Patterson v. Commonwealth

• Citation: 114 Va. 807,75 S.E. 737
• Parties: PATTERSON. v. COMMONWEALTH.
• Decision Date: 13 September 1912
• Court: Supreme Court of Virginia

75 S.E. 737

(114 Va. 807)

PATTERSON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 13, 1912.

1. Homicide (§ 216^*)—Dying Declarations —Admissibility.

To lay a foundation for the admission of a dying declaration, the commonwealth called a witness, who testified that decedent, when assisted, declared, "lay me down and let me die, " and called another witness, who testified that decedent said he felt poorly, and he did not reckon taking medicine would do any good, but that he would take it, and that decedent made no arrangements about dying, but talked about wanting to go to a hospital. The attending physician testified that decedent said that if nothing was done to relieve his pain he would die; that the physician relieved his pain; and that decedent said he rested easier. The wound inflicted on decedent consisted of a shot, which took effect in his right leg between the knee and body. He died in the evening of the day he was shot. Held not to show that decedent believed he was going to die; and declarations made by him were inadmissible as dying declarations.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. § 216.*]

2. Homicide (§ 214*)—Dying Declarations —Admissibility.

Dying declarations are only admissible as to the circumstances of the transaction itself which results in the death of declarant; and any self-serving statements must be excluded.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 448-450; Dec. Dig. § 214.*]

3. Homicide (§ 214*)—Dying Declarations —Admissibility.

A declaration by decedent, not confined to the transaction resulting in his death, but containing self-serving declarations as to his altitude toward accused and the daughters of accused prior to the date of the killing, is inadmissible.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 448-450; Dec. Dig. § 214.*]

4. Homicide (§ 214*) — Evidence—Admissibility.

Where the court erroneously admitted the declarations of decedent as to his conduct towards the daughters of accused, it was error to refuse to permit accused to contradict such declarations.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 44S-450; Dec. Dig. § 214.*]

5. Homicide (§ 300*) — Evidence—Instructions.

Where there was evidence of decedent's misbehavior towards accused and his two daughters, and that he had attempted an assault on one of the daughters, and that accused had been informed thereof before the killing, a charge that the jury might consider the evidence of the state of feeling between decedent and accused, preceding the killing, as throwing light on the situation and occurrences, was correct; and a charge that, though decedent had used insulting language to accused and his daughters, the same could not be considered, unless decedent was the aggressor, and that accused acted in self-defense, was erroneous.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*]

Keith, P., dissenting in part.

Error to Circuit Court, Rockbridge County.

R. V. Patterson was convicted of murder in the second degree, and he brings error. Reversed and remanded.

Greenlee D. Letcher, for plaintiff in error.

Samuel W. Williams, Atty. Gen., for the Commonwealth.

CARDWELL, J. At the September term of the circuit court of Rockbridge county, 1911, plaintiff in error was indicted for the murder of S. H. Campbell on June 30, 1911, and at that term of the court he was put upon trial; but the jury failed to agree upon a verdict. The case was again tried at the November term of the court, 1911, when the jury found a verdict of guilty of murder in the second degree, and fixed the accused's punishment at six years in the penitentiary, which verdict the court refused to set aside.

The assignments of error in the petition, upon which this writ of error was awarded the prisoner, relate (1) to the admission of improper evidence, (2) exclusion of evidence offered by the defense, (3) instructions given on behalf of the commonwealth and the rejection of instructions asked for by the defense, (4) refusal to set aside the verdict and award a new trial because of after-discovered evidence, and (5) refusal to set aside the verdict because contrary to the law and the evidence.

