Hines v. Commonwealth

• Decision Date: 14 June 1923
• Citation: 117 S.E. 843
• Parties: HINES v. COMMONWEALTH.
• Court: Virginia Supreme Court

117 S.E. 843

HINES

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 14, 1923.

Error to Hustings Court, Part 2, of Richmond.

Walter R. Hines was convicted of second degree murder, and he brings error., Reversed and remanded.

J. M. Turner and L. O. Wendenburg, both of Richmond, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

KELLY, P. Walter R. Hines was indicted for the murder of W. I. Curtis, a police officer of the city of Richmond. The jury found him guilty of murder in the second degree, fixing his punishment at confinement in the penitentiary for a term of 15 years. The trial court pronounced judgment upon him in accordance with the verdict, and to that judgment this writ of error was awarded.

There are eight assignments of error, all of which have been carefully considered, but we shall discuss only two of them. As to the others it is enough to say that some of them involve questions which are not likely to arise at another trial, and as to all of them the action of the trial court was plainly right. They present no points of interest ordifficulty, and do not warrant a review by this court.

1. At the time of the homicide the accused was keeping himself in hiding from the police officers of the city of Richmond to avoid arrest for a second offense against the prohibition law; and he remained in hiding after Officer Curtis was killed until he was discovered and arrested. At the trial he sought to prove that after learning that he was being charged with the murder he wanted to surrender himself to the officers at once in answer to that charge, and was dissuaded from doing so by his brother, who, upon advice of counsel, thought best to defer the surrender until Judge Wells of the trial court, who was then out of the city, could be consulted. The court refused to admit this evidence, and the prisoner excepted.

The commonwealth does not appear to have laid any particular stress upon the fact, if it was a fact, that the accused evaded arrest for the murder, and no instruction was asked for or given upon that point. If there were no other error in the case, the refusal to allow the prisoner to introduce, for what the jury might have thought it worth, his alleged reason for remaining concealed would hardly warrant a reversal of the judgment. We think It would have been better, however, if the court had admitted the evidence in question. The conviction depended wholly on circumstantial evidence, and it would seem only fair to allow the prisoner to repel, if he could, the effect which the jury would perhaps very naturally have attached to the circumstance that he appeared to be evading arrest. If this evidence is offered at another trial, it ought to be admitted. See Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832.

2. The more serious question in the case arises upon the action of the court in refusing to set aside the verdict and award a new trial for after-discovered evidence. The motion for a new trial was also based on the alleged insufficiency of the evidence, as actually introduced, to sustain a conviction; but we do not understand this branch of the motion to be seriously pressed.

The killing occurred shortly after two o'clock a. m., August 22, 1921, in a vacant lot in South Richmond. The deceased was shot three times in rapid succession with a 38-caliber pistol, and instantly killed. A number of witnesses heard the shots, and one of them saw the flash from the pistol; but it is not claimed that there were any eyewitnesses to the shooting, or that anybody recognized the perpetrator. Several persons went to the scene at once, and various members of the police force arrived in a few moments.

The evidence as to the condition of the ground tended to show that the deceased and his adversary had been engaged in a struggle. A cap was found near where he fell which some of the witnesses for the commonwealth undertook to positively identify as one belonging to the accused; but their evidence was of itself not entirely free from impeachment, and the accused denied ownership of the cap, and introduced certain evidence tending to corroborate his denial. The conclusiveness of the identification depended upon the weight and credibility of the testimony.

The bullets which caused the death of the deceased appeared to have been fired from a pistol like the one traced to the possession of the accused. It was shown that he was in Richmond that night, and the jury might well have believed from the evidence that he was in the vicinity of the crime and had the opportunity to commit it. It was also shown that he was evading arrest for a second violation of the prohibition law (a felony); that he understood that the police officers, including the deceased, were looking for him; and that he had made threats of violence against such officers in general, and against the deceased in particular.

