Oliver v. Commonwealth

• Decision Date: 15 November 1928
• Citation: 151 Va. 533
• Parties: ROY OLIVER v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 533

151 Va. 533

ROY OLIVER v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

November 15, 1928.

Absent, Chichester, J.

1. APPEAL AND ERROR — Weight of Evidence of Jury — Case at Bar. — In the instant case, a prosecution for murder, the jury found a verdict of guilty of murder in the second degree. The evidence was conflicting as to whether the killing was accidental or premeditated murder. The jury saw the witnesses, heard them testify, and its finding was approved by the judge who presided at the trial. The jury, well within the discretion vested in it, saw fit to believe the evidence tendered on behalf of the Commonwealth, and to disbelieve all in material conflict therewith offered for the accused.

Held: That with this lawful exercise of vested power, the court had no right to interfere.

2. APPEAL AND ERROR — Instruction — Objection to Instruction after Adjournment of Court — Case at Bar. — In the instant case, a prosecution for homicide, no objection of any kind was made to an amended instruction. Final judgment was entered on October 21, 1927, and not until December 7, 1927, after court had adjourned for the term, was any objection made to the instruction.

Held: That the objection came too late.

3. HOMICIDE — Instructions — Instruction that Voluntary Manslaughter Might be Murder — Harmless Error. — In a prosecution for murder the court gave an instruction which, reduced to simple form, told the jury that voluntary manslaughter might be murder — an error in certain circumstances of the gravest moment. But in the instant case the killing was either accidental or deliberate. There was no evidence to support any other conclusion. The court told the jury that the accused was not guilty if the killing was accidental. The jury did not return a verdict of not guilty.

Held: That the error in the instruction was not prejudicial to the accused.

4. APPEAL AND ERROR — Harmless Error — Basis of the Doctrine. — There is no such thing as a perfect trial. Every man is entitled to a fair trial and to nothing more, and so out of the necessities of the case, and out of the imperative demands of common sense, has grown the doctrine of harmless error.

5. HOMICIDE — Instructions — Supported by the Evidence — Burden of Disproving Malice — Case at Bar. — In the instant case, a prosecution for homicide, accused objected to an instruction that: "On the charge of murder, if the fact of the killing has been established, and is unaccompanied with circumstances of palliation, the burden of disproving malice is thrown on the accused." The evidence for the accused showed or tended to show that the killing was accidental, but the evidence for the Commonwealth tended to show that the killing was intentional.

Held: That if the accused's evidence had been all the evidence, the instruction would have been wrong, but that in view of the evidence for the Commonwealth it was not erroneous.

6. CRIMINAL LAW — Instructions — Right of Commonwealth to Instruction. — The Commonwealth is entitled to instructions based upon its theory of the case supported by its evidence.

7. HOMICIDE — Instructions — Invited Error — Case at Bar. — In a prosecution for homicide the court instructed the jury that if they believed that the shooting was accidental, there was no presumption of malice from the mere fact of killing, but the burden was upon the Commonwealth to prove beyond a reasonable doubt malice, express or implied. The instruction was tendered on behalf of the accused and was amended over his protest by adding the last words, "express or implied."

Held: That if there was error, it was invited, as the instruction as originally tendered told the jury they might believe the shooting was accidental and still believe it was done with malice.

8. HOMICIDE — Malice — How Shown — Malice Implied in Deliberate Killing. — In a prosecution for homicide, malice may be shown by positive evidence or by facts and circumstances. If the killing was deliberately done, then the law implies malice.

9. HOMICIDE — Motive — Necessity of Showing Motive. — In a prosecution for homicide proof of motive is never necessary. Its absence is in itself a cogent argument for acquittal, but that is all.

10. HOMICIDE — Motive — Refusal to Give Instruction where Accused Claimed that the Killing was Accidental and that the Absence of Motive Afforded a Strong Presumption of Innocence. — In the instant case the court refused at the request of defendant to charge that the absence of an inducing cause or motive to commit the crime, when the defense is that it was accidentally done, and the intent with which it was done is in doubt, affords a strong presumption of innocence; and instructed the jury that to establish the charge of murder, it was not necessary to prove the motive of such murder. There was evidence tending to show that there was some misunderstanding between defendant and his victim; that defendant threatened to strike his victim with a rock; that defendant then went home, armed himself with a pistol, returned, called his victim to him, and shot him without warning.

