Johnson v. Commonwealth

• Decision Date: 26 January 1911
• Citation: 69 S.E. 1104,111 Va. 877
• Parties: JOHNSON v. COMMONWEALTH.
• Court: Virginia Supreme Court

69 S.E. 1104

111 Va. 877

JOHNSON

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 26, 1911.

1. Homicide (§ 135^*) — Indictment—Sufficiency.

Under Code 1904, §§ 3999, 4000, providing that no indictment shall be quashed for enumerated defeats, and that a judgment after verdict shall not be arrested or reversed on exceptions to the indictment if the offense be charged therein with sufficient certainty for judgment to be given thereon, an indictment for murder of a child seven years old, which alleges that accused struck, kicked, and beat decedent, on the stomach and back, and that he struck, pushed, or knocked decedent down on the floor, and that while lying on the* floor he struck her on the stomach, back, legs, and hands, inflicting mortal wounds, sufficiently states the means whereby the life of decedent was extinguished.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 215-223; Dec. Dig. § 135.*]

2. Criminal Law (§ 700*)—Trial—Opening Statement of Prosecuting Attorney—Necessity.

Code 1904, § 4029a. authorizing counsel for the commonwealth and accused to make an opening statement of the case, confers the right to make an opening statement, but does not make it obligatory on either counsel to do so, and it is not error to refuse to compel the attorney for the commonwealth to make an opening statement.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1659; Dec. Dig. § 700.*]

3. Homicide (§ 338*)—Harmless Error—Erroneous Admission of Evidence.

On a trial of a teacher for the murder of a pupil by excessive punishment, the error in admitting irrelevant evidence that accused had. several months before the offense, whipped decedent and her brother, was not prejudicial to accused; it not appearing that the whipping on that occasion was excessive, or that accused exceeded his legal authority as a teacher.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 709-713; Dee. Dig. § 338.*]

4. Criminal Law (§ 472*) — Evidence — Expert Testimony—Admissibility.

Expert testimony is permissible wherever peculiar skill and judgment are necessary to elucidate a particular subject.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 472.*]

5. Criminal Law (§ 476*) — Evidence — Expert Testimony—Admissibility.

Where, on a trial for murder, a physician testified that on the post mortem examination of decedent he found her bladder in a ruptured condition, that the rupture was the cause of death, and that he found an abrasion of the skin on the abdomen in the region of the bladder, the court properly permitted him to give his opinion as an expert that the force which caused the abrasion caused the rupture.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. § 476.*]

6. Witnesses (§ 40*)—Competency—Age and Maturity—Discretion of Court.

An objection to the competency of a witness on the ground that his tender years make him incapable of understanding the obligation of an oath is addressed to the discretion of the court.

[Ed. Note.—For other cases, see Witnesses. Cent. Dig. §§ 97, 98; Dec. Dig. § 40.*]

7. Homicide (§ 254*)—Murder in the Second Degree—Evidence—Sufficiency.

Evidence held to justify a conviction of murder in the second degree.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 533-53S; Dec. Dig. § 254.*]

8. Criminal Law (§ 1159*) — Verdict—Conclusiveness.

A verdict in a criminal case which is based on evidence cannot be disturbed on writ of error.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083: Dec. Dig. § 1150.*]

Error to Circuit Court, Westmoreland County.

Robert Johnson was convicted of murder in the second degree, and he brings error. Affirmed.

R. O. Mayo and. Jos. W. Chinn, Jr., for plaintiff in error.

The Attorney General, for the Commonwealth.

HARRISON, J. In this case we are asked to review a judgment pronounced against the plaintiff in error, whereby he was sentenced, in accordance with the verdict of the jury, to confinement in the state penitentiary for the term of 18 years, for the murder of a child seven years of age.

Taking up the assignments of error in their order, we are of opinion that the demurrer to the indictment was properly overruled. The ground of this objection is that the indictment does not state the means whereby life was extinguished, or the character of the instrument, or weapon with which the homicide was committed.

The first count of the indictment charges that the prisoner did strike, kick, and beat the deceased, Mary Thompson, upon the belly, stomach, and back. The second count al-leges that the prisoner did strike, push, or knock the deceased down upon the floor, and that while lying upon the floor he, upon the stomach, belly, back, legs, and hands of her, the said Mary Thompson, did then and there strike, beat, and kick, giving to the said Mary Thompson several mortal wounds or one mortal wound. This sufficiently sets forth the means by which the life was extinguished and, upon proof of the offense charged, there is no difficulty in giving judgment according to the very right of the case. Code 1904, §§ 3999, 4000.

We are further of opinion that the circuit court did not err in refusing to compel the attorney for the commonwealth to make an opening statement of the case to the jury. There is no rule of law requiring this to be done. The statute confers the right to do so, but does not make it obligatory upon either party to make an opening statement. Code 1904, § 4029a.

We are further of opinion that the testimony admitted by the court, showing that the prisoner whipped the deceased and her brothers several months before the date of the crime charged, was immaterial and without prejudice to the accused. It does not appear that the whipping on the occasion mentioned was excessive, or that the plaintiff in error, in administering the punishment, exceeded, in any manner, his lawful authority as a teacher. The evidence was irrelevant and should, properly, have been excluded; but it is clear that the prisoner was not and could not have been injured by this allusion of the witness to a previous lawful act done by him.

We are further of opinion that the court did not err in admitting the testimony of Dr. Taylor. This witness was introduced as a medical expert. He testified that upon the post mortem examination of the deceased he found her bladder in a ruptured condition, and that in his opinion rupture of the bladder was the cause of her death. Witness further testified that he found an abrasion of the skin on the abdomen of the deceased over the region of the bladder, whereupon the witness was asked: "Was the force that caused the external abrasion, in your opinion, the same force that caused the rupture of the bladder?" Which question the witness answered as follows: "It is my opinion that the same force which caused the abrasion caused the rupture of the bladder."

This evidence was objected to on the ground that it was irrelevant, and because the witness was asked for an opinion which did not require the peculiar knowledge of an expert.

The subject of inquiry was one about which the medical expert could speak more advisedly than any other. Such evidence is permissible wherever peculiar skill and judgment is necessary to elucidate a particular subject. The post mortem had disclosed rupture of the bladder to be the cause of the death. This expert witness traces that result to a cause, saying that, in his opinion, the rupture of the bladder was produced by the same force which caused the abrasion on the abdomen. This evidence tended to throw light on the subject...