Jackson v. Commonwealth
| Decision Date | 21 June 1900 |
| Citation | 98 Va. 845,36 S.E. 487 |
| Parties | JACKSON. v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
HOMICIDE—QUARRELSOME CHARACTER OF THE DECEASED—EVIDENCE—ADMISSIBILITY— SELF-DEFENSE—INSTRUCTIONS.
1. To render an assignment of error for the improper exclusion of evidence available, record must show what the party offering the witness expected to prove by him.
2. Where the defendant and the deceased were engaged in a fight, and the defendant struck the fatal blow with a rock while the deceased was running away from him, the quarrelsome and vindictive character of deceased cannot be shown.
3. An instruction that the law of self-defense is the law of necessity, and the necessity relied on to justify the killing must not arise out of the prisoner's own conduct, and that if the prisoner assaulted the deceased, and thereby brought about the necessity of killing him, then the prisoner could not justify the killing by a plea of necessity unless he were without fault in bringing that necessity on himself, was proper.
4. Where there was evidence that the prisoner grossly insulted the deceased, and made an assault on him, in which he struck the deceased a fatal blow with a rock as the latter was running away from him, an instruction that, if the first assault was made on the deceased with a preconceived design to kill or to inflict great bodily harm, then the malice of the first assault, notwithstanding the violence with which it was returned, communicates itself to the last act of the prisoner, and the killing is murder, was supported by the evidence.
5. Where the prisoner and the deceased were engaged in a mutual combat, and the prisoner struck the deceased a fatal blow with a rock as the latter was running away from him, instructions on the law of self-defense were properly refused.
Error to Pulaski county court.
Charles Jackson was convicted of murder, and he brings error. Affirmed.
J. C. Wysor and T. D. Massie, for plaintiff in error.
A. J. Montague, Atty. Gen., for the Commonwealth.
The plaintiff In error was found guilty of murder in the second degree, and sentenced to the penitentiary for a term of five years.
The first error assigned to the rulings of the trial court was its refusal to allow the character of the deceased as a dangerous man to be shown. Two witnesses were asked if they knew the reputation of the deceased as a dangerous man. They stated that they did, but, when asked what that reputation was, the court, upon the motion of the attorney for the commonwealth, refused to allow the questions to be answered. What the witnesses were expected to testify as to the reputation of the deceased is not shown by the bills of exception.
In order that this court can pass upon the action of the trial court rejecting or excluding evidence, its materiality must be shown. Where a question is asked, and the witness is not permitted to answer it, the bill of exceptions should show what the party offering the witness expected to prove by him. If the witness is permitted to answer, and the answer is excluded, the bill of exceptions should show what the answer was; otherwise, this court cannot say that any injury resulted to the party complaining from the action of the trial court. Insurance Co. v. Pollard, 94 Va. 146, 15T, 26 S. E. 421, 36 L. R. A. 271, and cases cited; Driver v. Hart-man, 96 Va. 518, 31 S. E. 899.
But if the bill of exceptions had shown that the defendant expected to prove that the deceased had the general reputation of being a quarrelsome, vindictive, and brutal man, we do not think that such evidence was admissible. Placing the most favorable construction upon the evidence of the accused, he and the deceased were engaged in a mutual combat, commenced with their hands, and afterwards continued with rocks, both parties reaching for rocks at the same time. From this combat the accused made no effort to retire, but pursued the deceased, and threw the rock which killed him while he was moving away from him. The accused had not only not made out a prima facie case of self-defense, as was thought necessary in Harrison's Case, 79 Va. 374, as a condition precedent to the right to introduce evidence of the dangerous character of the deceased, but the evidence did not tend to show that the defendant did the killing in self-defense. This being so, under all the authorities the evidence was clearly Inadmissible. Whart. Cr. Ev. § 84; 2 Bish. Cr. Proc. §§ 625, 626, 629.
The next error assigned Is the giving of instruction No. 9 asked for by the commonwealth. That instruction is as follows:
"That on a trial for murder the law of self-defense is the law of necessity, and the necessity relied on to justify the killing must not arise out of the prisoner's own misconduct; and if the jury shall believe from the evidence that the prisoner, Charles Jackson, assaulted the deceased, and thereby brought about the necessity of killing the deceased, should they believe there was any such necessity, then the prisoner cannot justify the killing of the deceased by a plea of necessity, unless he was without fault in bringing that necessity upon himself."
The objection urged to this instruction is that it "virtually told the jury they must find the accused guilty of murder if he began the affray merely to inflict a battery, and without any felonious intent, and that he could not reduce his crime to any lower grade than murder by the plea of self-defense and by proof sustaining such a plea." We do not so understand the instruction. Its object was to tell the jury that the accused could not justify the killing of the deceased upon the ground of self-defense, and therefore be acquitted, if they believed that he had assaulted the deceased, and by such misconduct brought about the necessity for the killing, if there was such necessity, in order to save his own life. That instruction did not instruct the jury, nor was it intended to instruct them, upon the degree of the prisoner's guilt, whether it was murder or manslaughter, but it was merely intended to tell them that upon the facts hypothetically stated in the instruction the prisoner was not entitled to an acquittal.
This is clearly the law. It was so held in Vaiden's Case, 12 Grat 717, 729, 730. Judge Lee, who delivered the opinion of the court in that case, said: ...
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Smith v. Commonwealth
...law roots, imperfect self-defense is not recognized in the Commonwealth to negate the element of malice. See Jackson v. Commonwealth, 98 Va. 845, 848, 36 S.E. 487, 488 (1900) ("With regard to the necessity that will justify the slaying of another in self-defence, it should seem that the par......
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Gosling v. Com.
...of the evidence must make a proffer of the expected answer in order to preserve the issue for appeal. Jackson v. Commonwealth, 98 Va. 845, 846-47, 36 S.E. 487, 488 (1900). This procedure must be followed because "an appellate court has no basis for adjudication unless the record reflects a ......
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Connell v. Com.
...and still avail himself or herself of the defense of justifiable homicide, such holding was overruled by Jackson v. Commonwealth, 98 Va. 845, 36 S.E. 487 (1900). However, if we interpret Hash to hold that one may avail himself or herself of "imperfect defense" if he or she provoked an attac......
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Frizzell v. Commonwealth
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