Livingston v. Commonwealth

Decision Date07 November 1857
Citation55 Va. 592
CourtVirginia Supreme Court

(Absent ALLEN, P. and LEE, J.)

1. Under a common law indictment for murder, the prisoner may be found guilty of murder in the first or second degree, or manslaughter.

2. QUÆ RE: If a prisoner has been convicted of murder in the second degree, or manslaughter, and obtains a new trial whether he can be put upon his trial again for a higher offence, than that of which he was convicted.

3. Upon a trial for murder, it having been proved that the prisoner had beat the deceased, the complaint of the deceased of pain suffered by her within two hours of the beating, is competent evidence.

4. It being proved that a witness is a practicing physician, he is a competent witness to express an opinion as an expert upon a medical question.

5. Upon a trial for homicide, it is competent for the commonwealth to introduce physicians or surgeons to give their opinion on a state of facts testified to by themselves or other witnesses in respect to a wound or beating proved to have been inflicted on the deceased, as to whether such wound or beating would be a cause adequate to produce the death, or was the actual cause of the death.

6. In such case, the questions put and the answers given should be so put and given as not to elicit or express an opinion by the physician or surgeon on the credit of the witnesses or the truth of the facts testified to by others.

7. Where in a case of homicide it appears that a wound or beating was inflicted on the deceased, which was not mortal and the deceased whilst laboring under the effect of the violence, becomes sick of a disease not caused by such violence, from which disease death ensues within a year and a day, the party charged with the homicide is not criminally responsible for the death, although it should also appear that the symptoms of the disease were aggravated, and the fatal progress quickened, by the enfeebled or irritated condition of the deceased, caused by the violence.

At the October term 1856 of the Circuit court of the city of Richmond, George Livingston was indicted for the murder of Elizabeth Duesberry. The indictment was in the usual form of a common law indictment for murder, and contained but one count. To this indictment the prisoner demurred; but his demurrer was overruled. He was tried at the same term, and found guilty of murder in the second degree; but on the motion of the prisoner, the court set aside the verdict and granted him a new trial. In April 1857 the prisoner was again tried and found guilty of voluntary manslaughter; and the term of his imprisonment was fixed at one year. Upon this trial the clerk charged the jury in the same terms as on the first trial. Upon the verdict the court rendered judgment against the prisoner; and he applied to this court for a writ of error; which was allowed.

On the trial a number of questions were saved; but it is only necessary to state those which were acted on by this court. It appears that the deceased was the mistress of the prisoner, and that he frequently beat her. On the Saturday previous to her death he gave her a beating, which was testified to by two of the inmates of the house where she lived. These witnesses testified, that on the same evening, and about two hours after the beating, she complained of a violent pain in her side. This testimony the prisoner moved the court to exclude; but the court overruled the motion; and the prisoner excepted. This is his first exception.

Dr. Waring, a practicing physician in Richmond, was sent for to see the deceased, and attended her until her death on the next Thursday. He stated, in giving in his evidence, that he heard nothing, either from the deceased or the witnesses, of bruises or pain any where except in the lower part of the abdomen, in the region of the bladder. That he treated the deceased to allay inflammation and promote action on the bowels. He made a post-mortem examination; and after detailing the appearances, said he saw sufficient cause of death, without referring it to the beating. The witness having said in answer to a question by the attorney for the commonwealth, that he heard the testimony of all the witnesses who had been examined; the attorney put to him the following question: Do you not think that the violence which she received by the beating which you have heard described, accelerated the death of the deceased? This question was objected to by the counsel for the prisoner; but the objection was overruled; and he excepted. This is his second exception.

After taking the foregoing exception, the prisoner by his counsel moved the court to exclude from the jury all the medical evidence which they had heard from the witness Waring, and all evidence given by him derived from his knowledge or skill as a practicing physician, unless it was proved or admitted by the commonwealth that he was an expert in his profession; the prisoner being willing to admit the fact. But the court overruled the motion; and the prisoner excepted.

After the attorney for the commonwealth had asked several other questions of the witness as to the effect of a beating upon a person in a diseased condition; all of which were excepted to by the prisoner's counsel; his ninth question was as follows: Your last answer seems to be based upon the opinion that the inflammation of the bladder and the constipation of the bowels could not have been caused by the infliction of the violence which you have heard related by the witness. Suppose the diseases of which you speak had developed themselves in this case after the violence (but not in consequence thereof), yet when she was suffering from said violence, do you think that said violence did or did not accelerate her death? To this question the prisoner by his counsel objected; but the court overruled the objection; and he again excepted.

