Hill v. Commonwealth

Citation88 Va. 633,14 S.E. 330
PartiesHill. v. Commonwealth.
Decision Date21 January 1892
CourtSupreme Court of Virginia

Criminal Law — Conduct of Trial — Calling Witnesses—Instructions.

1. In a prosecution for felonious shooting the refusal to require the prosecution to call a certain witness who was present when the shooting occurred was not error, it being for the representative of the commonwealth to say what witnesses shall be called in criminal prosecutions.

2. A request to charge, which was irrelevant to the issue, was properly refused, though embodying correct principles of law.

Error to circuit court, Fauquier county.

One Hill was convicted of felonious shooting, and appeals. Affirmed.

It appears that on the day of the shooting the prisoner became involved in an altercation on the streets of Warrenton, which resulted in blows, seeing which, the mayor of the town, John R. Spilman, commanded the peace. The prisoner not promptly obeying the order, Spilman attempted to arrest him, whereupon he fled, pursued by Spilman and others. After running some distance, he turned, and fired a pistol in the direction of his pursuers, the bail taking effect in the arm of Fannie Owens, a colored girl, who was standing on a porch near by. At the trial the prosecution closed its case without calling Fannie Owens, whereupon the prisoner moved that the attorney for the commonwealth be compelled to call her as a witness, she being present in the court-room at the time, which motion was overruled, and the prisoner excepted. There was a verdict of guilty, and senteuce accordingly. Other facts are stated in the opinion.

A. D. Payne and R. R. Campbell, for plaintiff in error.

Maj. R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lewis, P. Objection is made to the refusal of the trial judge to compel the girl, Fannie Owens, to be called as a witness for the commonwealth, on the broad ground that the prosecution is bound to call every witness present at the transaction which is the subject of the indictment. But we do not concur In this view.

Such has not been the practice in Virginia, nor can the rule contended for be maintained upon principle. The name of the girl was not on the indictment as a witness, nor is this a case of homicide. The contention, therefore, goes even further than the rule established in England, where the rulings of the courts in matters of this sort have been very liberal to defendants, owing largely, no doubt, to the fact that not until recently have persons indicted in that country had the unrestricted right to be represented by counsel, —a reason that has never existed with us. Usually, both in England and in this country, the prosecutor calls all the witnesses on the back or at the foot of the indictment, but there is no positive rule, in a case like the present, requiring it. Roscoe accurately lays it down as a rule deduci-ble from the English decisions, in cases other than cases of homicide, that, although a prosecutor was never in strictness bound to call every witness whose name is on the back of the indictment, yet it is usual to do so, in order to afford the prisoner an opportunity to cross-examine them; and, if the prosecutor will not call them, the judge, in his discretion, may. But the prosecutor, he says, ought to have all such witnesses in court, so that they may be called for the defense, if they are wanted for that purpose. If, however, he adds, they are called for the defense, the person calling them makes them his own witnesses. 1 Rose. Crim. Ev. 139, citing Hex v Sim-monds, 1 Car. & P. 84, Rex v. Whitbread, Id. 84, note; Rex v. Bodle, 6 Car. & P. 186: Reg. v. Woodhead, 2 Car. &K. 520; Reg. v. Cassidy, 1 Fost. & F. 79. In the subsequent case of Reg. v. Edwards, 3 Cox, Crim. Cas. 82, the rule, if not modified, was, in one particular at least, stated more guardedly. In that case, which was an indictment for forgery, Mr. Justice Erle, before whom the case was tried, denied an application on the part of the prisoner's counsel to have all the witnesses on the back of the bill called for the crown, that he might have an opportunity of cross-examining them, saying: "There are, no doubt, cases in which a judge might think it a matter of justice so to interfere; but, generally speaking, we ought to be careful not to overrule the discretion of counsel, who are, of course, more fully aware of the facts of the case than we can be. " In cases of homicide, the English rule, as the author above mentioned says, is that every witness who was present at the transaction ought to he called for the crown, whether their names are on the back of the indictment or not. The leading case on this point is Reg. v. Holden, 8 Car. & P. 606. In that case it appeared that the fatal blow was struck in the presence of the wife of the deceased and his daughter. The name of the latter was not on the back of the indictment, and she was taken to the assizes by the other side. The widow was called as a witness for the crown, but the prosecutor announced his intention not to call the daughter, whereupon Patteson, J., observed: "She ought to be called. She was present at the transaction. Every witness who was present at a transaction of this sort ought to be called; and, even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter." The daughter was then called and examined. A similar rule has been recognized in Michigan. There it is held that, in cases of homicide, and in other cases where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, should always be called by the prosecution, unless, possibly, where too numerous. Hurd v. People, 25 Mich. 406; Wellar v. People, 30 Mich. 16. But it is believed that in no other state in the Union lias the rule been carried to this extent. Wharton, indeed, states the rule in pretty much the same terms. The prosecution, he says, is usually bound to call all the attainable witnesses to the transaction under examination. Nor does he expressly confine the rule to cases of homicide, and he qualifies it only by saying that this is not necessary when it would produce an oppressive accumulation of proof. Whart. Crim. Ev. (9th Ed.) § 448. He cites, besides the English and Michigan cases, State v. Smallwood, 75 N. C. 104; State v. Magoon, 50 Vt. 338; and Winsett v. State, 56 Ind. 26. The last-mentioned case is not reported in 56 Indiana, nor have we been able to find it. TheVermontcasedoesnot touch the question,...

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22 cases
  • State v. Loveless
    • United States
    • Supreme Court of West Virginia
    • May 24, 1955
    ...jurisdictions and we think that the principle stated in the Cain case is salutary, but should be used cautiously. See Hill v. Commonwealth, 88 Va. 633, 14 S.E. 330; Pendleton v. Commonwealth, 131 Va. 676, 109 S.E. 201. It is to be noted that in the Pendleton cases, supra, a statute was cons......
  • DiLlon v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • January 26, 1909
    ...St. Rep. 318;Reyons v. State, 33 Tex. Cr. R. 143, 25 S. W. 786, 47 Am. St. Rep. 25;State v. Baxter, 82 N. C. 602;Hill v. Com., 88 Va. 633, 14 S. E. 330, 29 Am. St. Rep. 744;State v. Morgan, 35 W. Va. 260, 13 S. E. 385;State v. Payne, 10 Wash. 545, 39 Pac. 157;State v. Hudson, 110 Iowa, 663,......
  • Bullock v. Clark
    • United States
    • U.S. District Court — Eastern District of Virginia
    • May 20, 2020
    ...Moreover, the Commonwealth may choose which witnesses it will present and need not call a witness named in the indictment. Hill v. Commonwealth, 88 Va. 633, 634 (1892). Counsel therefore could reasonably have determined any objection to A.S.'s absence at trial would have been meritless. See......
  • Travis v. Southern Pac. Co.
    • United States
    • California Court of Appeals
    • December 3, 1962
    .......         In Clark v. Commonwealth (1893), 90 Va. 360, 16 S.E. 440, in a murder trial, the defendant moved that two of the eyewitnesses to the shooting be called for the prosecution. ..., may, in his discretion, call any witness who was present at the transaction * * * for cross-examination by both sides; but, as was said in Hill"'s Case [Hill v. Commonwealth, 88 Va. 633, 14 S.E. 330], a witness so called is not the witness of either party.' (Page 443 of 18 S.E.) .      \xC2"......
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