Kirk v. Commonwealth

• Decision Date: 23 October 1947
• Citation: 186 Va. 839,44 S.E.2d 409
• Parties: KIRK. v. COMMONWEALTH.
• Court: Virginia Supreme Court

186 Va. 839

44 S.E.2d 409

KIRK.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 23, 1947.

Error to Circuit Court, Wise County; George Morton, Judge.

Harvey O. Kirk was convicted of involuntary manslaughter, and he brings error. Reversed and remanded.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.

Vernoy B. Tate, of Wise, for plaintiff in error.

Abram P. Staples, Atty. Gen., M. Ray Doubles, Asst. Atty. Gen., and Ballard Baker, of Richmond, for the Commonwealth.

BUCHANAN, Justice.¹

Kirk was indicted, along with three others, for the murder of his wife, Anna Kirk, whose death was caused by the bite of a snake alleged to have been held by Kirk during a church ceremony. He elected to be tried separately, was convicted by a jury of involuntary manslaughter and accordingly sentenced to two years in the penitentiary.

On this writ of error granted to that judgment, he has made 21 assignments of error, which may be gathered into three main contentions: (1) That the verdict was contrary to the evidence; (2) that the court erred in giving and refusing instructions, mainly as to the crime of involuntary manslaughter; and (3) because some members of the jury were prejudiced against the defendant because of his religious belief.

The defendant was a preacher of a sect known as the Christian Church of God. His wife was also a member and a licensed preacher of the same church. As part of their religious ceremony they, and some members of the church, frequently handled poisonous snakes, supposedly as a test of faith, in the belief or on the theory that if the faith of the handler was adequate the snake would not bite him, or if it did, its bite would do no serious harm.

The indictment was in the short form for murder, authorized by section 4865 of the Code, as amended by Acts 1930, c. 238, but the Commonwealth furnished a bill of particulars setting forth the facts it expected to prove, and alleging in substance that the defendants committed murder by bringing a poisonous rattlesnake into the church and handing it to Mrs. Kirk with intent to kill her; or, having brought it into the church where there was a large crowd of people, the defendants were grossly negligent in handling it, and permitted it to bite Mrs. Kirk, causing her death. One of the errors assigned is that the court should have required the Commonwealth to furnish a more specific bill of particulars, but there is no merit in this assignment. The bill apprised the defendant of the details of the Commonwealth's case, and that it would ask a conviction for murder or manslaughter as the evidence justified. This the Code, section 4920, permits. The evidence supported no theory of murder and the instructions dealt only with involuntary man-slaughter, of which the defendant was convicted.

The tragedy occurred at an annual meeting of the church held at Ramsey in Wise county, which had begun on August 31, and continued through September 2, 1945. The Kirks did not attend on the first night. One of Kirk's defenses was that he had nothing to do with calling or holding this meeting, but had called one for a different time and had not been consulted about the change, was not on the program and was no more than a visitor on the night of the trouble. However, he and his wife were present on Saturday night, September 1.

The room in which the meeting was held was 50' x 24' and fitted with benches. At the rear was a platform about 12 inches high, six feet deep and the same width as the church, at the front of which was a pulpit, and at the back of which were benches or seats, and on its left side facing the audience was a piano. Between the pulpit and the front benches was a space 12 or 13 feet wide in which the snakes were handled.

On this night the church was crowded and a number of people were seated on the platform, including Kirk and his wife, who sat near the piano about five feet back of the pulpit. They do not allow people up there "who are not in the faith, " said one of the preachers.

After the preaching was over, one of the preachers announced there would be a "demonstration, " or snake-handling service in front of the platform, and those who did not believe were told to stay back out of that space. The men who handled the snakes, which were about five in number and had been brought into the church in a box, put them down at the altar rail and those who were going to handle them were supposed to do so in front of the altar. "I never know who is going to handle them until they handle them, " explained the preacher. The "demonstration" then began, consisting, apparently, of singing, shouting and handling the snakes.

As soon as the announcement was made about the snake-handling ceremony, Kirk went forward to the pulpit and stood there on its left with his right arm resting on it and one foot on the rail running around the edge of the platform. While he stood there, one of the men jointly indicted with him presented a rattlesnake to him and he took it in his hands, with his left hand close to its head. About that time his wife came forward towards the snake. As a Commonwealth witness described it, she "raised up shouting and she come shouting up toward him, " and "she shouted right up to his left and she stood there shouting with her hands over this snake like that (indicating) and he held the snake--I couldn't tell when she was bit, anyway, he held it a few minutes (and) he let the snake go."

Mrs. Kirk was bitten by the snake three times, and as a result she died about four-thirty o'clock the following Monday afternoon, September 3. She declined medical aid, so her husband said. A doctor was called early Sunday morning, but to attend her for a miscarriage. She was five or six months pregnant and there was a premature birth, caused, the doctor said, by the snake bites. It was then too late to do anything for the snake bites, as he testified.

An additional tragic feature of the matter was that Mrs. Kirk was mentally ill. At the instance of the defendant she had been committed three times to the asylum at Marion. Her trouble was dementia præcox, 3 catatonic type. After each commitment she had been paroled to her husband against the advice of the hospital authorities. She was released to him May 23, 1944, on his signing a statement to the effect that he was taking her out against medical advice and assumed responsibility therefor. Her last release to him was in January preceding her death in September. A Commonwealth witness said she was like a child.

There was a sharp conflict in the evidence as to the reason for Kirk's having possession of the snake and the time he held it. The evidence for the Commonwealth was to the effect that he was a willing recipient and held it for a time variously stated to be from a few seconds to ten minutes; that he could hear his wife shouting and knew she was approaching; and, in fact, looked at her and smiled before she patted the head of the snake, and that she stood beside him an appreciable timegesturing and shouting over the snake before she was bitten.

There was evidence by and for the defendant that the snake was forced upon him and he took it involuntarily; that he held it only momentarily and disposed of it as soon as he could think what to do with it; that he did not see his wife coming up and did not know it was she gesturing over the snake's head, nor did he know she had been bitten until somebody told him afterwards.

The evidence thus presented a question for the jury, and in reaching their decision on the conflict it was, of course, important that they should be accurately and adequately instructed on the law of manslaughter. We do not think they were, and for that reason a more detailed discussion of the evidence and its weight is not appropriate.

The court properly instructed the jury that "while the law cannot interfere with a person's religious belief or opinion, this is no excuse for an illegal act made criminal by the law of the land, even though such act is based on conscientious religious belief."

As said by Chief Justice Waite in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, 250: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. * * * Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and...