Parks v. Commonwealth

• Decision Date: 21 January 1909
• Citation: 63 S.E. 462,109 Va. 807
• Parties: PARKS . v. COMMONWEALTH.
• Court: Virginia Supreme Court

63 S.E. 462

109 Va. 807

PARKS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 21, 1909.

1. Criminal Law (§ 542^*) — Evidence at Former Trial—Grounds op Admission-Death of Witness.

Where a witness who had testified for accused at his first trial, when she was cross-examined by the state's attorney, died before the second trial, her testimony at the first trial was admissible for accused on his second trial.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1232; Dec. Dig. § 542.*]

2. Homicide (§ 300*)—Instructions—Applicability to Evidence.

In a homicide prosecution, evidence held not to show that accused provoked the difficulty, so as to justify an instruction as to its effect on the right of self-defense.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 628; Dec. Dig. § 300.^*]

Error to Circuit Court, Scott County.

Ira Parks was convicted of voluntary manslaughter, and he brings error. Reversed and remanded for further proceedings.

W. S. Cox, for plaintiff in error.

William A. Anderson, Atty. Gen., for the Commonwealth.

WHITTLE, J. The accused, Ira Parks, brings error to a judgment of the circuit court of Scott county, whereby he was convicted of voluntary manslaughter, and sentenced accordingly.

The first assignment of error is to the action of the court in excluding the testimony given by the wife of the plaintiff in error on a former trial of the case.

The witness testified at the first trial, and was cross-examined by the commonwealth's attorney, and, having died before the second trial, the accused sought to prove her testimony, but the court refused to admit the evidence.

Although the doctrine of the admissibility of such evidence is well settled both in England and in this country, the precise question never seems to have been decided by this court. Finn's Case, 5 Rand. 701, and Brogy's Case, 10 Grat. 722, are relied on by the Attorney General to maintain the rule of exclusion; but an examination of those cases will show that the court was dealing with witnesses absent from the commonwealth, and not such as had died after a previous examination. Some of the authorities hold that manifestly different principles apply to the two classes of witnesses.

Finn's Case was decided by the general court in 1827, and the statement of the learned judge who delivered the opinion that, although in a civil action proof might be given of the former testimony of a witness since dead, the rule was otherwise in a criminal prosecution, was purely obiter dictum, since, as remarked, the witness in that case was not dead but absent from the commonwealth.

In Brogy's Case the court quoted with approval the dictum in Finn's Case without discussing the principle involved, or citing any other authority.

Crite's Case, 1 Va. Dec. 423, recognizes the fact that the question is an open one in Virginia; but the court declined to decide the point, because it did not arise in that case.

In considering the doctrine Wigmore in his work on Evidence, at section 1398, observes: "In dealing with depositions and former testimony, our courts have almost unanimously received them in criminal prosecutions as not being obnoxious to the constitutional provision. The leading opinions were rendered chiefly between 1840 and 1860. Up to 1886 apparently the only contrary precedent not overruled was an early Virginia case, afterwards often cited, which professed to decide the question merely on English precedent, and not on constitutional grounds, and proceeded on the authority of an earlier English treatise, which, In turn, went upon the authority of Fenwick's trial—a parliamentary decision precisely to the opposite effect, and misunderstood by the writer of the treatise. This early Virginia ruling, of so little weight in itself, served, however, to keep a doubt alive, and in the last generation a few ill-considered rulings in other jurisdictions have followed it. Apart from these rulings, it is well and properly settled that such evidence—assuming always that there has been a due cross-examination—is admissible for the state In a criminal prosecution without infringing the Constitution." The discussion of the subject is continued in subsequent sections, and the authorities are collected and digested in notes, with later decisions cited, in volume 5 (Supplement), under the same sections.

An interesting review of Fenwick's Case, 4 St. Trials, 265, will be found in 2 Va. Law Reg. 807.

The doctrine of the admissibility of such evidence is also exhaustively treated by Mr. Justice Brown In Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409. The learned justice, after declaring the rule well settled in England, says: "As to the practice in this country, we know of none of the states in which such testimony is now held to be inadmissible." See, also, Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244; West v. Lousiana, 194 U. S. 258, 24 Sup. Ct. 650, 48 L. Ed. 965.

It would indeed present an anomalous state of the law to admit such evidence in civil cases, involving property rights merely, and to apply the rule of exclusion to criminal cases, involving life and liberty, when the introduction of such evidence is not infrequently of controlling weight, either in bringing the guilty to punishment on the one hand or of shielding the innocent on the other.

.We are of opinion that this assignment is well taken, and that the trial court erred in excluding evidence of the former testimony of the deceased witness.

The next assignment concerns the ruling of the court upon instructions. A brief statement of the essential facts of the case, with respect to which there is no serious conflict, will tend to elucidate the...