Kirby v. Commonwealth

• Decision Date: 13 September 1883
• Citation: 77 Va. 681
• Parties: KIRBY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

77 Va. 681

KIRBY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

September 13, 1883

1. CRIMINAL PRACTICE-- Evidence--Res gestæ .

The admissibility of declarations of the injured party as part of the res gestæ , depends on whether or not they were made recently after the injury, before sufficient time had elapsed for the fabrication of a story.

2. IDEM-- Idem--Examination of accused.

Code 1873, chapter 195, section twenty-two, provides that " in a criminal prosecution, other than for perjury, or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination." Therefore, evidence that the statements of witnesses for the accused conflict with the testimony of the accused as delivered on his examination as a witness at a former trial, is inadmissible.

3. IDEM-- Idem--Idem--Case at bar.

In M.'s store, at night, a man entered, and suddenly, without apparent provocation, shot M. through the head. M. exclaiming, " You have killed me," ran out at the door, around the house, to the door of another room in the same house, occupied by R., which door was eighty feet from the point in the store at which he was shot. Upon being admitted he said: " I am shot; William Kirby has shot me." Not more than two minutes elapsed between the shooting and this declaration. At a former trial accused testified as a witness in his own defence. At the succeeding trial he did not. Evidence was introduced by the commonwealth to prove that statements made at this trial by witnesses for the defence were in conflict with the testimony of the accused at the former trial.

HELD:

1. The declarations of the injured party were admissible as evidence as part of the res gestæ . Under the circumstances, it is unreasonable to suppose that there was time or capacity to fabricate a story.

2. The evidence to prove conflict between the testimony of accused at the former trial, and the statements of witnesses for the defence at the last trial being objected to, was inadmissible.

Error to judgment of circuit court of Albemarle county, rendered 1st February, 1883, affirming judgment of county court of said county, sentencing William Kirby, the plaintiff in error, to confinement in the state penitentiary for the term of ten years; said Kirby having been found guilty upon an indictment for maliciously shooting, with intent to kill, one Stephen D. Mayo.

The facts and points raised are fully stated in the opinion of the court.

Frank Gilmer, and James L. Gordon, for the prisoner.

Exception number one is taken upon the admissibility of the testimony of one Truman Richardson, as to what Stephen D. Mayo said to him as to who shot him (Mayo) on the night in which he was shot, after putting his hand to his head and saying, " Oh my, you have killed me," walking eighty feet out of a dark room from where he was shot, around to Richardson's room, knocking several times at the door of Richardson's room, calling to Richardson, and Richardson had finished putting on his pants, asked who was there, and being told, opened the door, let him in and asked who shot him. No one save Mayo and Richardson were present during this conversation. All of this took place in a minute or a minute and a half after the shooting, as near as Mayo could judge, and not in the presence of the accused.

1st. It is not a part of the res gestæ . What constitutes a part of the res gestæ is a question long supposed to be governed by no fixed rules of law, but left to the sound discretion of the court in each case; but that view of deciding what is, and what is not a part of the res gestæ , is no longer the law, but is to be decided by fixed rules of law as other principles of evidence. Land & Wife v. The Inhabitants of Tyngsborough, 9 Cush. 36.

Facts which constitute the res gestæ must be such as are so connected with the very transaction or fact under investigation as to constitute a part of it. Declarations, to be a part of the res gestæ , must be made at the time the act is done, and must be calculated to unfold the nature of the act as obviously to constitute one act. 1 Greenl. Evi., 10th edi., sec. 108, n. 1, on page 2; Haynes v. The Commonwealth, 28 Gratt. 942.

The fact that Mayo had not time to concoct a story before he told Richardson who shot him, is not a test of what is the res gestæ . Some men can concoct a story under circumstances that other persons could not, and in a shorter interval of time. With such a test, what is a part of the res gestæ would be but mere speculation; hanging as it would on such a multitude of uncertainties.