On the trial a number of physicians had been summoned, who were present and heard the evidence, and were examined as to their opinion of the cause of the death of the deceased. Among these physicians was Dr. Charles Bell Gibson, who having stated that he had heard all the testimony in the cause, the attorney for the commonwealth put to him the following question: Please state what in your opinion, from all the evidence which has been given in this cause, was the cause of the death of Elizabeth Duesberry? This question was objected to by the prisoner by his counsel; but the objection was overruled by the court: and the prisoner again excepted. The witness answered: I think she died of peritonitis, which is an inflammation of the peritoneum, a cerous membrane which covers most of the viscera of the abdomen. This peritonitis was caused, I think, by the beating testified to.

After all the evidence had been introduced, and the argument of the cause had been concluded, when the jury were about to retire to consider of their verdict, one of them asked the court to instruct them, whether it was necessary to prove that the beating and the death occurred on the respective days laid in the indictment. And thereupon the court instructed the jury as follows: It is averred in the indictment that the beating and injury was inflicted on the 14th of March 1856, and that the deceased died on the 19th of that month. It is competent for the commonwealth to prove that the beating and injury was inflicted on the 8th, and that the deceased died on the 13th of that month; and if the ingredients necessary to prove the crime are proved to the satisfaction of the jury, they may find the prisoner guilty under this indictment. To which opinion of the court the prisoner excepted.

Crenshaw and Crump, for the prisoner.

The Attorney General, for the commonwealth.


The indictment is in the common law form of an indictment for murder. In the demurrer to it, which was overruled by the Circuit court, the causes of demurrer are not stated. And as to those causes which have been assigned by the counsel for the prisoner, in the argument here, they seem to be fully answered by the cases of Miller v. The Commonwealth, 1 Va. Cas. 310; Vance v. The Commonwealth, 2 Va. Cas. 162; and Wicks v. The Commonwealth, 2 Va. Cas. 387.

In the last mentioned case, the General court held, unanimously that the true object and effect of our act of 1802-3 was not to create two offences out of the crime of murder, but to arrange the various kinds of murder at the common law, under the two denominations of murder in the first degree, and murder in the second degree; and to annex to the cases in each denomination a punishment corresponding in severity to the degree of atrocity with which they might be perpetrated, and by which they would be marked as belonging to the one or the other of said denominations of murder. And that the legislature contemplated no change in the frame of the indictment, they further held, was plainly to be inferred, from the clause requiring the juries, in all cases of indictments for murder, when they find the party accused guilty of murder, to ascertain in their verdict whether it be murder in the first degree or second degree; and also from the clause requiring the court, in case of conviction by confession, to proceed by examination of witnesses to determine the degree of crime, and to give sentence accordingly. These clauses, they held, would have been wholly unnecessary, if it had been in the contemplation of the framers of the act that the indictment should in each case set out specially the features by which the offence should be marked as belonging to murder in the first or murder in the second degree: inasmuch as a general verdict of guilty on the one hand, or a confession of guilt on the other, under such an...

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4 cases
  • Michaelson v. City of Charleston
    • United States
    • West Virginia Supreme Court
    • June 10, 1912
    ...treatment contributed to death. To relieve from murder, the wound must be not mortal, and death must come from independent cause. Livingston's Case, 55 Va. 592; Clark's Case, 90 Va. 360, 18 S.E. 440; 2 Bishop, Law, § 638, 1 and 2. So with a tort-feasor. It can hardly be said that a city can......
  • Shular v. The State
    • United States
    • Indiana Supreme Court
    • February 9, 1886
    ...579, 6 L.Ed. 165; State v. Davis, 80 N.C. 384; Com. v. Arnold, 6 Crim. Law Mag. 61; Lesslie v. State, 18 Ohio St. 390; Livingston's Case, 55 Va. 592, 14 Gratt. 592; United States v. Harding, 1 Wall. Jr. 26 F. Cas. 131; State v. McCord, 8 Kan. 232 (12 Am. R. 469). Another illustration is sup......
  • Nelson v. State
    • United States
    • Georgia Court of Appeals
    • July 15, 1938
    ...for the death even though the wound inflicted rendered the deceased less able to resist the effects of the disease. Livingston v. Com., 14 Grat. 592, 55 Va. 592. Thus: "To hold a person criminally responsible for a homicide, his act must have been the proximate cause of the death as disting......
  • Waller v. Commonwealth
    • United States
    • Virginia Supreme Court
    • October 13, 1941
    ...inevitable, and that the ultimate cause of death was the result of the wounds inflicted by the accused. See case of Livingston v. Commonwealth, 14 Grat. 592, 55 Va. 592, for a discussion of the question involved. The last assignment of error challenges the action of the court in overruling ......

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