such felonious intent.

5. It was error to refuse to charge that the accused must have been without fault in bringing on the combat, and must not have provoked it, or produced the occasion for the killing of deceased; but if he was so at fault, or provoked the combat or produced the occasion in order to have a pretext for the killing, yet, if he fairly-declined the combat by retreating as far as he could, and then killed deceased in self-defense, he is not guilty.

6. Where deceased's son testifies that he knew the hour at which the assault occurred, because he looked at a clock in the house, and his sisters testify that there was no clock, the value of his evidence is for the jury, and an instruction is properly refused declaring that, if the witness swore falsely in this respect, his whole testimony is destroyed, and should be disregarded.

7. A joint indictment for murder is sufficiently definite as to the persons charged with the crime where a comma is inserted between the names of defendants, although the word "and" is omitted.

Error to circuit court, Grayson county; John A. Kelley, Judge.

Hackler & Kobt. Crockett, for plaintiff in error.

The Attorney General, for the Commonwealth.

Richardson, J. On the 3d day of June, 1890, the plaintiff in error, Columbus Hash, and Rowan Hash were jointly indicted in the county court of Grayson county for the murder of Anderson Rutherford in said county; and, on their arraignment in said county court, the prisoner, Columbus Hash, demanded to be tried in the circuit court of said county, whereupon he was remanded for trial in the said court, and the proceedings had in said county court were duly certified to said circuit court. The prisoner, by his counsel, moved that court to quash the indictment, but thecourt overruled the motion. At the trial the attorney for the common wealth asked the court to give to the jury six instructions, the first, second, third, and fourth of which were given without objection, but the court refused the fifth and sixth of the same, and gave in lieu there of two others, of its own motion, which in the record are designated by corresponding numbers; to the giving of which two instructions the prisoner, by his counsel, excepted. And the prisoner, by his counsel, asked the court to give the jury ten instructions, to the seventh and eighth of which the attorney for the cominon wealth objected; which objection the court sustained, and refused to give said seventh and eighth instructions, but gave all the others so asked for by the prisoner; and to the action of the court refusing said seventh and eighth instructions the prisoner, by his counsel, also excepted. All the instructions asked for on both sides, as well as those given by the court in lieu of instructions 5 and 6 asked for by the attorney for the commonwealth, and instructions 7 and S asked for by the prisoner and refused by the court, are set forth in the one bill of exceptions taken by the prisoner to the rulings of the court objected to; and in the same bill of exceptions the court certifies all the evidenee adduced at the trial. The jury returned the following verdict: " We, the jury, find the accused, Columbus Hash, guilty of murder in the second degree, and fix his confinement in the state penitentiary for a term of six years." And thereupon the prisoner, by his counsel, moved the court to set aside the verdict and grant him a new trial, upon the ground that the same was contrary to the law and the evidence, and for other causes; but the court overruled the motion, and refused to set aside the verdict and grant a new trial, and thereupon proceeded to pronounce sentence upon the accused in accordance with the verdict of the jury; and to such ruling and judgment the prisoner, by his counsel, also excepted, and, on application, obtained from one of the judges of this court a writ of error and supersedeas to said judgment. The several objections taken by the plaintiff in error to certain rulings of the trial court are comprehended in the one question, did the court correctly propound the law, as applicable to the evidence in the case, as respects the rulings complained of?

The first assignment of error is to the action of the court overruling the prisoner's motion to quash the indictment. The objection to the indictment is that it is insensible and uncertain as to the number of persons charged with the offense set forth. The record, aside from the indictment itself, shows that the indictment was a joint indictment against Columbus Hash and Rowan Hash for a felony; but on looking to the indictment itself we find that it charges that the offense was committed by "Columbus Hash, Rowan Hash, " omitting the copulative conjunction "and." After the usual formula, the Indictment sets forth "that Columbus Hash, Rowan Hash, on the—— day of May, 1890, in the said county of Grayson and in the jurisdiction of said court, with force and arms in and upon the body of one Anderson Rutherford, in the peace of said commonwealth then and there being, feloniously, willfully, and of their malice aforethought, did make an assault, and the said Columbus Hash, Rowan Hash, a certain pistol of the value of two dollars, then and there charged with gunpowder and leaden bullets, which said pistol they, the said Columbus Hash, Rowan Hash, in their right hands then and there had and held, then and there feloniously, willfully, and of their malice aforethought, did discharge and shoot off, to, against, and upon the said Anderson Rutherford, and that the said Columbus Hash, Rowan Hash, with the leaden bullets aforesaid, out of the pistol by the said Columbus Hash, Rowan Hash, discharged, and shot off as aforesaid, then and there feloniously, willfully, and of their malice aforethought, did strike, prostrate, and wound the said Anderson Rutherford in and upon the head of him, the said Anderson Rutherford, giving to him, the said Anderson Rutherford, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid by the said Columbus Hash, Rowan Hash, in and upon the head of him, the said Anderson Rutherford, one mortal wound, of which mortal wound he, the said Anderson Rutherford, from the ——hour of the evening of the—— day of May, 1890, to the—— hour of the evening of that day, in the year aforesaid, did languish, and languishing, did live, on which said evening of the—— day of May, in the year aforesaid, the said Anderson Rutherford, in the county aforesaid, of the said mortal wound died; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Columbus Hash, Rowan Hash, the said Anderson Rutherford, in manner and form aforesaid, feloniously, willfully, and of their malice aforethought, did kill and murder, against the peace and dignity of the commonwealth of Virginia. " The insistence is that the indictment is insensible and uncertain as to the number of per sons charged, by reason of the abseuce of the conjunction "and" whenever the words "Columbus Hash, Rowan Hash, " occur in the indictment. We are. however, clearly of the opinion that the objection is not well taken. It will be observed that, in every instance in which the expression occurs in the indictment, the words "Columbus Hash" are followed by a comma, and then come the words "Rowan Hash." The use of the comma clearly indicates that the words "Columbus Hash " represent the name of one of the two persons jointly...