Jackson v. Commonwealth

• Decision Date: 16 February 1870
• Citation: 60 Va. 656
• Parties: JACKSON v. THE COMMONWEALTH.
• Court: Virginia Court of Appeals

60 Va. 656

JACKSON v. THE COMMONWEALTH.

Military Court of Appeals of Virginia.

February 16, 1870

1.Upon a trial for felony it is the right of the prisoner, a right which he cannot waive, to be present from the araignment to the verdict.And if the evidence of a witness on the trial, which has been reduced to writing, or any part of it, is read to the jury in the absence of the prisoner, it is error, for which the verdict will be set aside.

2.Though the deceased may have expressed himself and have acted in such way as to indicate that he had no hope or expectation that he would live, yet if he afterwards so expresses himself as to indicate a hope, his statements in relation to the contest in which he was struck, are not to be admitted in evidence as dying declarations.

3.A single sentence is uttered by the deceased, and he is then interrupted, and obviously has not completed what he had intended to say.It is not admissible in evidence for the prisoner.

At the February term of the County court of Prince Edward for 1869Nathaniel H. Jackson was indicted for the murder of Alexander Bruce.At the same term of the courthe was arraigned, and demanded to be tried in the Circuit court of the county.At the August term of this courthe pleaded " not guilty," and was put upon his trial.

After the evidence had been introduced, and the jury had retired for deliberation, they came into court and stated that there was a difference of opinion among some of the jurors in respect to a portion of the testimony of Atkins R. Dalby, a witness on behalf of the prisoner, and asked that he might be recalled, in order that he might be re-examined: whereupon, a portion of the testimony of Dalby, as taken down, was read to the jury; the said Dalby not being then in court; nor was the prisoner.But whilst the said testimony, as taken down, was being read, the prisoner was brought into court by the sheriff of the county; and the prisoner being in court, it was agreed by the counsel on both sides, that the said Atkins R. Dalby should be re-examined in person, in regard to such matters as the jury desired to enquire of him.Whereupon the said Dalby was called and re-examined by the jury and the court.

In the progress of the cause, the Commonwealth proposed to introduce the dying declarations of the deceased; which were objected to by the prisoner; but admitted by the court; and the prisoner excepted.It appears from the record that the testimony was taken down at length under the supervision of the judge, and is given in full in the exception.The only question was, whether the deceased had given up all hope of living when the declarations were made.He received the wound which caused his death, on the 26th of January, and died on the 28th.The physicians who dressed the wound had no hope of his recovery, though another, who was called in to see him did have at first some hope.One of them says:--I heard Mr Bruce at no time express any hope of recovery.He was preparing for, and apprehensive of, death all the time.He frequently so expressed himself.Another of the physicians says:--Mr.Bruce was under the impression he would die; and was so impressed all the time.And also another physician who said he manifestly thought he would die from his wound.Witness often heard him express himself, and never heard him express a different opinion.They all testify to his frequently repeating the expression, " what a horrid death."It was in proof, too, that he made his will; and he requested one of the witnesses to take an interest in his former servants, and said he had left them a homestead for each family.These conversations, however, referred to by the witnesses, were on the day he received the wound.Another witness stated that he sat up with the deceased the last night of his illness, from a quarter to twelve o'clock till daylight.The deceased was asleep when the witness went in.When he awoke, the witness said to him, " Old man you have had a very good nap."He said " yes; " " who knows but I may get well."

Dr. A. S. Dillon, a witness introduced by the prisoner, stated that he called on the deceased the morning after he received his wound.In reply to some enquiries made of him by the deceased, the witness made some remarks touching the character of his wound, and endeavored to speak cheeringly to him.Just about then, very unexpectedly to the witness, he made a remark, in which were these words:--" I did not know he had cut me," and had coupled with these words the word " when," or " where."Witness was more inclined to think he said " " when."Thus:--" I did not know when he had cut me."With some earnestness witness interposed and stopped him, and told deceased he did not expect or wish him to make any statement to witness.Witness inferred from his manner, that deceased intended to give him a statement of the affair; and witness did not wish to hear it.Witness thinks he had given a complete sentence.The attorney for the Commonwealth moved the court to exclude the further testimony of the witness, on the ground that the deceased had not made to the witness a complete statement; which motion the court sustained, and would not permit the witness to testify further, and excluded the testimony above stated.To which opinion of the court the prisoner excepted.

