Hurd v. Commonwealth

• Decision Date: 22 September 1932
• Citation: 159 Va. 880
• Court: Virginia Supreme Court
• Parties: JOHN HURD v. THE COMMONWEALTH.

Page 880

159 Va. 880

JOHN HURD v. THE COMMONWEALTH.

Supreme Court of Virginia, Staunton.

September 22, 1932.

Present, Campbell, C.J., and Holt, Hudgins, Gregory and Chinn, JJ.

1. HOMICIDE — Indictment for Murder and Manslaughter — Section 4865 of the Code of 1930. — The object of the forms of indictment for murder and manslaughter set out in section 4865 of the Code of 1930 was to eliminate the excessive verbiage used in the old common law forms and to substitute therefor a short, simple statement of the offense charged.

2. HOMICIDE — Indictment — Indictment Charging Murder. — An indictment charging murder is sufficient to sustain a conviction of murder in the first degree.

3. HOMICIDE — Indictment Charging Murder — Accused Informed of the Cause and Nature of His Accusation — Bill of Particulars. — When an indictment charges murder, the accused is informed of the cause and nature of his accusation, although he is not informed of the particulars of the offense — i.e., the time of day, the means or instrument, and the pertinent circumstances under which the killing occurred. If this information is desired by the accused, he has a right to require the Commonwealth to file a bill of particulars.

4. HOMICIDE — Jury — Relation of Jurors to Deceased or His Wife — Case at Bar. — In the instant case it was assigned as error that the court refused to set aside the verdict because two of the jurors were related to the deceased, or his wife, and because one of them had expressed an opinion prejudicial to the accused before he was accepted as a juror. The substance of the evidence was that there might have been, and probably was, a distant connection between the deceased, his wife and the jurors, but the jurors were unaware of this fact at the time they were accepted for service; that neither of the jurors expressed an opinion as to the guilt or innocence of the accused before they were examined on their Voir dire.

Held: That there was no merit in this assignment of error.

5. APPEAL AND ERROR — Record — Evidence Insufficient to Support Verdict — Identification of Evidence — Case at Bar. — In the instant case, a conviction of homicide, the court's refusal to set aside the verdict because the evidence was insufficient to support it was assigned as error. The Attorney General contended that this assignment could not be considered because the evidence was not properly identified. As printed, the record was very confusing, but on examination of the original record as presented to the Supreme Court of Appeals the identification was found to be sufficient.

6. APPEAL AND ERROR — Assignment That Evidence Was Insufficient to Support a Conviction of Homicide — Evidence Stated in Light Least Favorable to Accused — Case at Bar. — The instant case was a conviction of homicide and accused assigned as error the refusal of the trial court to set aside the verdict against him because the evidence was insufficient to support it. In view of the jury's verdict, on appeal, the evidence will be stated in the light least favorable to the accused.

7. HOMICIDE — Aiders and Abettors — Evidence Not Sufficient to Show Participation in Crime — Case at Bar. — In the instant case, a prosecution for homicide, accused was found guilty of aiding and abetting his son in the killing of deceased. While the witnesses stated that the smoke from the explosion of the pistol blinded them, it was hardly possible for accused to have concealed a weapon from the eye-witnesses so quickly after the shooting. If he had a weapon in his hand it seemed incredible under the circumstances that it was not seen. No significance could be attached to the fact that he had his hand in his hip pocket when he entered the room, because it affirmatively appeared that he made no hostile move, and said or did nothing after he reached the room to aid, abet, or encourage his son in the killing.

Held: That the evidence would not support a verdict of guilty.

8. ACCOMPLICES AND ACCESSORIES — Aiders and Abettors — Principal in the Second Degree — Definition. — A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.

9. ACCOMPLICES AND ACCESSORIES — Aiders and Abettors — Principal in the Second Degree — Definition. — Every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks or signs, or who in any way, or by any means, countenances or approves the same, is, in law, assumed to be an aider and abettor, and is liable as principal.

