Muscoe v. Commonwealth

• Decision Date: 12 February 1891
• Parties: Muscoe . v. Commonwealth.
• Court: Virginia Supreme Court

12 S.E. 790

87 Va. 460

Muscoe .

v.Commonwealth.

Supreme Court of Appeals of Virginia.

Feb. 12, 1891.

Homicide—Change of Venue—Jury—Evidence.

1. On indictment for murder defendant made affidavit that the prejudice against him was such that he could not have an impartial trial, and submitted newspaper extracts asserting his guilt. Several witnesses testified that the prejudice was not greater than usual in such cases, and that they were satisfied a fair trial could be had. Held, that the judge did not abuse his discretion in denying a change of venue.

2. Defendant cannot complain of the quashing of a venire facias on his own motion.

8. A venire facias should be quashed for irregularity on its face, though it has been exhausted by the answer of the venire

4. Where the record shows that an instruction could not have prejudiced defendant it is not ground for reversal of a judgment against him.

5. Declarations of defendant, just before the killing, that he felt like killing some one, are admissible to show his frame of mind.

Fauntleroy, J., dissenting.

Error to corporation court of Charlottesville.

James H. Hayes and Saml. M. Page, for plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Hinton, J. This is the sequel of the case of Muscoe v. Commonwealth, reported in 86 Va. 443, 10 S. E. Rep. 534. On the former appeal judgment was reversed, anda new trial was awarded for errors in the third and fourth instructions given by the trial court. The prisoner was again tried at the February term, 1S90, of the corporation court of the city of Charlottesville, was found guilty of murder in the first degree, and was sentenced to be hanged therefor on the 24th day of March, 1890. Thereupon the prisoner applied for and obtained a writ of error to said judgment from this court. In his petition several grounds of error are set out, which will be considered in the order of presentation. Of these assignments of error, the first and most important is based upon the action of the corporation court in overruling the prisoner's motion for a change of venire. After he had been arraigned, and had submitted a motion for a change of venire, which was overruled, he moved for a change of venue, and in support thereof filed his affidavit, with certain exhibits. In his affidavit he expressed the belief that there existed such prejudice against him in the city of Charlottesville and its vicinity that it would be impossible for him to obtain a fair and impartial verdict at the hands of a jury of that city or community. That during the time of his previous trial and since various rumors and newspaper reports of his case had been circulated throughout the city and county, to such an extent that nearly every citizen had expressed a decided opinion, or fully made up his mind, as to his guilt or innocence, and in nearly every case to his prejudice. He calls especial attention to a card of S. B. Wood, the mayor of Charlottesville, published soon after his arrest, and circulated in the Chronicle, a newspaper published in said city, wherein the mayor stated that the affiant was the man who had committed the murder, and called upon the citizens to desist from any attempt to break the law, by lynching the affiant, and assuring the public that the affiant would be hung in 30 days after sentence was passed upon. He also exhibits certain extracts from the same local paper, which do not seem to us to have the weight attributed to them by the counsel for the prisoner, and to which we do not deem it necessary further to allude. In opposition to this motion, the commonwealth introduced several witnesses, who testified substantially as follows: That the prejudice against the prisoner was not greater than is usual in similar cases, or than it had been in the cases of Martin and Morgan, who had been tried for like crimes but a short time before; that the feeling against the prisoner had abated since the first trial, and that they were satisfied that the prisoner could obtain a fair and impartial trial in the city of Charlottesville. Now, upon this state of facts, has the prisoner shown himself to be legally entitled to a change of venue? The reasons for having crimes tried in the locality wherein they have been committed are both weighty and obvious; and a criminal case, therefore, ought not to be sent elsewhere for trial, unless it is made to appear to the court in which the case is pending that a trial in the vicinage is likely to result in a miscarriage of justice, —that is, that the community has been so warped by passion or prejudice that there is danger of the jury being influenced by the opinions and prejudice of the public, and not entirely and exclusively by the evidence, in reaching a verdict. As was said by Judge Daniel, in Wormeley's Case, 10 Grat. 672: It may be safely affirmed, that the mere affidavit of the prisoner of his fears or belief that he cannot obtain a fair trial in the county is not sufficient to sustain the motion, but that he should be required to show by independent and disinterested testimony such facts as make it appear probable at least that his fears and belief are well founded. On the other hand, when such facts are stated and shown by the prisoner, and...