Held: There was no error in the instruction, as it could not be said there was no evidence of motive.

Error to a judgment of the Circuit Court of Greene county.

The opinion states the case.

Chas. A. Hammer and C. E. Gentry, for the plaintiff in error.

John R. Saunders, Attorney-General, Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

Roy Oliver, who was twenty-one years old, shot and killed Albin Haney, a boy of fifteen years, at Ruckersville, in Greene county, on Saturday, September 3, 1927, at six o'clock p.m. For the Commonwealth it is said that this was a deliberate murder, and for the accused it is said that it was an accident pure and simple. This issue was submitted to a jury, which found him guilty of murder in the second degree and ascertained and fixed his punishment at confinement in the penitentiary for a term of eighteen years. The verdict was confirmed by the trial court, and to it a writ or error has been awarded.

In the early afternoon of that day, the accused, his father and brother, Charles, went in an automobile from their home to Stanardsville. They lingered in that village for some time. Charles there left them to visit an uncle while Roy Oliver and his father came on to Ruckersville where they remained for an hour or more. Roy then took his father home and came immediately back. It was on his return that the shooting occurred.

There were a number of eyewitnesses.

Frank Daniel, then nine years old, testified on behalf of the Commonwealth. Although quite young, his evidence seems to be frank and straightforward, and was unshaken on cross-examination. He, in substance, stated that on the afternoon of the homicide he saw the accused chase the deceased with a rock in his hand, extended as if to strike. On this occasion he called to Haney to stop. This Haney did, and Oliver then took something from him which the record shows was a letter. Afterwards, upon his return from home and while still in the car, he said to Haney: "Come here." In response to this request Haney started towards him and when about two or three feet away was shot in the head and fell to the ground. At the time of the shooting Haney had not reached the car and had not touched it, nor had he touched the pistol. Oliver "pulled it (the pistol) out of the case real quick and shot him." Nothing was then said except: "Come here," and neither of the parties were smiling.

A. T. Dulaney, Jr., testified that when Oliver called to Haney to come to him, Haney was about ten feet away and when shot he was about two feet distant; that he never had his foot on the running board, and did not touch the pistol. This is his statement, in part, of what occurred:

"Q. I believe you described how he got the pistol. How was that done?

"A. He pulled it out of the case real quick and shot him."

And on cross-examination he said:

"Q. Now then, what did Oliver do when he shot?

"A. He pulled it out real quick and shot and then put it back."

The pistol had been in a case, and he said: "I saw him pull the case up, and when he took it out he put the case back."

When asked if Oliver said anything at that time, he answered: "No, sir. He said he didn't know there was anything in the pistol."

Albert Dulaney also heard Oliver say to Haney: "Come here." His evidence is that Haney, in compliance with this request, advanced towards the car in which Oliver sat and stopped when about two and a half feet away. Oliver then "just pulled it (the pistol) and shot him." Haney did not touch the pistol and did not touch the car.

Such in substance is the Commonwealth's case.

For the defendant it is claimed that this man and boy were on the friendlies; terms: had been playing together just before Oliver took his father home, and that the shooting was wholly unintentional. A witness, Johnson, testified that as Oliver got out of the car "he said `I didn't know it had a bullet in it,' and he said he was projecting with his gun, and said he didn't know he had a bullet in it."

Douglas, another witness, heard Oliver say that it was an accident, while Lindsay states that at the time of the shooting Oliver was talking and laughing.

This is Oliver's account of how the tragedy came to pass:

"Q. On which side of the road in Ruckersville did you stop the car to put that darky out?

"A. On the right where they get gas, and then pulled over to the left to park.

"Q. And then what happened?

"A. I slid over and got out.

"Q. To which side of the car were you sliding to get out?

"A. On the right hand side.

"Q. On which side is the steering wheel located?

"A. On the left-hand side.

"Q. And you were sliding over towards Dulaney's store?

"A. Yes, sir.

"Q. Then what happened?

"A. I took the switch key out, and Albin walked up to the car, laughing, and I...