Jarrell v. Commonwealth

• Decision Date: 10 January 1922
• Parties: JARRELL . v. COMMONWEALTH.
• Court: Virginia Supreme Court

110 S.E. 430

JARRELL .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan 10, 1922.

Burks, J., dissenting.

Error to Circuit Court, Madison County.

Herman Jarrell was convicted of murder in the second degree, and brings error. Affirmed.

There was a trial by jury, and the accused, the plaintiff in error in this case, was found guilty of murder in the second degree, as charged in the first count of the indictment, the verdict fixing his punishment at 15 years in the penitentiary. The judgment under review was entered accordingly.

The indictment in its charge of the murder was in the common-law form for murder, not expressly charging murder in the first degree. The first count of the indictment, under which the accused was tried and convicted, as aforesaid, jointly indicts the accused and two others, Lester Lamb and J. N. Kirtley, with the crime aforesaid, charging the crime as having been committed by them jointly as principals in the first degree, by making an assault, in which they threw a certain rock "in their hands then and there had and held, in, against, and upon the forehead" of the deceased, one J. A. McDaniel, giving the latter the mortal wound of which, in a few hours thereafter, he died. There was one other count in the indictment jointly indicting the same three parties withthe same offense, and two other lounts indicting the accused with the same offense, charged as having been committed in practically the same manner by the accused alone; but on motion of the accused the commonwealth was required to elect on which count it would prosecute and elected to prosecute and did prosecute the accused under the first count aforesaid.

The material facts as the jury were warranted in finding them, and certain testimony which the trial court allowed to go to the jury over the objection of the accused, needful to be here mentioned, may be stated as follows:

The homicide occurred about midnight Christmas Eve, December 24, 1920. On that night, which was a moonlight night, the deceased, along with one C. B. Jarrell and a number of neighbors, playing the violin and having a "Christmas Eve time, " came with C. B. Jarrell to his home, arriving about 9 or 10 o'clock, to give a serenade there, and some of the party expected to go on with the serenade at other homes in the vicinity, although C. B. Jarrell did not intend to go any further than to his own home. They found there the accused, a nephew of C. B. Jarrell, J. N. Kirtley, a family connection of his, and Lester Lamb, who lived at C. B. Jarrell's as his home when not away at work, and also other members of the family of C. B. Jarrell and several others. There was music for a while, and dancing, after which several of the young men, some five or more, set out to go to the home of a neighbor. As these young men were going up a hill near C. B. Jarrell's residence they were shooting fire crackers and became quite boisterous. On hearing this the deceased and C. B. Jarrell walked up on the hill where the young men were. Soon after getting there the deceased and C. B. Jarrell got into a fight, which resulted in the deceased hitting Jarrell on the head with a rock, giving him quite a severe wound, which bled profusely. Thereupon Jarrell returned to his house, coming to his front gate, as his wife testifies, "with his coat '* * * all bloody; talked as if he did not know what he was talking about, * * * feeling his way along; we went to meet him; he was blind." At this time J. P. Thomas came up, and said that the deceased had hit Jarrell.

The accused, Kirtley, and Lamb were not among those present when the fight occurred between the deceased and C. B. Jarrell, but the accused and the two jointly indicted with him were at the house when C. B. Jarrell arrived after being wounded, as aforesaid, and either saw or were informed of his wounded condition. Whereupon they severally set out for the hill, and before arriving there all three of them were told that the deceased was the man who wounded Jarrell. Thereupon, on their arrival on the hill, they got together, and together approached and at tacked the deceased, in retaliation, as the jury were warranted in inferring, for his having wounded Jarrell, as aforesaid. Others took part in the affray, and there was for a time a promiscuous fight with rocks and wrestling, in the midst of which the accused threw the rock at deceased which struck him on the head, causing the mortal wound alleged in the indictment, and then jumped on the deceased, and was pulled off by one of the participants in the affray.

