Jackson v. Commonwealth

• Citation: 30 S.E. 452,96 Va. 107
• Parties: JACKSON. v. COMMONWEALTH.
• Decision Date: 23 June 1898
• Court: Virginia Supreme Court

30 S.E. 452

96 Va. 107

JACKSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 23, 1898.

Assault with Intent to Kill —IndictmentCourt.

1. An indictment charging an assault with intent to kill need not state the weapon with which the assault was committed.

2. On the trial of one accused of assaulting another while cutting off his water for non payment of dues, the prosecuting witness having stated that the cutting off of his water was liable to burst his boiler, it was proper to ask him whether his water was not cut off before for nonpayment, and whether his boiler burst then, and also whether he did not know that it was a rule of the water company to turn off water when the tax was not paid.

3. To constitute ground for reversal, the discretion of the court in permitting a witness to remain while others are excluded must be improperly exercised, and result in injury to appellant.

4. On a trial of an employe of a water company for assaulting another while turning off his water for nonpayment, it is improper for the prosecuting witness to show that accused owed him more than enough to pay the delinquent tax.

5. It is too late to object to a question as leading after the answer has been given.

6. It is proper for one accused of assaulting another while turning off his water for nonpayment of dues to testify that he did not cut off the water through malice.

7. It is discretionary with the court to permit the prosecuting attorney to retire from a case, and to permit other counsel to conduct it; and, in the absence of abuse or of prejudice to accused, such action is not reviewable.

8. Where there is evidence in support of two opposing theories as to the cause and motives of an alleged assault, and the court charges as to the theory of the commonwealth, it is error to refuse an instruction covering the theory of accused.

Error to Tazewell county court.

Charles Jackson was convicted of the crime of maliciously and feloniously wounding another with intent to maim, disfigure, and kill, and he appeals. Reversed.

On the trial, George Ratliff, the prosecuting witness, having testified in chief, "If the water had been cut off, my water boiler or pipe was liable to burst from the steam, and injure my family, " was asked on cross-examination by defendant's counsel, "Wasn't your water cut off last June, or some time last summer, for failure to pay your water 1ax?" This witness was also asked on cross-examination, "Didn't you know it was a rule of the company and Chester Williams that, when a party is in default in the payment of his water tax, his water is turned off?" On the objection of the commonwealth, these questions and the answers thereto were excluded from the jury, and these rulings are the subjects of the second and third assignments of error.

May, May & Smith, for plaintiff in error.

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

KEITH, P. Charles Jackson was indicted in the county court of Tazewell county for maliciously and feloniously wounding George Ratliff with intent to maim, disfigure, disable, and kill. To this indictment, and to each of its two counts, the defendant demurred; and the action of the court in overruling the demurrer to the first count is the first error assigned.

The objection urged is that the count does not state the weapon with which the assaultwas made. We are of opinion that it was unnecessary to do so, and that the demurrer was properly overruled. See Canada v. Com., 22 Grat. 890.

During the progress of the trial, the prisoner, by counsel, on the cross-examination of George Ratllff, upon whom the assault Is alleged to have been made, asked him certain questions, to which he made answer. Upon the motion of the commonwealth, these questions and answers were excluded by the court, and these several rulings of the court are the subjects of the second and third assignments of error.

We are of opinion that the questions and answers should have gone to the jury. They are relevant, and might have had some effect upon the minds of the jury; but they are not of sufficient interest and importance to warrant an extended discussion in this opinion.

At the beginning of the trial, upon the motion of the commonwealth, the witnesses were ordered to leave the court room, and not to return until called; but, at the request of counsel employed to aid the prosecution, George W. Ratliff was permitted to remain in court during the trial. This ruling of the court is assigned as error.

Trial courts must be allowed a discretion in such matters. There might be circumstances which would render it improper to permit one witness to remain while others were excluded; but, in order to constitute it a ground for reversal, it must appear that the discretion of the trial court was improperly exercised, and that It operated to the injury of the prisoner.

Counsel for the prosecution were permitted to ask George Ratliff, "Didn't Charles Jackson owe you?" to which Ratliff replied, "Yes, sir; what he owed me overpaid the order for my water tax." It seems that Charles Jackson was sent to the premises of George Ratliff to collect of him the water rates due to the Richlands Waterworks; and out of this effort to collect what was claimed to be due by Ratliff the difficulty grew which resulted in the alleged assault by Jackson upon him. This question and answer should have been excluded. That Jackson owed Ratliff was entirely immaterial, and the state of accounts between Jackson and Ratliff irrelevant to the subject under investigation.

The prisoner, while testifying in his own behalf, was asked, "Did you, in your attempt to cut off the water...