Lewis v. Commonwealth

• Decision Date: 24 April 1884
• Citation: 78 Va. 732
• Parties: LEWIS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

78 Va. 732

LEWIS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 24, 1884

Error to judgment of circuit court of Southampton county, rendered November 10, 1883, upon the verdict of the jury which found Salathiel Lewis, the plaintiff in error, guilty of murder in the second degree, and ascertained his term of imprisonment in the penitentiary at seventeen years, for the killing of John M. Newsome on the 21st day of May, 1883.

The opinion states the case.

Geo. D. Wise and C. H. Causey, for the plaintiff in error.

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

OPINION

FAUNTLEROY J.

Upon the trial of the cause, after all the evidence on the part of the Commonwealth, as well as of the accused, had been introduced and heard by the jury, the attorney for the Commonwealth asked and obtained from the court the following instructions--viz:

First. The court instructs the jury that, on a charge of murder malice is presumed from the fact of killing, unaccompanied with circumstances of extenuation; and the burden of disproving the malice is thrown upon the accused.

Second. That every man is presumed to intend the natural and probable consequences of his own acts.

Third. That on a trial for murder the necessity relied on to justify the killing must not arise out of the prisoner's own misconduct.

Fourth. The court instructs the jury that evidence of threats made by the deceased against the prisoner are to be received by them with great caution; and although such threats may be proved to have been made, it must be shown to the satisfaction of the jury that they were communicated to the prisoner prior to the killing, before they can be considered as affording any justification of the homicide.

To each and all of which sad instructions the accused, by his counsel, excepted, and moved the court to reject them; which motion the court overruled. We think the court did not err in giving the said instructions. They are plainly right in law, and adapted to the evidence in the cause.

The first instruction left to the jury the consideration of all and every circumstance of extenuation proven or offered for the accused in the evidence in the case, and all of the circumstances attending the homicide. Hill's Case, 2 Gratt. 599; Willis' Case, 32 Gratt. 932; Wright's Case, 75 Va. 914; Roscoe's Crim. Ev. 707, top, 5th Amer. Ed.; Russell on Crimes, 483; 9th Metcalf, 93; 3 Gray 463; Penn v. Bell, 1 Amer. Decis. 298; Davis' Crim. Law, 99.

The third instruction is fully supported by Vaiden's Case, 12 Gratt. 717.

The second and fourth instruction of the series given are not complained of, and they are plainly right.

But the record shows that after the attorney for the Commonwealth had made his opening argument to the jury, and the prisoner's counsel had concluded their argument, and in the closing argument of the attorney for the Commonwealth, he commented on the fourth instruction, and argued to the jury and maintained that the threats alluded to by the court, in its fourth instruction, were threats made to others, and by them communicated to the prisoner, and not to the threats made directly to the prisoner by the deceased;...