Hodges v. Commonwealth

• Decision Date: 06 July 1892
• Citation: 15 S.E. 513,89 Va. 265
• Parties: Hodges v. Commonwealth.
• Court: Virginia Supreme Court

15 S.E. 513

89 Va. 265

Hodges

v.Commonwealth.

Supreme Court of Appeals of Virginia.

July 6, 1892.

Homicide—Record of Indictment—Competency op Juror—Evidence—Instructions.

1. An entry in the order book of the county court that the grand jury returned into court and presented "an indictment against O. H. for murder—a true bill"—is a sufficient record of the fact of indictment in the county court.

2. On a motion to set aside a conviction of murder in the second degree, on the ground of a previously expressed opinion of a juror that defendant should be hung, the juror in question admitted that he might have said defendant "would" be hung, but denied that he said she "should" be hung; that he did not then know that he had been placed on the venire; that he had never expressed an opinion as to her guilt or innocence; that his sympathies were with defendant; and that he at first favored fixing her term in the penitentiary at the minimum limit. Held, the defendant was not prejudiced by the impaneling of this juror, and that the motion was properly denied.

3. Deceased, with two male companions, G. and P., was drinking and playing cards for money at defendant's house of ill fame. P. had about $250, and was supporting defendant in the game. Deceased awoke from a nap, and proposed that he and P. should go. Defendant resented the proposition, and said that deceased, if anybody, had better go. Deceased said, with an oath, that he would go when he pleased. Defendant threatened to shoot unless deceased went, and retired to get a pistol, deceased following, opening his coat, and telling her to shoot. Defendant got the pistol out of a trunk, and snapped it at deceased. F. stepped between them, but defendant pushed him aside, and fired. Deceased was unarmed, was singing and dancing at the time, and made no demonstration against defendant.

Held, that a conviction of murder in the second degree should not be disturbed.

4. The court properly refused to instruct the jury that timidity of disposition is to be taken into consideration in determining the existence of reasonable ground of apprehension of bodily harm to support a plea of self-defense, where there was no evidence in the case to justify the instruction.

5. Evidence offered by defendant that, several months before the homicide, deceased had assaulted defendant with intent to commit a rape on her, was properly excluded, being in no way connected with the homicide, which was committed under entirely dissimilar circumstances.

Error to circuit court, Franklin county.

Indictment against Octavia Hodges for murder. Defendant was convicted, and brings error. Affirmed.

Dillard & Dillard, for plaintiff in error.

R. Taylor Scott, for the Commonwealth.

Lacy, J. This is a writ of error to a judgment of the circuit court of Franklin county, rendered at the May term, 1891. The plaintiff in error was indicted in the county court of Franklin county for murder, hut, on her arraignment in said court, elected to be tried in said circuit court, to which court her case was thereupon remanded, as required by law. The trial in the said circuit court resulted in a conviction for murder in the second degree, and the period of her confinement fixed at six years in the penitentiary. The accused excepted to sundry rulings of the court during the trial, and at its conclusion moved the court to set aside the verdict of the jury, and grant a new trial; but this motion the court overruled, and rendered judgment in accordance with the verdict, and the accused excepted. From the said judgment of the circuit court the case was brought to this court by writ of error.

The first error assigned here is that the court erred in overruling the motion of the accused to quash the indictment, because the finding of the grand jury upon the indictment was not recorded, as is held to be necessary in Cawood's Case, 2 Va. Cas. 527; Price's Case, 21 Grat. 864. This case in that respect is not defective. The record shows that the grand jury returned into court, and presented "An indictment against Octavia Hodges for murder, —a true bill, "—which indictment is recited. The circuit court did not, therefore, err in this action, as the finding of the grand jury was duly recorded.

The second assignment of error is as to the exclusion by the court of the testimony of a witness, Edwards, as to a transaction occurring several months before the homicide in question, and now under investigation, and in no way connected with it. The bill of exceptions shows as to this that, on the trial of the cause, the prisoner introduced one Henry Edwards as a witness in her behalf, and the following question was asked him by counsel for the prisoner: "Question. State whether or not some time in the month of March, before the homicide under consideration, yon were at the house of the prisoner, and saw any conduct on the part of the deceased towards prisoner that indicated a purpose on the part of the deceased to make an assault upon her, for the purpose of committing rape upon her, and state fully conduct of deceased and prisoner on that occasion? (To which the attorney for the common wealth objected, and the court, after sending the jury to their room, required the witness to answer the question.) Answer. Can't say what his intentions were. Heard the cries of the lady of the house and the child. I went over, —Cunningham was rushing Octavia to the corner, —and took him away from her at once. He had a long knife in his hand. She was hollering when I went in. He swore in some words, ' I mean to have my time with you, ' or something like that. He was drunk. He had been there on a drunk about three weeks. I carried him away next morning to Union Hall. " And thereupon the court sustained the objection to the question, and would not allow same to be asked before the jury, either before or after the prisoner testified, said motion to admit testimony of said Edwards being made both before and after prisoner testified; to which opinion of the court refusing to allow said testimony, the prisoner excepts. This evidence was properly excluded by the court. The transaction occurred in March, and was no way connected with the horrible homicide, which occurred in May, and was committed under altogether different circumstances.

The third assignment of error is as to the qualification of a juror, made after verdict, that the said juror had before the trial expressed an opinion as to the guilt of the accused. Our statute provides that "no exception shall be allowed against any juror, after he is sworn upon the jury, on account of age or other legal disability, unless by leave of court." Section 8155, Code Va. Section 3154 of the Code provides that "the court shall, on motion of either party in any suit, examine on oath any person who is called as a juror therein, to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any competent evidence in support of the objection; and, if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called, and placed in his stead, for the trial of the cause." But after verdict, if the party interested shall have failed to avail of this protection provided for him before verdict by the law, his objection is then to be determined by the court in its discretion, according to the merits of the question. In this case, after the jury had rendered their verdict, convicting the prisoner of murder in the second degree, and fixing her term of confinement in the penitentiary at six years, she moved the court to set aside the verdict of the jury, and grant her a new trial, because, assliealleges, James De Witt, one of the jurors, had previously said that he had formed and expressed an opinion in the case, and that she ought to be hung, and filed in support of her motion the following affidavit of Moorman Tatum: "Affidavit. This day personally appeared before me Moorman Tatum, and made oath that on Saturday last, the 9th day of May, 1891, he heard James De Witt, who was a member of the jury who tried and convicted Octavia Hodges, who was charged with the murder of R. J. Cunningham, say that he had been summoned as a member of the jury to try the said Octavia Hodges, and that he could not serve because he had formed and expressed the opinion that the said Octavia Hodges ought to be hung. Given under my hand, this the 13th day of May, 1891. W. H. Perdue, J. P." And thereupon said juror, James De Witt, being in court, was duly sworn and, in answer to questions propounded, denied that he had told said Tatum what he alleges in his affidavit, but admitted that he might have said at Snow Creek, on the 9th of May, that she would be hung, but at that time did not know that he was summoned on the venire for her trial; that he had never made up or expressed any opinion as to the guilt or innocence of the...