10. ACCOMPLICES AND ACCESSORIES — Aiders and Abettors — Principal in the Second Place — Mere Presence. — Mere presence when a crime is committed is, of course, not sufficient to render one guilty as an aider or abettor. There must be something to show that the person present and so charged in some way procured, or incited, or encouraged, the act done by the actual perpetrator.

11. ACCOMPLICES AND ACCESSORIES — Aiders and Abettors — Circumstantial Evidence. — Whether a person does in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence.

12. ACCOMPLICES AND ACCESSORIES — Aiders and Abettors — Mere Presence. — Something more than mere presence is required to render one an aider and abettor. The test is concert of action, and the result must have been one of its incidental probable consequences.

13. ACCOMPLIES AND ACCESSORIES — Aiders and Abettors — Homicide — Case at Bar. — In the instant case accused was charged with aiding and abetting his son to commit a murder. The burden was on the Commonwealth to show beyond a reasonable doubt that the accused with some word, gesture, look, or sign encouraged or incited his son in the killing, and there is not a scintilla of evidence to show that he did anything to countenance or approve the commission of the crime before, at the time, or subsequent to the killing.

14. CRIMINAL LAW — Burden of Proof — Shifting of Burden of Proof. — The burden of showing guilt of the accused, to the exclusion of every reasonable doubt, is upon the Commonwealth, and this burden never shifts. While the Commonwealth by its evidence may establish such facts as to justify an inference of guilt if not rebutted by the accused, still, if upon consideration of all the evidence there is reasonable doubt of guilt, he should be acquitted.

15. CRIMINAL LAW — Circumstantial Evidence — Consistent with Innocence of Accused. — Where the evidence introduced by the Commonwealth to convict the accused, considered collectively, as it must be when circumstantial evidence is relied upon, is just as consistent with his innocence as with his guilt, that interpretation which acquits the accused must be accepted. For it is fundamental that if there be a reasonable doubt of his guilt there can be no conviction.

Error to a judgment of the Circuit Court of Russell county.

The opinion states the case.

D. F. Kennedy, L. P. Summers and G. B. Johnson, for the plaintiff in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

HUDGINS, J., delivered the opinion of the court.

John Hurd was found guilty, as principal in the second degree, of murder in the first degree and sentenced to twenty years' confinement in the penitentiary. He contends that the judgment of the trial court should be reversed and the verdict of the jury set aside because of three errors committed during the progress of the trial.

The errors assigned are: (1) The refusal of the court to sustain a demurrer to the indictment; (2) the refusal of the court to set aside the verdict on the ground that two of the jurors were disqualified; (3) the evidence was insufficient to sustain the verdict. These will be treated in the order named.

There are three counts in the indictment. The first and second counts are in the form prescribed by Code, section 4865, as amended by acts 1930, chapter 238, for the charge of murder. The first count charges Bill and John Hurd jointly with the killing of Grover Gray. The second count charges Bill Hurd, only, with the killing. The third and last count charges that John Hurd was "present, counselling, aiding, abetting and assisting" Bill Hurd in the killing of the deceased. The grounds of demurrer is that the indictment fails to inform the defendant of the cause and nature of the accusation, as provided by section 8 of the Bill of Rights. It is also contended that the indictment does not specifically charge the elements of murder in the first degree.

The forms of indictment for murder and manslaughter set out in Code, section 4865, as amended by the Acts of 1930, chapter 238, were recommended to the legislature by the judicial council and the Virginia State Bar Association. See Judicial Council Report for 1930, page 115, and Minutes of the Virginia State Bar Association, vol. 41, page 116; American Law Institute Code of Criminal Procedure, sections 157, 159. The object of these forms of indictment was to eliminate the excessive verbiage used in the old common law forms and to substitute therefor a short, simple statement of the offense charged.

The separate degree of murder originated in the act of December 15, 1796, the preamble to which reads:

"And whereas, the several offenses which are included under the general denominations of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment:"

The act classified murder in the first and second degree substantially as now defined by Code, section 4393, and the punishment was fixed according to the degree of atrociousness or extenuation under which the offense was committed. While the punishment for murder in the second degree was reduced, this court has consistently held that an indictment charging...