After the jury had retired to consider of their verdict, they returned into court; and one of them stated, that he wished the instructions of the court as to the law of self-defence.Whereupon the court proceeded to give in writing instructions to the jury, as follows: " To avail of the doctrine of self-defence, a man must not have provoked a quarrel; and must have avoided a collision with his adversary so far as he could do so without putting his own life in extreme peril.But when he could, without such danger to his own person, withdraw from the conflict, to kill his adversary is not a just exercise of the right of self-defence."To which ruling of the court the prisoner again excepted.

The statement of the reading of a part of the evidence of the witness Dalby, in the absence of the prisoner, is given in the record as immediately preceding the application of the juror mentioned in the last exception; and may have been intended to constitute a part of the statement included in that exception, but it is not contained in the bill of exception, and is not expressly excepted to; but it is given as a part of the record.

The jury found the prisoner guilty of murder in the second degree; and fixed the term of his imprisonment in the penitentiary at five years; and he was sentenced accordingly.

There was a motion for a new trial, which was overruled; and the prisoner excepted; but it is unnecessary to notice it further.The prisoner applied to this court for a writ of error, which was awarded.

Berkeley, for the prisoner:

1st.Upon the question of the effect of reading the evidence of the witness Dalby in the absence of the prisoner, referred to Sperry's case,9 Leigh 623;Hooker's case,13 Gratt. 763;Wade's case, 12 GeorgiaR. 25;Witt's case,5 Coldw. R. 18;Scagg's case, 8 Smeedes & Marsh.R. 722;Bennett & Head's Lead.Cas. 451, edi.1857.And he insisted that it was not a question whether the prisoner had suffered harm by the reading of the testimony; but it is enough that harm might have been done.Lithgow's case,2 Va. Cas. 297;Wormley's case,8 Gratt. 712;Whitfield'scase, supra;Wash's case,16 Gratt. 530.And he insisted further, that the counsel could not consent so as to bind the prisoner.

2d.Upon the law of self-defence he insisted:--That the construction of the court, confining the right to a case in which the accused has not provoked the quarrel, and where there is extreme peril of life, was erroneous.That where the accused has provoked the quarrel, if he afterwards seeks to decline the fight, and is too fiercely set upon to retreat with safety, he may kill his assailant.Hale's P. C. 479;Appendix to Wharton on Homicide, p. 451.That to justify the taking life there need be only reasonable fear of great bodily harm.1 Arch. Cr. Pr. and Pl. 223, 793, edi.1860; Wharton on Homicide 216, 217, 223, 229, 1026-1028; Appendix 456;Chorler v. People,2 Comst. R. 193;Id. 643, 659;Rex v. Fagent,7 Car. & Payne 238.

3d.That the deceased must have no hope of living in order to the admission of his statements as evidence.Dunn v. State,2 Ark. R. 229;1 Greenl. Evi. 184, § 156, note 1; 2 Russell on Crimes 755;Rex v. Fagent,7 Car. & Payne238, 39 Eng. C. L. R. 701;State v. Center,35 Verm. R. 378;Wharton's Amer. Cr. Law, § 672.

4th.That the evidence of Dillon should have been admitted.

5th.The prisoner should have pleaded in the County court, before he was sent to the Circuit court.

The Attorney General, for the Commonwealth.It is submitted on the part of the Commonwealth, that there is no sufficient error assigned by the prisoner to justify this court in setting aside the judgment of the court below.

The last error assigned by the prisoner will be the first noticed by the Commonwealth, for the reason that, if this error be sustained by the Court of Appeals, it will be unnecessary to examine any of the other errors assigned.This error strikes at once at the jurisdiction of the Circuit court; and it is claimed for the accused, that, under the provisions of the act of the general assembly of 1866-7, chap. 208, p. 931 " that trials for felony shall be in the County courts, & c., except that a person indicted for an offence punishable with death, ‘ may, upon his arraignment, demand to be tried in the Circuit court,’ & c.; and that upon this demand, the prisoner shall be remanded for trial in the Circuit court; " and that although the prisoner upon his arraignment...