The testimony which the trial court allowed to go to the jury over the objection of the accused was the following: J. P. Thomas, a witness for the commonwealth, testified that as witness came down the hill' following C. B. Jarrell, after the latter had been wounded, as aforesaid, witness met Lamb, Kirtley, and the accused, in the order named, going up on the hill. That Lamb asked witness: "Who hit Uncle Charlie?" meaning C. B. Jarrell. That witness replied that he thought the deceased hit him, whereupon Lamb said: "I will knock him in the head." That Lamb passed witness and called back for the accused. That the accused said: "What do you want?" That Lamb said: "Come up here right quick." That witness next met Kirtley, who asked: "Who hit C. B. Jarrell?" That witness replied that the deceased hit him, he thought. That Kirtley said: "That is all right; I will kill the damn rascal that did it." That witness next met Jesse Jarrell, who said nothing, and then met the deceased, who said nothing. That the accused was not present when Lamb and Kirtley made the statements aforesaid. On cross-examination, J. P. Thomas testified that Harry Jarrell, at some time not fixed by the witness, when the accused was not present, said "This is a hell of a bad thing for nothing."

In testifying concerning the wounding of C. B. Jarrell by the deceased, one of the witnesses stated that the deceased said, after the fight with C. B. Jarrell, "If I run now, will always have to run." The accused objected to the admission of this in evidence, but the court overruled the objection.

Other pertinent matters are referred to in the opinion of the court.

Will A. Cook, of Madison, for plaintiff in error.

John R. Saunders, Atty. Gen., and J. D. Hank, Jr., Asst. Atty. Gen., for the Commonwealth.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The questions raised by the assignments of error will be disposed of in their order as stated below.

1. The first assignment of error is that the court erred in refusing to quash the indictment because it was in the common-lawform of an Indictment for murder, and did not expressly charge murder in the first degree.

We find no merit in this assignment of error.

Although a number of courts of other jurisdictions are not in accord with the Virginia court on this subject, and so eminent an authority as Mr. Bishop (2 Bish. New Cr. Prac. [4th Ed.] §§ 566-587) takes a view contrary to the holding in Virginia with respect thereto, the rule has been for so long and so firmly established in this jurisdiction that an indictment for murder in the common-law form is good as an indictment for murder in the first degree that we are unwilling to change that rufe. Miller's Case, 1 Va. Cas. (3 Va.) 310; Wick's Case, 2 Va. Cas. (4 Va.) 387; Livingston's Case, 55 Va. (14 Grat.) 595; Cluverius' Case, 81 Va. 787; Kibler's Case, 94 Va. 804, 26 S. E. 858; Thurman's Case, 107 Va. 912, 60 S. E. 99. Moreover, the accused in the case at bar was not convicted of murder in the first degree, but only of murder in the second degree. Under the ruling of all of the courts, the indictment was good as an indictment for murder in the second degree. Hence, according to all of the authorities, the indictment is sufficient to sustain the verdict and judgment under review.

2. The second assignment of error is that the court erred in not requiring the commonwealth to file a bill of particulars, because "the wording of the first count of the indictment under which he (the accused) was tried made it proper that a bill of particulars should have been filed, so as to put him in a fair position to defend himself."

We find no merit in this assignment.

It is true that in Pine v. Commonwealth, 121 Va. 812, 836-838, 93 S. E. 652, It is held that the accused has the right to hive the commonwealth file a bill of particulars in certain cases, but this right does not arise in all criminal cases. As there held, it arises only in those cases in which such a bill is necessary to "supply the fault of generality or uncertainty" in the averments of the indictment drawn in question, in stating the cause and nature of the accusation. In the case at bar there is no fault of generality or uncertainty of this character in the averments in the first count of the indictment, which alone is drawn in question by the assignment of error under consideration. This count expressly and distinctly charges the accused with a single act, namely, the throwing of the rock which gave the mortal wound, as a principal in the first degree, and it joins as defendants in the same count two others as participants in the alleged crime, who are also charged with the same act as principals in the first degree. The accused was tried upon this count and convicted.

It is urged in argument for the accused, to sustain the assignment of error under consideration, that the accused is charged in the first count jointly with others with doing an act (the throwing of the rock) which it was physically possible only for one of them to have done; hence this count in fact charges the accused with two offenses, that of committing the crime as principal in the first degree, and that of committing it as an accessory by aiding and abetting its commission. It is true that these two offenses are charged. But that is permissible in such a case, and it has been too long and too well...