Kemp v. Commonwealth

• Decision Date: 16 April 1885
• Citation: 80 Va. 443
• Parties: KEMP v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

80 Va. 443

KEMP v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 16, 1885

Error to a judgment of the corporation court of the city of Norfolk, rendered against William A. Kemp, whereby he was sentenced to imprisonment in the state penitentiary for the period of five years for the murder in the second degree of one Junius A. Rogers.

The indictment was against Charles L. Whitehurst, William A. Kemp and James T. Guy, jointly, charging the first with murder in the first degree, and the other two with being present counseling, aiding, abetting and assisting the said Whitehurst in the commission of the crime. The prisoners elected to be tried separately. See Whitehurst's case, 79 Va. 556.

Kemp moved for a new trial on the ground that the verdict was contrary to the law and the evidence and that the court misdirected the jury. The court overruled the motion, and the prisoner obtained from one of the judges of this court a writ of error and supersedeas to the judgment.

Opinion states the case.

John Goode and Parker & Allen, for prisoner.

Attorney-General, F. S. Blair, for the commonwealth.

OPINION

RICHARDSON J.

On the 4th day of February, 1884, a special grand jury for the city of Norfolk found an indictment against Charles L. Whitehurst James T. Guy, and the plaintiff in error, William A. Kemp, for the murder of Junius A. Rogers, on the 20th day of January, 1884.

The indictment contains three counts, in each of which it is charged that the said Charles L. Whitehurst inflicted the mortal would, and that the said James T. Guy and the plaintiff in error, the said William A. Kemp, were present, counseling, aiding, abetting, and assisting the said Charles L. Whitehurst in the commission of the said murder. On the said indictment Whitehurst was, in the corporation court for the city of Norfolk, duly tried, convicted of murder in the second degree, and sentenced to confinement in the penitentiary for the term of twelve years, that being the period found by the jury which tried the case; which finding and sentence was subsequently, on writ of error, affirmed by this court. See Whitehurst v. Commonwealth, 79 Va. 556. Subsequently, to wit: on the 28th day of November, 1884, the plaintiff in error was, in said corporation court, separately tried, found by the jury guilty of murder in the second degree, the term of his imprisonment in the penitentiary fixed at five years, and was sentenced accordingly by said court. On a writ of error, awarded by one of the judges of this court, the case is here for review.

Upon the rendition of the verdict, the prisoner, by his counsel, moved the court to set aside the verdict, upon the grounds, (1) that the verdict was contrary to the law and the evidence, and (2) because of misdirection.

By two bills of exception, taken by the prisoner at the trial, the case is made fully to appear.

The first bill of exceptions is to the judgment of the court overruling the prisoner's motion to set aside the verdict and grant him a new trial. This bill of exceptions sets out all the evidence in the cause, as certified by the trial court, and will be first considered. There is really no conflict of evidence, and therefore it may be considered, practically, a certificate of facts proved.

There is really no material fact touching the conduct of the plaintiff in error on the occasion of the homicide in question, that is not minutely detailed in the evidence of Henry B. Reardon, the principal witness for the commonwealth; nor is there anything in all the evidence in conflict with his statement in any material particular, though the statements of other witnesses are, in some respects, much fuller. The substance of Reardon's statement is, that on the night of the 19th day of January, 1884, he and the deceased, Rogers, had been together playing pool and drinking beer, from about eight or nine o'clock until about twelve o'clock; that neither Rogers nor himself were affected by the beer they had drank, witness having taken some eight glasses; that they that night, later, visited several places, among them a house of ill-fame in said city, kept by Maud Earl, where they remained half-hour or more, when Rogers left, ahead of Reardon, and started down the street, and then Reardon went out, overtook Rogers, and went with him to another house of ill-fame, kept by Nannie Gale, on Cove street, where Rogers had an engagement to stay all night, and at or near the front door of this house, they found several persons, one of them being Wm. A. Kemp, the plaintiff in error here.

Just here let us drop, for the time being, Reardon's statement, to be resumed after tracing the party of which Kemp was one, to the same place, the house of Nannie Gale, in the back yard of which the unfortunate homicide occurred.

