Looney v. Commonwealth

• Decision Date: 16 June 1913
• Citation: 78 S.E. 625,115 Va. 921
• Parties: LOONEY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

(115 Va. 921)

78 S.E. 625

LOONEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 16, 1913.

1. Criminal Law (§§ 121, 1150^*) — Change of Venue—Discretion of Trial Court.

A motion under Code 1904, § 4036, for a change of venue on the ground of prejudice against accused is addressed to the discretion of the trial court, and its ruling will not be disturbed unless it plainly appears that the discretion has been improperly exercised.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 241, 3044; Dec. Dig. §§ 121, 1150.*]

2. Criminal Law (§ 1148*)—Jury (§ 7*)— Summoning Jury — Motion to Summon Jury from Another County—Discretion of Court.

A motion under Code 1904, § 4024, for a jury from another county is addressed to the discretion of the trial court, and its ruling will not be disturbed unless it plainly appears that the discretion has been improperly exercised.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3050-3052; Dec. Dig. § 1148;* Jury, Cent. Dig. § 12; Dec. Dig. § 7.*]

3. Jury (§ 7*)—Summoning Jury from Other County—Motion—Time to Make.

A motion under Code 1904, § 4024, for a jury from another county must precede a motion for a change of venue.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §, 12; Dec. Dig. § 7.*]

4. Criminal Law (§ 1144*) — Summoning Jury from Another County or Corporation—Grounds.

Where a motion for a jury from another county was based on the ground that an impartial jury could not be obtained from the county, the conclusive presumption arising from the fact that an impartial jury was subsequently secured in the county is that the motion was unfounded.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]

5. Criminal Law (J 122*) — Jury (§ 7*) — Questions Reviewable—Motions Depending on Conditions at Time of Trial.

A motion for a change of venue on the ground of prejudice against accused, and a motion for a jury from another county or corporation, depend on conditions existing at the time of trial and are renewable on new trial when the exigencies of the situation require it.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 254; Dec. Dig. § 122;* Jury, Cent. Dig. § 12; Dec. Dig. § 7.*]

6. Jury (§ 70*)—Summoning Jury—Statutory Provisions.

Code 1904, § 4018, providing that the writ of venire facias in case of felony shall command the officer to summon 16 persons taken from the list furnished by the clerk, and pro-violins that the list shall contain the names of 20 persons drawn by the clerk in the presence of the presiding judge or, in his absence, of one of the commissioners in chancery, and a reputable citizen not connected with accused or prosecutor, and declaring that for good cause shown the presiding judge may direct more than 20 names to be drawn and shall specify the number of names to be drawn and summoned, the number drawn not being more than 4 in excess of the number to be summoned, is mandatory, and there must be a substantial compliance therewith, and, in the absence of any cause, it is improper to prepare a list containing the names of 60 persons, and to order the officer to summon 30 from that list, and where the persons summoned on a second venire were practically the same as those summoned on the first venire, which was quashed, on the ground that it was drawn in the presence of the commissioner in chancery, who was the active head of the prosecution, the statute was disregarded, though when the second venire was ordered the judge and the clerk in form drew the names from the jury box.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 310-330, 340, 350; Dec. Dig. §, 70.*]

7. Criminal Law (§ 363*)—Evidence—Res Gestæ.

Where there was no connection between a difficulty between accused and a third person, and the subsequent killing by accused of decedent, and the killing occurred at a different time and place, and decedent was not concerned in or present at the prior difficulty, the details and merits of the prior difficulty could not be shown, for they were no part of the res gestæ.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.*]

8. Municipal Corporations (§ 122*)—Ordinances—Admissibility.

The mere fact that the records of the council of a town were kept in a crude manner in an account book or ledger which had been used for other purposes, and which contained other matter than the by-laws and ordinances of the town, and also contained a sheet of type-written matter concerning the business of the town, injected between the by-laws and ordinances and the certification and signatures of the clerk and mayor, did not render the records inadmissible to prove an ordinance, where as a whole they contained a sufficient authentication of the ordinance.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. § 122.*]

9. Criminal Law (§ 834*)—Requested In structions—Modification.

A requested instruction that, though decedent at the time he was shot was attempting to arrest accused, yet if in making such attempt he shot at accused, and thereupon, because of the shooting, accused, believing himself in "imminent danger of being killed or sustaining great bodily injury, " killed decedent, the killing was not murder, though accused had previously threatened to kill any one who might attempt to arrest him, was properly modified by inserting after the quoted phrase the words "and being without fault in provoking the difficulty."