Under these circumstances, which were elaborated at very great length in the testimony, we could not say that the evidence was not sufficient to sustain the conviction. It was for the jury to decide whether the facts were established as claimed by the commonwealth to the exclusion of a reasonable doubt. The ownership of the cap was the most vital circumstance, and under the evidence which they heard they might well have been thoroughly satisfied that the cap belonged to the accused.

The difficulty in the case arises upon the alleged after-discovered evidence and that evidence, as we shaft see, if credited by the jury, would have changed their view, not only as to the ownership of the cap, but also as to the weight to be given to the possession by the accused of a 38-caliber pistol and the motive and opportunity which he was shown to have had for the commission of the crime. To be more specific, the alleged after-discovered evidence tended to show that the cap belonged to a third party, who had a similar gun, a similar motive, and a similar opportunity, and who, in addition to these circumstances, admitted to several persons that he, and not the accused, had committed the crime.

To properly appraise the materiality of the alleged after-discovered evidence, it is important to have in mind certain facts disclosed at the trial and not heretofore mentioned. It was shown by the testimony that just after the shooting a man was seen to run from that direction and disappear. He was a larger man than the accused. This circumstance was called to the attention of the officer directing the investigation at the scene of the murder a short time after the shooting; but his suspicions had already settled upon theaccused, and he apparently did not attach much importance to this incident. In answer to a suggestion that it might be well to examine the tracks of the man who had been seen to run away, or use blood hounds on his trail, the officer replied, according to the version given by the witness: "Oh, h——1! It is nobody but Walter Hines." The witnesses who saw this man running away were not sure whether he wore any headgear, but they did not think he was the accused.

The verdict in this case was rendered on the 23d day of January, 1922, and on that day a motion for a new trial was made and taken [under advisement by the court. On April —, 1922, the accused added to the grounds of his motion the allegation of aftter-discovered evidence, and filed numerous affidavits in support of such ground, setting up the following facts:

One Curtis Jenkins, a resident of Richmond, died in February, 1922. He was a larger man than Walter Hines. He was a bootlegger, and had said that no officer could ever carry him alive to the police station again, and that—

"before he would let an officer take his whisky from him that he or the officer would wear a wooden overcoat, meaning a coffin."

He had at least one customer for whisky in the neighborhood of the crime, and he knew the police officers were trying to arrest him for a violation of the prohibition law. He usually carried a 38-caliber pistol, and wore a cap like the one found at the scene. He left home with a pistol on the night of the killing, was out all night, came to his brother's house about 3 or 4 o'clock that morning intoxicated and bareheaded, said he had lost his cap, and he borrowed a hat from his brother. He told another affiant early that morning, that he had been in a fight that night and lost his cap. He asked the last-named affiant if he had heard that Officer Curtis had been killed, and, on being asked by affiant if he had killed him, said he did not do it. About 11 o'clock on the morning after Curtis was killed, Jenkins went to the home of his sister-in-law, Mrs. Floyd Jenkins, and asked for a cup of coffee. He did not have on the same cap which he had been wearing, and said he had left the old one in the city. About a month later he came to the house of this lady and asked for a loan of $100. On being asked what he wanted with it, he said he wanted to leave the country and save himself from the electric chair, and when he was questioned further said, "Oh, well, if you will not let me have it, I might as well go on to jail." When the jury's verdict was returned in this case, Curtis Jenkins and his brother, Raymond Jenkins, were outside of the court room, and Curtis said to Raymond, "It was a d——n shame he had to pull fifteen years for that crime—that he was not guilty." During the trial he said to another affiant that "he could swear that Walter Hines never killed Officer Curtis." Two nights before Curtis Jenkins was taken sick he was playing cards with James Nunnally, and at that time exhibited a 38-caliber pistol and said to Nunnally, " 'I have something to tell you if you will promise me not to tell anybody;' and I told him I would not, and asked him what it was; and he said, T killed Policeman Curtis, and for God's sake don't tell anybody;' and I promised him I would not, and he then said, 'It is another one I want to kill;' and I asked him who it...