J. T. Murden, another witness for the commonwealth, says: " About 12 o'clock, Saturday night, January 19th, 1884, Kemp and I went to a barber shop, got shaved, and went to Nebeling's saloon, on Church street, to get a sandwich. While there we met Charles Whitehurst, the three Winslow boys, and James T. Guy. I drank with Guy. After awhile it was proposed to go down town. We went down Church street in twos, until near Cove street, where it crosses Church street, when some one in the crowd said, ‘ turn to the left.’ We went down Cove street toward Fenchurch, until we got to No. 121, where Nannie Gale keeps. When we got to Nannie Gale's, Charles L. Whitehurst went up in the porch and rang the door-bell. Some one responded, but I don't know what was said. Just then two men" (Reardon and Rogers) " came across the street and went up in the porch. They soon came down and went in the lane. They were followed by Charles Whitehurst, Kemp, Guy, and one of the three Winslow boys. I stood outside talking to one of the Winslows, and his brother, who had just gone up the lane, came back, when he and his brothers went home, at least they left, saying they were going home. Winslow was only in the lane a minute or so. Soon after Winslow came out, Guy came out, and said, ‘ I have received a hell of a blow in the eye.’ I asked Guy who struck him? He said Rogers. I asked him what for? He said he did not know. After talking about it for a few minutes, Guy said to me, come, let's go up and see what they are doing. I said, I won't do it, if there is going to be a row. Guy started up the lane, and when he had got a few feet up the lane, Charles Whitehurst came out in a great hurry, Kemp close behind him, and Guy immediately behind Kemp. I don't think Guy could have gotten more than one-third of the way up the lane before he met Whitehurst and Kemp coming out. Whitehurst came out hurriedly, Kemp following him. When they got to the head of the lane, heard Whitehurst say, ‘ I hit that fellow a hell of a blow with an axe.’ Whitehurst and Kemp then started up Cove street, and Guy and I followed them. When we overtook them on Fenchurch street, I said to Kemp, " why don't you go back and get your hat?' Whitehurst said, ‘ Murden, you don't know anything; I hit that man a hell of a crack on the head with an axe.’ We then went on, Kemp and Whitehurst in front, until we got to the corner of Fenchurch and Charlotte streets, when I said to Whitehurst, ‘ Charlie, you did not hit that man with an axe sure enough?’ Whitehurst said, ‘ yes, I did.’ I said, ‘ did you hit him hard?’ He said, ‘ to tell you the truth, I was so mad and excited, I don't know how hard I hit him, but I expect I cracked his skull.’ "

Now let us resume Reardon's statement where we left it off on his arrival at the house of Nannie Gale, in company with Rogers. Reardon does not state whether, when he and Rogers arrived in front of Nannie Gale's house, where they found the other party, that any recognition passed, or that a word was spoken by any one of either party. From his statement, it appears that Whitehurst, one of the party found there, was in the porch. Reardon and Rogers went into the porch, and Rogers either rang the bell or knocked, but failing to get in they came down from the porch and went up the lane to the back door, Rogers ahead, and Reardon next, followed by Whitehurst Guy and Kemp, and so Reardon thought, by a fourth one, part of the way up the lane. This was, doubtless, one of the Winslow boys, who went only a part of the way up the lane, as explained by the testimony of the witness, Murden. In the order named, these five persons entered the back yard to the house of Nannie Gale, and then into a narrow, dark alley or passage way between the kitchen and back door of said house, and some thirty feet long. Here, Reardon says: " When we reached the narrow passage way leading to the back door, Rogers said to the parties, ‘ You are not going in here; you did not come with us and you are not going in with us:’ after some other words, blows commenced near the back door. When the fuss began Rogers was on the steps. I saw all three men (Kemp, Guy and Whitehurst) strike out at Rogers, but cannot say if they hit him or not. I took no part in the scuffle in the passage way; was not struck, nor did I strike anyone. When we got back in the yard--Kemp, Guy and Whitehurst getting into the yard first-- I became immediately engaged in fight with Kemp. While thus engaged with Kemp, I saw Rogers, who stood near the end of the kitchen, apparently in a dazed condition. I felt surprised that Rogers did not come to my rescue, for I knew that he would fight. At the time I saw a man with uplifted arm, I heard a thud and Rogers fell, and immediately the man ran. I called for assistance, and Rogers was carried into the house. I did not think he was much hurt. I left him in charge of the inmates of the house, telling them if Rogers needed a physician to send for one. I was not armed...