The deceased, it appears, moved to the house where he died about Christmas preceding the occurrence resulting in the wound inflicted by plaintiff in error upon him, which was followed by his death, and, according to evidence in the record unobjected to, from the time he went there he began to behave very badly towards plaintiff in error and his two daughters, who lived near him, growing out of the refusal of plaintiff in error to allow hunting on his lands. Plaintiff in error lived upon his own land with his two daughters, aged 16 and 17 years, respectively, whose mother died when they were about 12 years younger, since which time he had had the entire care of these girls, carrying them about with him until they became large enough for one to remain at home while the other went with him to work when he went to the fields. Deceased on numerous occasions, and whenever opportunity was afforded, not only used abusive language to plaintiff in error in the presence of his daughters, but behaved in the presence of the latter, when alone and unprotected, in the most indecent and shocking manner, using language too vile and indecent to be here repeated. There was evidence tending to show that on the morning of the day of the homicide plaintiff in error left his home accompanied by one of his daughters, each riding a horse, to go to his mountain land, one mile up South river, where he and his daughter had seen a ground hog the day before, and for the purpose of killing it carried his double-barrel gun loaded with large shot; that when they reached the turn of the road at which the deceased's house, situatedseveral hundred yards off, could be seen they observed him standing in the door, where he remained until they got opposite his house, when he came down to the railroad and disappeared behind a sycamore and other trees in foliage at the time, after which plaintiff in error and his daughter neither thought nor saw anything more of the deceased until about 100 yards further on, when they turned back at an acute angle into plaintiff in error's right of way leading across the railroad up to his mountain land, at which time they saw the deceased, looking mad, step off the railroad down towards them, muttering something which could not be understood because of the roar of the river, and thereupon plaintiff in error told the deceased to go away and not give him any trouble; that deceased then cursed plaintiff in error and told him "he had to take it, that he had it in for him, " and threw a rock which came close to plaintiff in error's head, and came on, quickly throwing another rock, which also nearly struck him, which rocks deceased took from his pockets or from under his overall flap, and then came to the gate, which was about 13 steps from the railroad, and picked up another large rock and started to rise, with his left hand extended towards the latch of the gate, saying, "Damn you, I will come through and kill you this morning;" whereupon plaintiff in error lowered his gun and shot one barrel of it through the gate at deceased's legs, the shot taking effect in his right leg between the knee and the body. Plaintiff in error fired but one barrel of his gun, and the deceased, after standing a moment, dropped the rock from his hand and walked back towards his home, and, when about 75 yards or about half the distance to his house, laid down by the railroad track, from which point he was later carried to his home, where he died about 7 o'clock that evening.

The court is of opinion that the dying declarations of the deceased, allowed to go to the jury at the trial over the objection of plaintiff in error, were improperly admitted in evidence, (1) because it was not clearly shown that the deceased believed he was going to die when these declarations were made; and, (2) even if the deceased had believed he was going to die at the time he made the declarations narrated by the witness Painter, some of the statements said to have been made by the deceased were not a part of the res gestæ; nor did they relate to the transaction itself which resulted in the declarant's death.

The commonwealth introduced one B. D. Armstrong as a witness, who testified, over objection by plaintiff in error, that he was a brakeman on the train of the Norfolk & Western Railway Company which came along about 7:25 o'clock a. m. on the morning that deceased was shot, and saw him by the railroad, his wife and children and one Gerald being with him, and he asked wit ness to help him up, and upon witness doing so (presumably) deceased said, "Lay me down and let me die." This was nothing more than a simple exclamation on the part of the deceased, actuated doubtless by the sensation of pain and suffering at the time in his wounded leg, but in no wise proves that he thought he was going to die, and threw no light whatever, as we shall presently see, on his frame of mind five or six hours after, when the so-called "dying declarations" under consideration were made.

The witness Painter, a brother-in-law of deceased, alone testifies as to the dying declarations of the deceased admitted in evidence, and as far as pertinent his statement is: "After I got my dinner, I went back to Campbell's and stayed there until about 2 o'clock, when I went to Vesuvius, and when I got back later in the evening Campbell was dying. When I got back to Campbell's (about 2 o'clock) after arresting Patterson, I told him what Patterson said about him throwing the rocks, and Campbell said that there had been no trouble between him and Patterson, and he asked me whether Patterson said that he had thrown any rocks. Says he, 'Did he say that?' and Campbell then said that he had been telling him [Painter] all day that he was going to die, and...