Horton v. Commonwealth

• Decision Date: 21 March 1901
• Citation: 99 Va. 848,38 S.E. 184
• Parties: HORTON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

38 S.E. 184

99 Va. 848

HORTON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 21, 1901.

HOMICIDE — ACCESSORIES — PROSECUTION — INSTRUCTIONS—-EVIDENCE—MANSLAUGHTER —SUFFICIENCY—VERDICT—FORM.

1. In a prosecution for being present aiding in a murder, the principal having been indicted for murder in the first degree, it was proper to instruct that a mortal wound given with a deadly weapon in the previous possession of the slayer, without any or very slight provocation, is prima facie willful and premeditated killing, and throws on the accused the necessity of proving extenuating circumstances.

2. In a prosecution for being present aiding in a murder, it was proper to instruct that in considering whether defendant was a principal in the second degree all the acts and declarations of defendant at the time and before and after the killing might be considered, and if, from the whole evidence, it appeared that defendant was so aiding and abetting, he was guilty.

3. In a criminal prosecution an instruction was proper that the credibility of witnesses is exclusively for the jury, and, where witnesses contradict each other, the jury may determine from the appearance of the witnesses, their manner, their apparent intelligence, and all other surrounding circumstances, which witnesses are more worthy of credit, and give credit accordingly.

4. It was proper to refuse an instruction that if a reasonable doubt of any fact necessary to convict is raised in the mind of the jury by the evidence itself, or by the ingenuity of the counsel, on any hypothesis consistent therewith, that doubt is decisive of the defendant's acquittal as misleading.

5. In a prosecution for being present aiding, abetting, and assisting in a murder, it was proper to refuse an instruction that if defendant participated in any way by word or act in a difficulty between the principal defendant and deceased, but there was a reasonable doubt as to whether such participation was for the purpose of aiding and abetting in the killing, defendant should be acquitted, since, if the principal was guilty of murder, and defendant was abetting and consenting to what he did, he is guilty of the offense charged.

6. Where defendant was charged as an accessory before the fact or principal in the second degree to the crime of murder, a verdict of guilty as charged in the indictment was sufficient in form.

7. Deceased, who had been forbidden to come on defendant's premises, did so, and the principal defendant engaged in a controversy, which resulted in his striking deceased with a paling, causing his death. Defendant was present and participating when the fatal blow was struck, and deceased in his dying declaration said that defendant and his boys killed him. A witness testified that defendant had said several mouths before that he would get deceased; all be wanted was to catch him on his premises. Held sufficient to sustain defendant's conviction of voluntary manslaughter.

Appeal from Russell county court. Taylor Horton was convicted of voluntary manslaughter, and he appeals. Affirmed.

Wm. E. Burns and J. F. Griffith, for plaintiff in error.

A. J. Montague, Atty. Gen., for the Commonwealth.

KEITH, J. Jack, Taylor, and Henry Horton were indicted in the county court of Russell county for the murder of William Horton; Jack Horton being charged with the actual commission of the crime, and Taylor and Henry Horton as being present aiding, abetting, and assisting him in its perpetration. Upon their arraignment Taylor and Henry Horton demurred to the indictment, and, the demurrer being overruled, they pleaded not guilty, and upon their trial the jury rendered a verdict finding Henry Horton guilty of murder in the second degree, and fixing his term of imprisonment in the penitentiary at five years, and Taylor Horton guilty of voluntary manslaughter, and ascertaining his term of confinement in the penitentiary at one year.

The demurrer was properly overruled. See Hatchett v. Com., 75 Va. 931; Kemp v. Com., 80 Va. 450.

After the evidence had been Introduced, numerous instructions were asked upon the part of the commonwealth, all of which were given. The prisoner excepted to Nos. 8, 10 1/2, and 13, which are as follows:

"No. 8. The court instructs the jury that a mortal wound given with a deadly weapon in the previous possession of the slayer, without any or upon very slight provocation, is prima facie willful and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances."

"10 1/2. The court instructs the jury that inconsidering whether or not Taylor Horton and Henry Horton are principals in the second degree in this case, aiding, abetting, counseling, advising, or consenting to said killing of William Horton, they may consider all the acts and declarations of the said Taylor Horton and Henry Horton at the time of the said killing, both before and after the killing of the said William T. Horton; and if they believe from the whole evidence that they were so aiding and abetting in said crime, then they are guilty in this case."

"13. The court instructs the Jury that the credibility of the witnesses is a question exclusively for the Jury, and the law is that, where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of evidence as equally balanced. The jury have the right to determine from the appearance of witnesses on the stand, their manner of testifying, and their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are more worthy of credit, and to give credit accordingly."

The prisoner also asked Instructions, all of which were given except numbers 10, 11, and 12, which are as follows:

"No. 10. The court instructs the jury that upon the trial of a criminal case, if a reasonable doubt of any fact necessary to convict the prisoner is raised in the mind of the jury by the evidence itself, or by the ingenuity of the counsel, upon any hypothesis consistent therewith, that doubt is decisive of the prisoner's acquittal.

"The verdict of not guilty means no more than this: that the guilt of the accused has not been demonstrated in the precise, specific, and narrow form prescribed by law. The evidence, to convict the prisoner, must not merely be beyond all reasonable doubt consistent with the hypothesis of his guilt, It must also be beyond all reasonable doubt inconsistent with any hypothesis of innocence that can be reasonably drawn therefrom.

"No. 11. The court tells the jury that if they should believe from the evidence that Taylor Horton and Henry Horton participated in any way, whether by word or act, in a difficulty with Jack Horton and William T. Horton, deceased, yet if, from the whole evidence, the jury should have a reasonable doubt in their minds as to whether or not such participation was for the purpose of...