Kibler v. Commonwealth

• Decision Date: 25 March 1897
• Citation: 94 Va. 804,26 S.E. 858
• Parties: KIBLER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

26 S.E. 858

94 Va. 804

KIBLER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 25, 1897.

Homicide—Indictment—Evidence—Instructions —Criminal Law—Right to Speedy Trial— Presence of Accused—Appeal—Review.

1. An indictment which charges that the murder was committed with a gun, which defendant feloniously, willfully, and with malice aforethought did discharge and shoot off against and upon K., inflicting a mortal wound, of which he then and there died, is good.

2. A count which charges that the killing was done with an ax, feloniously, willfully,

with malice aforethought, is sufficient.

3. A count which charges that the killing was done with a knife, by cutting the throat of K., feloniously, willfully, and with malice aforethought, is good.

4. A common-law indictment for murder will support a verdict of murder in the first degree, though it does not charge specifically the ingredients of murder in the first degree, as distinguished from murder in the second degree.

5. Code, § 4047, as amended by Acts Assem. 1893-94, requires one indicted for felony, and held for trial in the county court, to be discharged, if there be four terms after he is so held without a trial, unless, etc. Held, that the term at which the indictment is found is not to be counted.

6. A term should not be counted at which the case was continued by agreement of counsel, and because the commonwealth's attorney was engaged in public service as a member of the general assembly then in session.

7. A trial for felony may be continued without the accused being present in court, before arraignment.

8. Where the answer to a question propounded for the purpose of laying the foundation for impeaching the witness is in itself admissible as evidence, it cannot be stricken out because the person named in the question was not called to impeach such witness.

9. Exceptions to rulings on evidence will not be considered, unless a formal bill is taken, and so framed as to point out the particular error complained of.

10. Where accused was a member of deceased's family, and there was evidence that deceased's pocketbook was in defendant's possession soon after the murder, it was error to charge that possession of the fruits of crime recently after its commission affords a strong and reasonable ground for the presumption that one having such possession was the real offender, unless he can account for such possession in some way consistently with his innocence, as invading the province of the jury.

11. The vice of such instruction was not cured by adding that in case of murder this particular fact of presumption commonly forms also a material element of evidence in connection with other facts proved.

Error to circuit court, Page county.

A. N. Kibler was convicted of murder in the first degree, and brings error. Reversed.

Marshall McCormiek and E. T. Broyles, for plaintiff in error.

R. S. Parks, Atty. Gen., for the Commonwealth.

KEITH. P. Kibler was indicted at the November term, 1895, of the county court of Page county, for the murder of his uncle, Willis D. Kibler. At the April term, 1896, he was tried, found guilty of murder in the first degree, and sentenced to be hanged. During the progress of his trial he took sundry exceptions to the ruling of the court, and presented a petition for a writ of error to the circuit court of Page county. The writ was granted, but the judgment of the county court was subsequently affirmed, and thereupon Kibler obtained a writ of error from one of the judges of this court.

The first question before us arises upon a demurrer to the indictment. We have examined the indictment, and each count thereof, and find it free from any ground of criticism.

The first count charges that the murderwas committed with a gun charged with gunpowder and shot, which it is alleged the plaintiff in error feloniously, willfully, and with malice aforethought did discharge and shoot off against and upon Willis D. Kibler, inflicting a mortal wound, of which he then and there died.

The second count charges that the killing was done with an ax, feloniously, willfully, and with malice aforethought; and,

The third count that it was done with a knife, by cutting the throat of Willis D. Kibler, feloniously, willfully, and with malice aforethought.

The indictment, and each count thereof, is in all respects not only substantially, but technically, correct, and the demurrer was properly overruled.

While upon the subject of the indictment, however, a point made by counsel for the prisoner, and relied upon in arrest of judgment, may with propriety be disposed of.

It is the common-law indictment for murder. It does not charge specially the ingredients of murder in the first degree, as distinguished from murder in the second degree, and the contention is that such an indictment will not support a verdict of murder in the first degree. This question was presented to the general court in the case of Com. v. Miller, reported in 1 Va. Cas. 310, and that court unanimously decided "that the indictment is not defective in not charging specially such facts as would show the offense to have been murder in the first degree." To the same effect, see Wicks v. Com., 2 Va. Cas. 387, and Livingston v. Com., 14 Grat. 596.

In the case of Thompson v. Com., 20 Grat. 730, the court says: "It is not necessary, in consequence of the statute defining the different degrees of murder, and subjecting them to different punishments, to alter the form of indictments for murder in any respect, nor to charge specially such facts as would show the offense to be murder in the first degree."

If, therefore, any proposition of law can be considered as settled by decision, and no longer open to debate, this is one of them.

The homicide was committed on the 5th day of November, 1895. The plaintiff in error was indicted at the succeeding November, 1895, term, and was taken to the adjoining county of Warren, and there confined in jail. At the December and January terms the case was continued upon the motion of the attorney for the commonwealth. At the February term the following order was entered:

"By agreement of counsel, this case is continued to the March term, 1896, of this court, the commonwealth's attorney of Page county being absent, and engaged in public service in the general assembly of Virginia, now in session."

At the March term the following order was entered: "This cause is continued until the 5th day of May, 1896 (it being the eighth day of next term of the court for the commonwealth), the attorney for the commonwealth being physically unable to proceed with the case, and six witnesses who have been summoned for the prosecution failing to appear, and the importance of five of them being known to the commonwealth's attorney, as stated by him in open court."

It thus appears that there were five continuances, and the prisoner, when led to the bar upon the day set for his trial, demanded his discharge, because four terms of the county court had passed since he was indicted and held for trial.

Section 4047 of the Code, as amended by Acts of Assembly 1893-94, provides that "Every person against whom an indictment is found charging a felony, and held in any court for trial, shall be forever discharged from prosecution for the offense if there be three regular terms of the circuit, or four of the county, corporation or hustings courts, in which the case is pending, after he is so held without a trial, unless the failure to try him was caused by his insanity or by the witnesses for the commonwealth being enticed or kept away, or prevented from attending by sickness or inevitable accident, or by continuance granted on the motion of the accused, or by reason of his escaping from jail or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict, or where there be no court held at the regular term, or where there...