Mercer v. Commonwealth

• Decision Date: 22 March 1928
• Citation: 142 S.E. 369
• Parties: MERCER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

142 S.E. 369

MERCER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 22, 1928.

Error to Corporation Court of Norfolk.

A. Floyd Mercer was convicted of murder in the second degree, and he brings error. Reversed, verdict set aside, and case remanded for further proceedings.

W. R. Ashburn, Paul W. Kear, and W. H. Venable, all of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

CAMPBELL, J. The plaintiff in, error was indicted in the circuit court of Princess Anne county, jointly with John T. Capps and William L. Birsch, for the murder of one Allen Lee Waterfield. On the petition of the accused, supported by affidavit, the circuit court of Princess Anne county, after a consideration of the petition, affidavits, and testimony of witnesses, ordered a change of venue, and transferred the case to the corporation court of the city of Norfolk, where a trial was had on the 22d day of June, 1927.

Upon the trial, the accused, having elected to be tried separately, was found guilty, by a jury, of murder in the second degree, and sentenced to confinement in the penitentiary for a term of ten years, and to that judgment he has obtained this writ of error.

At the instance of the commonwealth, and over the objection of the accused, the court gave this instruction:

"Every unlawful homicide in Virginia is presumed in law to be murder in the second degree. In order to elevate the offense to murder in the first degree, the burden of proof is on the commonwealth, to reduce the offense to manslaughter, the burden of proof is on the prisoner."

This action of the court is assigned as error. The main objection urged to this instruction is that it tells the jury that malice is an inference of law drawn from the act of killing, and not an ingredient of fact which requires proof of its existence.

Murder, in Virginia, is either murder in the first degree or murder in the second degree. This distinction is statutory.

Section 4393 of the Code is as follows:

"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery, or burglary, is murder of the first degree. All other murder is murder of the second degree."

To constitute murder, either at common law or under the statute, malice is an essential constituent. Malice may be either express or implied.

In Murphy v. Commonwealth, 23 Grat. (64 Va.) 960, decided in March, 1873, the following instruction was made the basis of an assignment of error:

"The court further instructs the jury, that the law is that malice may be implied from the deliberate use of a deadly weapon in the absence of proof to the contrary."

Judge Moncure, delivering the opinion of the court, held that the instruction correctly expounds the law.

In Exposition of the Law of Crimes and Punishments, p. 55, Professor John B. Minor states the doctrine thus:

"Malice is a prima facie inference from the very fact, for one must be presumed to have designed to do what he did, or what is the immediate and necessary consequence of his act, unless he can show the contrary."

This doctrine has been adhered to in Lewis' Case, 78 Va. 733; Honesty's Case, 81 Va. 291; Muscoe's Case, 86 Va. 451, 10 S. E. 534; Horton's Case, 99 Va. 853, 38 S. E. 184; Potts' Case, 113 Va. 733, 73 S. E. 470; and in Sim's Case (1922) 134 Va. 736, 115 S. E. 382. In the latter case, the trial court instructed the jury that:

"Every homicide is presumed to be murder in the second degree and the burden of proving the elements necessary to elevate the crime to murder in the first degree is upon the Commonwealth, but on the other hand in order to reduce the offense from murder in the second degree to manslaughter or excusable homicide, the burden is upon the prisoner."

In holding that the instruction correctly states the law, Judge Burks said:

"Two objections Were made to this instruction. The first is that so much of the instruction as states that 'in order to reduce the offense from murder in the second degree to manslaughter or excusable homicide the burden is upon the prisoner, ' is not a correct statement of the law. This statement of the law is hoary with age and has been followed without criticism or objection in this jurisdiction for nearly a century. A partial list of the cases in which it has been approved is given in the margin. If in its practical application it had proved unfair or injurious to persons accused of homicide, it is more than probable that the fact would long ago have been discovered by the bar and the bench. It has proven satisfactory in the administration of justice and not hurtful to those accused of homicide, and we have no disposition to depart from it."

While we are of opinion that this assignment is without merit, we are not unmindful of the strong argument advanced in the dissenting opinion of Wilde, J, in Commonwealth v. York, 9 Metc. (Mass.) 93, 43 Am. Dec. 373, cited by counsel for the accused. In Litton's Case, 101 Va. 833, 44 S. E. 923, however, it is held that, when the commonwealth has proven the commission of a homicide, and has pointed out the accused as the criminal agent, then it may rest its case, and, unless the accused shows circumstances of justification, excuse, or alleviation, a verdict of murder in the second degree will be warranted.

Unquestionably, there are cases whento give the instruction under consideration would be error. If the evidence of the commonwealth or the uncontradicted evidence adduced by the accused shows that, at the time the overt act was committed, the accused was laboring under a reasonable apprehension of death or great bodily harm, then the instruction would be inapplicable. White-hurst v. Commonwealth, 79 Va. 560.

In the instant case we are unable to say the evidence is not conflicting, and the instruction given comes within the common-law rule, which has been the rule of decision in this commonwealth for nearly a century, and, so far as we are advised, has not once been the vehicle of injustice.

It is assigned as error that the court erred in amending instruction No. 2A. This instruction, as offered by the accused, is as follows:

"If the jury should believe from the evidence that the accused shot the deceased under a reasonable belief that his own life was in danger, or that he was in danger of serious bodily harm, as the facts and circumstances reasonably appeared to him at the time, he was excusable it so doing, whether such danger was real or not. The question for the jury in this case is, not whether the taking of the life of the deceased might have been safely avoided, but whether the accused (in the circumstances of agitation and peril in which he was placed, as reasonably appeared to him) might reasonably have believed and did believe, it necessary to shoot as he did, resulting in the death of the deceased, in order to save his own life, or avoid serious bodily harm."

The amendment consisted in striking out the italicized portion of the instruction. As offered, the instruction was clearly erroneous, as it assumed as an established fact that, at the time of the homicide, it reasonably appeared to the accused that he was placed in circumstances of agitation and peril, thereby depriving the jury of a prerogative that belonged exclusively to it. As to whether it reasonably appeared to the accused at the time of the homicide that he was placed in a situation of agitation and peril was a question of fact to be determined by the jury from the evidence in the case and the instructions given by the trial court.

Clearly, it was proper to strike out this portion of this instruction, and no error was committed by the trial court in so doing.

The next assignment of error calls in question the action of the court in giving the jury the following instruction:

"The jury are instructed that, if they believe from the evidence that, at the time and place of the shooting, the defendant. Mercer was a state game warden, then, by virtue of that office, he was an officer of the law of the state of Virginia, and was authorized and empowered to arrest and detain the deceased, that he had the lawful right to be at the place of the shooting, and that it was his duty, under the law, to at tempt to arrest the deceased in any lawful manner."

As offered, the language "in any lawful manner" was omitted. While it is a prima facie presumption...