" The case of Fields v. The State, reported in 34 American Law Reports, 476, and the authorities there cited, when interpreted in connection with Haynes' Case in 28th Grattan," do not sustain the reason given for overruling this exception. No such point was raised or appears to have been considered by this court in Haynes' Case; and in Fields' Case, only two cases are cited to sustain such a principle, Rex v. Foster, 6 C. & P. 325, and Insurance Co. v. Mosley, 8 Wall. 397. This last case was decided by a divided court, and the very court that decided the Fields' Case, says that " the opinion of the minority is the sounder opinion both upon principle and authority."

A witness cannot testify as to the name of a person from whom the person injured said that he received the injury, be the interval of time and length of distance ever so short and made to the first person met. Such evidence would be mere declarations, not a part of the res gestæ . 1 Greenl. Evi., 10th edi., sec. 102 and n. 3; Bacon v. The Inhabitants of Charlton, 7 Cush. 581; Land and wife v. The Inhabitants of Tyngsborough, 9 Cush. 36; The Commonwealth v. Harwood, 4 Gray 41; Haynes v. The Commonwealth, 28 Gratt. 942.

The above rule is enlarged in cases of rape only to permitting proof that the prosecutrix made a complaint of being outraged, but not the particulars nor the name of the person who committed the outrage on her. Broggie v. The Commonwealth, 10 Grat. 722.

The statement made by Mayo to Richardson was mere heresay or secondary evidence, intended to bolster up Mayo's statement.

Here the best evidence had been produced. A statement of the same facts as made by the witness Mayo, is proved by Richardson to have been made to him before the trial. Richardson's evidence in this cause is merely cumulative, and its only effect is to strengthen what Mayo has said on oath, by proving what Mayo said when he was not on oath. Which is clearly illegal. 1 Greenl. Evi., 10th ed., § 124, n. 1, American Crim Law; Wharton's notes, 4th Rev. ed., § 82; 1 Starkie on Ev., 7th Amer. ed., 221; 33 Wend. 50; Haynes v. The Commonwealth, 28 Grat. 942; Broggie v. The Commonwealth, 10 Grat. 822.

Exception number two was taken to the admission of the evidence of H. B. Burnley of what William Kirby testified to on a former trial, when he was introduced as a witness in his own behalf, and after Armstrong and Bagby had been introduced by the accused to prove where he, the said William Kirby, was on the night of the 3d of July, 1882, and the said Kirby had declined to testify in his own behalf on this trial. The evidence of H. B. Burnley, as to what the accused had stated as a witness in a former trial, was illegal and indismissible evidence.

Prior to the act of March 6th, 1882, the accused could not testify on a trial for malicious shooting with intent to maim, disfigure, disable and kill; but under that statute " the accused (when so indicted) may be sworn and examined as a witness in his own behalf." Acts of 1881-'82, chapter 228.

The law was not further extended as to evidence in criminal cases by this statute, than to extend the privilege to the accused to testify in his own behalf if he so desired; whilst the prosecution stood on no better ground than it did before its passage.

It was the well settled law of England long before the separation of the American colonies from the mother country, that no one could be compelled to give evidence that would criminate himself. As early as 1776, and at each subsequent constitutional convention of Virginia, it has been enacted that, nor can he be compelled to give evidence against himself. Virginia Constitution, Article 1, § 10.

This provision has been held to apply to cases where a witness who had testified before a coroner's jury under a statute that provided, " but any statement made by such person as such witness shall not be used against him in any prosecution against himself" --that said witness could not be compelled to testify. Cullen v. The Commonwealth, 24 Grat. 624.

William Kirby, when he testified on the former trial, was a witness upon a legal examination, although he testified in his own behalf. What he then said could not be proved by H. B. Burnley, who heard him testify; for the first trial was not for perjury or an action on a penal statute, which are the only two instances where statements of a witness in a legal examination are admissible in evidence in Virginia. Acts 1878-79, chapter 10, section 22, Rev. Crim. Code.

These counsel then proceeded to discuss their exception number three, as to the sufficiency of the evidence to warrant the verdict.

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

It is objected by the prisoner that the declarations of Mayo are not part of the res gestæ , but hearsay and secondary, and made in the absence of accused, William Kirby. This question this court is called on now to determine.

Mayo's declarations to Richardson, although made in the absence of his fugitive assailant, were so intimately and closely connected with the shooting, as to become a part and parcel of the very transaction itself,...