Mitchell v. Commonwealth

• Decision Date: 22 April 1880
• Citation: Mitchell v. Commonwealth, 74 Va. 872 (1880)
• Parties: NELSON MITCHELL v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

74 Va. 872

NELSON MITCHELL v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 22, 1880

1. Upon the evidence in this case the prisoner was guilty of murder in the first degree.

2. There was no doubt that the prisoner intended to kill the deceased, and that he struck the fatal blow when the deceased was endeavoring to escape from him, and the blow was in the back of the deceased; and the only questions were whether the striking the prisoner with a heavy stick to resent an insult offered to him was a sufficient provocation to justify the killing of the deceased in the manner in which it was done and whether the prisoner did not provoke the attack upon himself that he might have an excuse for killing the deceased. And the jury having found the prisoner guilty of murder in the first degree, and the county judge who presided at the trial, and the judge of the circuit court of the county, having refused to grant a new trial, this court seeing there is evidence to warrant the verdict, will not set it aside.

At the December term, 1879, of the county court of Amherst, Nelson Mitchell was indicted for the murder of John C. Gillespie. He was tried at the February term, 1880, of the court, and the jury found him guilty of murder in the first degree. He thereupon moved the court for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, and sentenced the prisoner to be hanged. The prisoner excepted to the opinion of the court and applied to the judge of the circuit court for a writ of error; which was refused; and he then obtained a writ of error and supersedeas, from a judge of this court. The case is fully stated in the opinion of the court delivered by Moncure, P.

N M. Williams, for the prisoner.

The Attorney-General, for the Commonwealth.

OPINION

MONCURE, P.

This is a writ of error to a judgment of the county court of Amherst county, rendered on the 20th day of February, 1880, whereby the plaintiff in error, Nelson Mitchell, was convicted of murder in the first degree and sentenced to be hung therefor. The following is a statement of the case, or so much of it, as seems to be proper to be stated, in order to its correct understanding and decision.

On the 15th day of December, 1879, he was indicted by a grand jury in the said county court, for having, on the 14th day of November, 1879, in the said county, murdered John C. Gillespie. On the 17th day of February, 1880, being arraigned in the said court on the said indictment, he pleaded not guilty thereto, and was put upon his trial; in the progress of which, to-wit: on the next day, on his motion, the court gave to the jury the following instruction, to-wit:

" If the jury believe from the evidence that the deceased made an assault upon the prisoner with a stick, and struck him one or more severe blows, and that the prisoner, immediately thereafter, and in sudden passion produced by the blows aforesaid, struck and cut the deceased, causing his death without necessity, this is not murder, either in the first or second degree, but is voluntary manslaughter."

On the 19th day of February, 1880, the jury brought in a verdict in the case in the following words:

" We, the jury, find the prisoner, Nelson Mitchell, guilty of murder in the first degree."

Whereupon the accused moved the court to set aside the verdict and grant him a new trial, which motion the court overruled; to which opinion of the court he filed a bill of exceptions, which was signed, sealed and enrolled by the court, and made a part of the record. And the court certified therein, that the following are the facts and all the facts proved on the trial of the said Nelson Mitchell:

" That on the 14th day of November, in the year 1879, the deceased, John C. Gillispie, went to the house occupied by the said Nelson Mitchell, in Amherst county, for the purpose of employing Editha Brown, a sister-in-law of the prisoner, to plow in some wheat. The prisoner was engaged in drawing timber for baskets; the deceased, after having talked to the woman at the house, went to the place where the prisoner was at work, near said house and in said county, when the prisoner asked the deceased about paying Editha Brown for some work which she had done for the deceased, and remarked that he did not think one-half bushel of corn was enough for four days' work; the deceased replied to him that he had already heard him tell Editha Brown that he would pay her until she was satisfied; the prisoner then asked him again, ‘ Do you think one-half bushel of corn is enough for four days' work? I think it is damned little pay’ ; to which the deceased replied, ‘ you must not talk to me in that way’ ; the prisoner said, ‘ I will talk as I damn please’ ; the deceased immediately stooped down and picked up a white-oak stick between four and five feet long, an inch wide, and an inch thick, and struck the prisoner, who was sitting down on a horse used for drawing timber for baskets, making one severe blow on the back, and one severe blow near the back of the neck, when the prisoner immediately reached down and picked up a pole-axe, which was lying in reach of where he was sitting, and raising up struck with the axe in his right hand, cutting the left hand of the deceased, in which he was holding the

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