Hite v. Commonwealth

• Decision Date: 01 December 1898
• Citation: 96 Va. 489,31 S.E. 895
• Parties: HITE . v. COMMONWEALTH.
• Court: Virginia Supreme Court

31 S.E. 895

96 Va. 489

HITE .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 1, 1898.

Murder — Declaration — Objection to Juror— Assignment op Error—Continuance.

1. Action on motion for continuance will not be reversed, unless it was plainly erroneous.

2. Statement of accused as to his reason for killing deceased is admissible; having been made, after the preliminary examination, to a justice of the peace, who was not the acting justice of the peace on that occasion, in reply to his question, without any inducement being held out.

3. Assignment of error to refusal of instruc-tions asked, and the giving of others in lieu thereof, should point out the error.

4. It being declared by Code 1887, § 3155, and Pollard's Supp. Code, § 4048, that no exception to a juror on account of his age shall be allowed after he is sworn on the jury, objection after verdict that on that account he is incompetent, under the constitution and laws, is too late, though his age was not previously known.

5. Declaration of deceased, a negro, to defendant, that he was not afraid of defendant shooting him, is no excuse for the killing.

6. A killing is not excused by the fact that defendant had for many years been accustomed to drink heavily at times, and was drinking at the time of the offense; it not appearing that he was so under the influence of liquor that he did not know what he was doing, or right from wrong.

Error to Mecklenburg county court.

George Hite was convicted of murder, and brings error. Affirmed.

Chas. T. Reekes, for appellant.

The Attorney General, for the Commonwealth.

BUCHANAN, J. A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, while an appellate court will supervise the action of the trial court on such motion, it will not reverse, unless such action was plainly erroneous.

This Is the rule as laid down In Hewitt's Case, 17 Grat. 627, and it has been uniformly adhered to by this court. Roussell's Case, 28 Grat. 930; Mister's Case, 79 Va. 9; and 4 Minor, Inst. (4th Ed.) 1077, and cases cited.

The record does not show that the action of the court in refusing to continue the case was plainly erroneous.

There is nothing in the record to show that the defendant did not have a fair and impartial trial, that he did not have all persons present as witnesses who knew anything that was favorable to him, or that his counsel did not make as good a defense for him as he could have done if his case had been continued.

Neither did the court err in permitting the witness Moody to give in evidence the statement of the accused as to his reason for killing the deceased. It is true that Moody was a justice of the peace, and that this statement was made in reply to a question from him, but it was not made under circumstances which rendered it inadmissible in evidence. It appears that, after the preliminary examination, Moody, who was not the acting justice of the peace on that occasion, asked the defendant what made him kill the deceased, and that he (the defendant), without any inducement whatever, gave the answer which was admitted in evidence over his objection. The rule is that a confession may be given in evidence, unless it appear that it was obtained from the party by some inducement of a worldly or temporal character, in the nature of a threat, or promise of benefit held out to him in respect of his escape from the consequences of the offense, or the mitiga tion of the punishment, by a person in authority, or with the apparent sanction of such a person. Smith's Case, 10 Grat. 734, 739; Mitchell's Case, 33 Grat. 845.

The evidence objected to was clearly admissible.

The court instructed the jury, upon the motion of the attorney for the commonwealth, that if they believed "from the evidence that William Bowers came to his death by a wound, as charged in the indictment, inflicted by George Hite with a deadly weapon previously in the possession of the said Hite, without any, or upon very slight, provocation, it is prima facie willful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances." The giving of this instruction is assigned as error.

It is not claimed that that instruction does not state the law correctly, where the evidence tends to prove the facts upon which it is based, but the contention is that it was not applicable to the facts of this case. The evidence tends to show that the deceased came to his death from a wound inflicted by the defendant with a deadly weapon previously in his possession, without the slightest provocation....