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2013, 2014; Dec. Dig. § 834.*]

10. Homicide (§ 151*)—Resisting Unlawful Arrest—Burden of Proof.

Where an officer having a lawful warrant attempted to arrest accused, the presumption, in absence of evidence to the contrary, is that the officer discharged his duty in a lawful manner, and accused, resisting the arrest and killing the officer, has the burden of showing that the officer's conduct justified resistance.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.*]

Error to Circuit Court, Craig County.

Harvey D. Looney was convicted of murder in the first degree, and he brings error. Reversed.

O. B. Harvey, of Clifton Forge, and Wm. E. Allen, of Covington, for plaintiff in error.

Samuel Williams, Atty. Gen., and J. P. Jones, of New Castle, for the Commonwealth.

WHITTLE, J. The plaintiff in error, Harvey D. Looney, was found guilty of murder in the first degree, and in accordance with the verdict of the jury was sentenced to death by the circuit court of Craig county. The case is before us on a writ of error to that judgment.

The prisoner, when put upon trial, moved the court for a change of venue under section 4036 of the Code. The grounds for the motion being that the county of Craig is a small mountainous county sparsely settled, and that in the town of New Castle the county seat and scene of the homicide, and throughout the entire county, great prejudice and ill will existed against the accused, both on account of the homicide and of numerous other difficulties in which he had been involved; that the deceased had a large relationship and connection in the community and many wealthy and influential friends' who were taking an active part against him, and by whom the entire bar of the county had been employéd to aid the prosecution. Moreover, that he had been informed of threats to lynch him in the event of his acquittal. For these reasons the accused alleged that he could not secure a fair and impartial trial in the county. The affidavits of 5 persons were offered in support of the petition, and of 20 persons in opposition to the change of venue, and the court overruled the motion. Thereupon the accused submitted a motion under section 4024 for a venire to be summoned from some other county or corporation, which motion was likewise overruled. The action of the court upon these motions constitutes the first and second assignments of error.

The trial court, in the exercise of the powers conferred upon it by sections 4024 and 4036, must of necessity be allowed a wide discretion, and it is the established rule that this court will not reverse the judgment of the trial court unless it plainly appears that such discretion has been improperly exercised. Wormeley's Case, 51 Va. 658, 672, 673; Chahoon's Case, 62 Va. 822; Sands' Case, 62 Va. 871, 882-884; Richards' Case, 107 Va. 881, 59 S. E. 1104; Bowles' Case, 103 Va. 816, 48 S. E. 527.

It is also the general rule that a motion for a jury from another county or corporation should precede the motion for a change of venue; and, where the motion is based on the ground that an impartial jury cannot be obtained in the county or corporation, the conclusive presumption from the fact that an impartial jury has subsequently been secured in the county is that such motion was unfounded. Wright's Case, 74 Va. 880; Joyce's Case, 78 Va. 289; Waller's Case, 84 Va. 492, 496, 5 S. E. 364. Cases may arise, however, where the general rule would be inapplicable and a motion for change of venue should precede a motion for a jury from another county. See Uzzle v. Commonwealth, 107 Va. 919, 60 S. E. 52.

We are of opinion that there is no reversible error in these assignments; nevertheless, as both motions depend upon conditions existing at the time of trial, they are, as a matter of course, renewable upon a new trial whenever the exigencies of the situation may call them into requisition.

The third assignment of error is to the refusal of the court to quash the second venire facias. The facts touching this assignment are not disputed. On motion of the prisoner the first venire facias and list of veniremen was quashed because the venire was drawn in the presence of G. W. Layman, the commissioner in chancery designated for that purpose; it appearing that he was the active head of the prosecution. Thereupon the judge asked the sheriff if the persons summoned under the...