Little v. Commonwealth

• Decision Date: 05 November 1874
• Parties: LITTLE v. COMMONWEALTH.
• Court: Virginia Supreme Court

66 Va. 921

LITTLE v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 5, 1874

1. A person called as a juror in a trial for murder, says in answer to a question--I have expressed an opinion from what I have heard. What I have heard was not from any witness. My opinion was not a fixed one. I think I can give the prisoner a fair trial without reference to the opinion I have expressed. He is a competent juror.

2. On the trial of a prisoner for murder, a statement made by him to a person, in a few minutes after the homicide was committed, and near to the place, and in the presence and hearing of eye witnesses of the homicide, who were not introduced as witnesses by the commonwealth, should be admitted as evidence at the instance of the prisoner, as part of the res gestæ .

3. At least the statement should have been heard by the court below, so that the court might determine whether all or any part of it was admissible evidence, and that the appellate court might revise the judgment in that respect.

4. After a witness for the commonwealth has given his testimony and left the stand, if the prisoner wishes to show that he has made a different statement at another time, he is entitled to have him recalled, and to examine him on the point, that the evidence in contradiction may be introduced and this whether the failure to examine him when he was on the stand, was because he or his counsel were not informed of the evidence to contradict him, or from inadvertence.

5. Upon a criminal trial, the prisoner may prove, by a person who was present, that a statement made before the grand jury by a witness for the commonwealth, was altogether different from that made by him on the trial; and quæ re, if a grand juror is not a competent witness to prove it.

6. A witness for the commonwealth is asked if he had said on last Wednesday in the front porch of the courthouse, in conversation with gentlemen, whose names were not known " If I had my way I would kill the damned rascals " referring to the prisoners. And he denies it. The prisoner will be allowed to prove that the witness used the expression; though the names of the two gentlemen to whom it was spoken cannot be given.

In July 1873, Lycurgus Little and Oscar P. Little were jointly indicted in the County court of Clarke county for the murder of their brother Clinton L. Little. The prisoners pleaded " not guilty," and elected to be tried separately and to be tried in the Circuit court of the county.

In October 1873, the case of Lycurgus Little was taken up for trial; and on the empannelling of the jury, the prisoner objected to William A. Riely's forming one of the panel. The ground of his objection was based upon his answer to a question put to him by the court as follows: " Have you made or expressed a fixed opinion as to the guilt or innocence of the prisoner at the bar?" Answer. " I have expressed an opinion from what I have heard; what I have heard was not from any witness. My opinion was not a fixed one. I think I can give the prisoner a fair trial, without reference to the opinion I have expressed." The court overruled the objection; and the prisoner excepted.

There were several exceptions to rulings of the court taken by the prisoner in the progress of the trial, and these are set out in the opinion of the court delivered by Judge Moncure.

The jury found the prisoner guilty of murder in the second degree, and fixed the term of his imprisonment in the penitentiary at fourteen years; and the court sentenced him accordingly. And the prisoner thereupon applied to a judge of this court for a writ of error and supersedeas; which was allowed.

Conrad & Son, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

MONCURE, P.

This is a writ of error to a judgment of the Circuit court of Clarke county, convicting Lycurgus Little of murder in the second degree, and sentencing him therefor to confinement in the penitentiary for the term of fourteen years, the period by the jurors in their verdict ascertained. There are seven assignments of error in the judgment, which arise on as many bills of exceptions taken to opinions of the court given during the progress of the trial. We will consider the questions thus presented for the decision of this court, or such of them as it may be necessary for us to decide, or as we may think it proper to decide, in the order in which they arise on the bills of exceptions.

1. The first bill of exceptions was taken by the prisoner to the action and ruling of the court in overruling his objection to William A. Riely as a competent juror for his trial. It is very clear that the objection was invalid, and the juror was competent, and that there was no error of the court in this respect. Jackson's case, 23 Gratt. pp. 919, 927-933, and the cases there cited. Indeed, this objection, though taken in the court below, does not seem to be relied on in this court.

2. The second bill of exceptions was taken by the prisoner to the ruling of the court in excluding, as incompetent evidence, a statement of the prisoner, made to Miss Hattie Prichard, a witness introduced by the commonwealth; the prisoner, by his counsel, contending that the statement was admissible as part of the res gestæ .

The surrounding circumstances of a fact in controversy are generally admissible evidence as reasonably tending to explain the nature of such fact, even though such circumstances consist of mere declarations, and be of the character of hearsay evidence. " These surrounding circumstances," says Greenleaf, " constituting parts of the res gestæ , may always be shown to the jury along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The principal points of attention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character. Thus, on the trial of Lord George Gordon for treason, the cry of the mob who accompanied the prisoner on his enterprise was received in evidence as forming part of the res gestæ , and showing the character of the principal fact." 1 Greenl. on Ev., § 108.

Now let us apply the principle as thus laid down to this case, which is thus stated in the second bill of exceptions. The commonwealth proved that Clinton Little came to his death by a wound received in the basement of the house, and that the door leading to said basement entered upon the south side of the house, under a porch; and introduced a witness, Miss Hattie Prichard, who testified that on the morning of the 5th of July 1873, after having breakfasted at the usual hour, she, in company with Amanda, the sister of the deceased, and Miss Villary, had gone to an apple tree in the garden, not a great distance from the house; it was the first tree in the garden; that there was a fence between the yard and garden; that she remained but a short time at the tree-- about five minutes--likely not that long; whilst there she heard shots fired; it seemed as if only one shot; from the sound it must have been from the basement; when she heard the sound she came to the house; the ice house obstructed the view; " when I got to the yard I saw Columbus and Gilbert Little in the south porch, that looks towards the stable; I call it the back porch; I saw Oscar Little and the prisoner at the bar in a slow walk, not in a run, going towards the stable; in a minute, in a second, they came back; " " I do not know what caused them to return; Columbus and Gilbert were walking around carelessly; Columbus had a pistol in each hand; Gilbert had a gun; don't know what sort; they had left the porch; when the prisoner and Oscar came back, Oscar was wounded; he was limping, which I then first observed; the prisoner told me when I met them" -- The attorney for the commonwealth, at this point in the evidence of the witness, objected to her repeating the statement of the prisoner then made. The prisoner, by his counsel, moved the court that the witness be allowed to repeat the statement as part of the res gestæ , but the court overruled said motion, and excluded said statement.

We think that the court erred in refusing to permit the witness to state what was said by the prisoner on the occasion referred to. What was so said might well have been, in whole or in part, admissible evidence, either for or against the prisoner. It was very closely connected, both in time and place, with the homicide, which was the subject of the prosecution, and might well have tended to elucidate that fact as part of the res gestæ . It was said when the deceased was lying close by, in a dying state, from the effect of the wounds he had received, and in the presence, and it seems the hearing, of Columbus and Gilbert Little, the former of whom had a pistol in each hand and the latter a gun in his hand, and also in the presence and hearing of Oscar Little, who was also wounded. It is not probable that the prisoner had either time or motive to fabricate a statement under such circumstances. There were present on that occasion those who were eye-witnesses to the homicide, and who could disprove any misstatement which the prisoner might have made in regard to it. As the commonwealth did not, as she might have done, produce those eye-witnesses to teatify upon the trial, it seems to be more reasonable on that account, that the statement made by the prisoner at the time of the transaction should not be excluded. At all events, that...