Litton v. Commonwealth

• Decision Date: 25 June 1903
• Citation: 44 S.E. 923,101 Va. 833
• Court: Virginia Supreme Court
• Parties: LITTON. v. COMMONWEALTH.

44 S.E. 923

101 Va. 833

LITTON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 25, 1903.

HOMICIDE—GRAND JURY—TRIAL, JURY—EVIDENCE—HARMLESS ERROR—ORDER OF INTRODUCTION—VIEWING PREMISES—INSTRUCTIONS.

1. It is within the discretion of the court to impanel a regular or special grand jury to serve at any term.

2. It cannot be presumed that the court allowed to be put upon a trial jury jurors not found to be free from exception, where it appears from the record that a sufficient number of jurors had been found to be free from exception, and were in court.

3. Where a homicide has been committed by shooting, evidence in regard to certain shells found in a gun at the house of the prisoner after the homicide, which had been previously loaded with shot similar to those which entered the body of the deceased, is admissible to show intent, deliberation, preparation, and malice.

4. A judgment will not be reversed because of the admission of improper evidence, where the verdict clearly shows that no weight was given to it by the jury.

5. In a prosecution for homicide, it was not error to allow the prisoner to be asked on cross-examination: "What were you going to do? Were you going to shoot J. [deceased], whether you saw the pistol or not?"—he not having claimed his exemption, or suggested that his answer would criminate him.

6. Where a homicide has been proven, the burden is on the accused to extenuate, justify, or excuse his act, and the commonwealth may offer in rebuttal evidence of its version of facts shown by the accused.

7. Under Code, § 3107, which provides that "the jury may in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing, relating to the controversy between the parties, when it shall appear to the court that such a view is necessary to a just decision, " the court may, in its discretion, permit the_ jury to visit and view the premises where it is alleged a crime has been committed.

¶ 7. See Criminal Law, vol. 14, Cent. Dig. § 1516; Homicide, vol. 26, Cent. Dig. § 655.

8. Where the instructions given, when read as a whole, set forth the whole case correctly and fairly, it is not error to refuse other instructions.

Appeal from Washington County Court.

Moses W. Litton was convicted of voluntary manslaughter, and brings error. Affirmed.

Hutton & Honaker, White & Penn, Daniel Trigg, and Walter H. Robertson, for appellant.

William A. Anderson, Atty. Gen., and J. C. Wysor, for the Commonwealth.

CARDWELL, J. This is a writ of error to a judgment of the county court of Washington county, sentencing Moses W. Litton to confinement in the penitentiary for a term of five years for the killing of John Collings.

It appears that there was bad feeling between the prisoner and the Collings family, caused by the alleged depredation of the fowls of Collings on the lands of the prisoner; that the lands of the prisoner were near those of J. K. Collings, father of the deceased, being separated by a lane which ran near the barn of J. K. Collings; that on the 18th day of July, 1902, John Collings, the deceased, had been hauling hay, and had come to his father's barn, and, accompanied by his mother and sister (the latter carrying a Winchester rifle), went out to the adjoining meadow of the prisoner, where he was at work, to get a chicken which the prisoner had injured or killed; and that there the deceased and the prisoner had a difficulty, in which the deceas-ed felled the prisoner to the ground by a severe blow upon his right cheek with a fork handle which he had brought with him, and then returned to his own home, near by. The commonwealth's evidence is to the effect that the prisoner was facing the deceased, with a stick in his hand, acting as though he intended to use it, when the deceased struck him on the side of his face, mashing his cheek bone and felling him to the ground, while the evidence of the prisoner, is to the effect that he was in a stooping position, picking up weeds, with his back to the deceased, when he received the blow.

