Howell v. Commonwealth

• Decision Date: 16 December 1875
• Citation: Howell v. Commonwealth, 67 Va. 995 (1875)
• Parties: HOWELL v. COMMONWEALTH.
• Court: Virginia Supreme Court

67 Va. 995

HOWELL v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 16, 1875

1. Upon the evidence the prisoner held to be guilty of murder in the first degree.

2. The jury having found the prisoner guilty of murder in the first degree, and the court of trial having refused to set aside the verdict and grant a new trial, the appellate court even if they had some doubt about the sufficiency of the evidence to convict the prisoner of murder in the first degree, would not reverse the judgment.

3. Murder committed by any of the specific means enumerated in the statute, Code of 1873, ch. 187, § 1, is murder in the first degree, whether there was any actual intent to kill or not.

At the November term 1873 of the County court of Patrick county Isaac C. Howell was indicted for the murder of Lee Martin. He was tried at the July term 1874, of the court, and found guilty by the jury of murder in the first degree; and the court sentenced him to be hung. The only question in the case arises upon the motion of the prisoner for a new trial, on the ground that the verdict was contrary to the law and the evidence; which was overruled by the court; and exception taken by the prisoner. And upon his application this court allowed him a writ of error to the judgment. The case is fully stated by Judge Moncure in his opinion.

Martin and Barksdale for the prisoner.

The Attorney-General, for the commonwealth.

MONCURE P.

This is a writ of error to a judgment of the Circuit court of the county of Patrick, convicting Isaac C. Howell of murder in the first degree, and sentencing him to the punishment of death therefor. The prisoner moved the court to set aside the verdict and grant him a new trial because the verdict was contrary to the law and the evidence; but the court overruled the motion, and the prisoner excepted to the opinion of the court. The bill of exceptions contains a certificate of what is stated to be " all the facts proved in the case." The only assignment of error in the judgment is the refusal of the court to award a new trial.

Beyond all question the prisoner killed the deceased; and in so doing was guilty of murder. These facts were not, and upon the evidence or facts certified, could not be denied. The only question argued or raised in the case was, whether the offence, as shown by the records, was murder in the first or second degree. The learned counsel for the prisoner argued that murder is presumed to be only murder in the second degree, unless and until it be proved to be murder in the first degree; and that the murder in this case was not proved to be murder in the first degree.

The legal proposition thus contended for is certainly true. But is it true that the murder in this case was not proved to be murder in the first degree?

The law defining the degrees of murder may be found in the Code chapter 187, section 1, page 1188; and is in these words: " Murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery or burglary, is murder in the first degree. All other murder is murder in the second degree."

The offence in this case was certainly not committed by any of the specific means enumerated in the statute, that is " by poison, lying in wait, imprisonment or starving" ; nor in the commission of, or attempt to commit, any of the specific offences therein named, to wit: " arson, rape, robbery or burglary." Had it been so committed, it would have been murder in the first degree, whether there was any actual intent to kill or not. In other words, although the presence of an actual intention to kill would often exist in such a case, it would not necessarily constitute an ingredient of the offence, as it would be no part of its definition.

If, therefore, the offence in this case be murder in the first degree, it must be because it is embraced by the general words: " any wilful, deliberate and premeditated killing," used in the statute. And to constitute murder in the first degree under that branch of the statute, the offence must be committed with an actual intention to kill. And to authorize a conviction of such an offence, it must appear from the evidence that such an intention existed.

Does it appear from the facts or evidence certified in this case, that such an intention existed?

The certificate is in these words: That on the 21st day of November 1873, about 9 o'clock, the prisoner came to the house of Peter Via, who lived about half a mile from the prisoner's mill, and said he " was afraid he had stretched Lee Martin," the deceased, and he wished the witness to go with him to the mill where the deceased was. On the way to the mill, the prisoner stated to the witness, that on the same morning he, the prisoner, was in his mill, on the upper floor, stooping down upon his knees, trimming a wedge on a block with a hatchet or small chop axe; that the deceased came into the mill, on the same floor on which the prisoner was, having a small sack of corn and a tin bucket on his arm; that the deceased placed his sack of corn near the mill hopper (having passed by the prisoner) and turning immediately advanced upon the prisoner, while he was yet upon his knees, with an open knife in his hand, his arm drawn back in a threatening attitude--the knife being a pocket knife about six inches long, blade and handle--the blade having a sharp point; that the prisoner thereupon, in order to defend himself, struck the deceased two blows with the blade of said axe; that the deceased gave back upon receiving the first blow; advanced again with his drawn knife, and that the prisoner tapped him the second time; when the deceased, who was near the brink of the upper floor, fell to the lower floor; that the prisoner then further stated, that as soon as the boy fell, and he saw he was badly hurt, he went below to see what he had done; that he turned the boy over on his side in an easy position, and then went immediately to give information to the nearest neighbor, who was the witness; that the witness went on immediately to the mill with prisoner at his request; that when they got to the mill, he found the deceased on the floor, as stated by the prisoner, and yet alive and in a very bad condition.

The prisoner went in the mill with witness to see the condition of deceased. Seeing how he was, prisoner asked him (witness) what he thought had better be done, and said he thought he would give himself up to a magistrate, if one could be found in the neighborhood. Witness told him he knew of none near by, and that prisoner might see E. B. Turner, who was a police officer. Prisoner then requested witness to go after James Wright, a school teacher near by. Witness went after Wright, saw him, delivered the message, went on to Tazewell Turner's, and before getting to Turner's prisoner overtook him, and said he believed he would go with him. The four parties mentioned then returned to the mill.

It was further proved that the mill house was about 22 feet square; that it was about 8 feet 8 inches from the lower to the upper floor; that there were no plank on the lower floor, and the deceased was no more than 18 inches from the brink of the upper floor when he received the blows from prisoner, and fell or struggled below; that there were two logs or sills on lower floor and that the upper floor extended over about half the upper story.

It was further proved, that the block upon which the prisoner was chopping when the deceased entered the mill, was on the right of the front door as they entered, and about four feet from the door. The distance from the door to the mill hopper is about 15 feet; from block to right hand wall about 18 inches or 2 feet; from block to mill hopper about 8 or 10 feet; that the prisoner showed one of the witnesses the place where he said the deceased stood when he was struck, and that this point was 4 or 5 feet from the block, on a line to the hopper; that the knife, the hat and the tin bucket were found below, and the hatchet above on the bag of corn with the handle next to the steps leading below, as if placed there by some one coming from below. There was blood on the blade of the axe; the hat was on the sill below, with no appearance of having been cut with the axe, with a few sprinkles of blood on it, and looking as if it was placed there--it was a felt hat and seemed to have been taken up and and put there. There were some sprinkles of blood on side of bucket; there was no blood on the upper floor. It was a cold morning and there was a little fire in the mill on lower floor. There was some blood on the side of steps in two or three places, as if made by the left hand in going up. The deceased was 15 years old weighed about 85 pounds, was rather delicate in appearance, and was on his way to school, having come by the mill to bring his corn. The prisoner is about 45 years old, and is a strong and able bodied man. In going from the mill to Via's house, the prisoner had to cross two branches. On his return from Via's house to the mill, Via saw some blood on the prisoner's hand. It was proved, that the prisoner went to the house of Wright the school teacher, and made complaint to him about the conduct of the deceased who was then attending his school, along with the prisoner's children: this was about three days before the killing. He complained that the deceased had treated his children very...