This difficulty occurred between 3 and 4 o'clock in the evening of July 18, 1002. About 7 o'clock the same evening, after his wound had been dressed, the prisoner came out upon his front porch, taking a seat, with his double-barreled shotgun beside him, and upon hearing a wagon approaching along the public road in front of his house, and supposing the deceased was on the wagon, the prisoner took a position in the corner of his yard, near the yard fence running parallel with the public road, and next to the approaching wagon, with his gun in his hand, and when the deceased, upon a load of hay, and driving the team, with the lines in the left hand, and a whip in the right, was about opposite him, the prisoner raised his gun and fired, the load taking effect in the elbow of deceased's left arm, whereupon the deceased undertook to shoot at the prisoner with a pistol he had been carrying in his pocket or on the wagon; the discharge of the pistol and the second shot from prisoner's gun being simultaneous; the second shot from the gun taking effect in deceased's left side, over the heart. After the deceased was thus shot he continued to fire his pistol until its five chambers were emptied, but, as he was in a dying condition, the shots went wide of the prisoner. The prisoner then ran back to his house, about 45 yards away, got his Winchester rifle, came out again to the yard, and warned Smith, who was on the wagon, holding the deceased, to get out of the way; but, upon being told by Smith not to shoot—"You have already killed him"—the prisoner did not fire his rifle, and went back into his house. The deceased had then expired.

The first error assigned relates to the impaneling of the grand jury which found the indictment against the prisoner. Prior to the August term, 1902, of the county court, at which the prisoner was indicted, the judge of the court had, in accordance with the statute, furnished the clerk with a list of 48 persons to serve as grand jurors for a year, and the clerk had issued a venire facias for 12 of the persons on that list to serve at the August term, 1902; but in the meantime the General Assembly passed the act of July 28, 1902, amending section 3976 of the Code, prescribing who are qualified persons to serve as grand jurors, how they are to be selected, etc. The judge of the county court, deeming it expedient to do so, on the 1st day of the August term, 1902, quashed the writ of venire facias for the grand jurors to serve at that term, and furnished the clerk with another list of 48 persons to serve as grand jurors for one year, beginning with and including that term, in accordance with the act of July 28, 1902; and from that list the clerk, as ordered by the judge, issued a writ of venire facias for 12 of said jurors to attend the day the writ was issued, to serve as grand jurors at the August term of the court, then begun. Thereupon all of the 12 grand jurors so summoned appeared in court, were duly sworn and examined according to law, and 11 of them were found to be free from exception, who were sworn a jury of inquest according to law, and thereafter, on the following day, presented the indictment upon which the prisoner was tried and convicted.

The contention made for the prisoner is that the court erred (1) in quashing the venire facias issued by the clerk on the 13th of August, 1902; and (2) in not impaneling a special grand jury, under the provisions of section 3978 of the Code, which are as follows: "A special grand jury may be ordered at any time by a county, corporation, or hustings court, or the judge thereof in vacation, the jurors to be summoned from a list furnished by the judge; and where a grand jury, regular or special, has been discharged, the court, during the same term, may impanel another grand jury, which may be a special grand jury."

Section 3977 of the Code, as amended by the act of February 25, 1890 (Acts 1889-90, p. 91, c. 115), provides that a regular grand jury shall consist of not less than 9 nor more than 12 persons, and a special grand jury of not less than 6 nor more than 9 persons; and clearly it was within the discretion of the judge of the county court of Washington county at its August term, 1902, to impanel a regular or a special grand jury to serve at that term. Having impaneled a regular grand jury, consisting of not less than 9 nor more than 12 persons, to wit, 11, selected from a list of 48 persons to serve as grand jurors for one year, beginning with that term, there is nothing whatever in the proceedings to vitiate the indictment found against the prisoner. Shinn's Case, 32 Grat. 907.

It appears that several lists and writs of venire facias were issued before a panel of 16 persons, free from exception, was obtained, from which the jury that tried the prisoner was selected. To each of the writs of venire facias the prisoner excepted, without assigning any grounds therefor, the exceptions were overruled, and this is assigned as error.

Several grounds are stated in the argument here, upon which we are asked to hold that the county court erred in summoning and selecting the jurors who tried the prisoner, among which, and the only ones that we deem it necessary to consider, are (1) that the record does not affirmatively showthat the original list furnished by the judge contained the names of 16 persons; and (2) that the jurors making up the panel from which the jury that tried the prisoner were selected were the jurors who upon their examination by the court were found free from exception.

The bill of exceptions upon which the assignment of error is founded sets out at length all the proceedings in the summoning, selecting, and impaneling the jury, setting forth that after the prisoner was led to the bar of the court, and issue joined upon his plea of not guilty, the sheriff returned the list furnished by the judge of the court, and the venire facias...