Pippin v. Commonwealth

• Citation: 117 Va. 919,86 S.E. 152
• Court: Virginia Supreme Court
• Decision Date: 09 September 1915
• Parties: PIPPIN. v. COMMONWEALTH.

86 S.E. 152

117 Va. 919

PIPPIN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Error to Circuit Court, Russell County. Charles Pippin was convicted of manslaughter, and he brings error. Affirmed.

Plaintiff in error, Charles Pippin, was tried at the February term, 1915, of the circuit court of Russell county upon an indictment for the murder of William R. Dorton. The jury found the accused guilty of voluntary manslaughter, and ascertained the term of his confinement in the state penitentiary at two years, and the court sentenced him accordingly. To that judgment this writ of error was granted.

Two bills of exception were taken at the trial, and two grounds of error are assigned here:

I. The first assignment involves the action of the court in admitting as evidence the dying declarations of the deceased.

II. The second assignment alleges that the verdict of the jury is contrary to the law and the evidence.

There is a singular lack of conflict in the testimony of the witnesses. The material divergence arises out of the opposing theories of the case. The contention of the commonwealth, founded on the dying declarations of the deceased, being that the homicide was intentional, while that of the accused, based on his own testimony, is that it was accidental.

A summary of the facts will throw light on the situation and relations of the parties. They are fairly stated in the brief of the Attorney General and his assistant as follows:

"The deceased, W. R. Dorton, known as 'Buck Dorton, ' and the plaintiff in error, Charles Pippin, were second cousins and had, up to the date of the tragedy, been good friends. About 5 o'clock on the afternoon of December 27, 1913, Buck Dorton and David Powers, a tenant of the former, met Charles Pippin and Homer Dor-ton, the nephew of Buck Dorton, and went out to the latter's barn, where he treated them to one or two drinks of whisky. After standing around for a few minutes, they went to Homer Dorton's house. There Buck Dorton proposed that they should have a hot drink, so Homer Dorton brought out a jug of liquor and they had several rounds of hot drinks. In the meanwhile, David Powers' children, Roller Powers, aged 13, and Beecher Powers, came for their father. After having several drinks, different members of the party began swapping leggings and watches and finally Charles Pippin proposed a game of crackaloo. Buck Dorton and Charles Pippin pitched the game, and Dorton won. Later on, Pippin made a proposition to David Powers to pitch a game of crackaloo for 20 cents owed by Pippin to Powers. Upon David Powers' refusal to pitch, the proposition was made to allow his son Beecher to pitch with Charles Pippin, but upon demurrer on his part, Buck Dorton proposed to Beecher Powers to pitch for him, giving him 25 cents for the purpose. It was agreed that Buck Dorton should call the pitch, and that there should be no measurement. Upon Buck Dorton's calling the pitch a tie, Pippin claimed that he was nearer the crack and started to measure, whereupon Buck Dorton said there was to be no measurement. Pippin replied, 'Yes, ' whereupon Dorton said, 'I don't think so, Charlie, ' and Pippin said, 'You are a liar.' Dorton set down his lantern and slapped Pippin over on the bed. After the fracas was quieted down by Homer Dorton and David Powers, the two got into an argument, and again Buck Dorton slapped Pippin, grabbed him by the throat, and pitched him on the floor, whereupon Pippin said, 'If you were over on the hill, you could not do me this way.' Dorton replied, 'Use your little gun.' Pippin answered, 'I ain't got none, ' whereupon Dorton said, 'I will furnish you a gun, load it, and go with you anywhere you want to.' Then Dorton went over to a corner of the room, picked up an old shotgun which was there, brought it over to a small table, and loaded it, putting in two cartridges. There was only one hammer to the gun; the left being off. He then crossed to where Pippin was and gave him the gun, which was taken by Pippin in his hands. Immediately all who were present, except the two principals, left, Powers and his two boys going out of the front or north door of the room and Homer Dorton going through the south or back door of the room into the dining room. As Homer Dorton went through the back door, he heard the noise of a shell dropping on the floor and, turning around, saw Buck Dorton leaning with his right side against the door shutter and Pippin on the front porch with the gun broken and kneeling down, as if searching for something. Homer Dorton continued a little further, and the gun was fired. When he went back into the room, Buck Dorton said: 'I am a dying man; that cowardly son of a bitch shot me'— and Pippin said, 'Lord have mercy on me! I have killed Buck Dorton, ' and ran crying across the hill, taking the gun with him and dropping it in a field across the road.

"Powers and his boys had gotten about 75 yards from the house when the shot was fired. Homer Dorton went after Buck Dorton's wife and met her on her way to the house. As soon as she got into the 'door she said, 'Will, what on earth is the matter?' Buck Dorton replied, 'I am killed!' and, being asked who killed him, he replied, 'Charles Pippin.' His wife then said, 'Will, I hate for you to leave me.' He said, 'I hate to leave you, but do the very best you can.' When asked by neighbors whether the shooting was accidental or intentional, he said, 'He done it a-purpose.'

"The load entered Dorton's right side, about six inches below the armpit, making a round hole, passing through the liver and right lung, ranging slightly upward. It was a clear wound and the shot did not scatter. Dorton lived less than three-quarters of an hour."

The witness B. H. Salyer testified to the dying declarations as follows:

"A. After I had examined the wound, I saw there was no blood on the outside. I stepped back to Mr. Vermillion and told him he was a dead man; that we could not do anything for him, and then we decided that we would ask him who done it. I went then and asked him who shot him.

"Q. Just state the conversation as it occurred.

"A. I asked him who shot him, and he said Charles Pippin, and I asked him if it was accidental, or did he do it purposely, and he said, 'Done it a-purpose.'

"Q. What did he say about getting well?

"A. I says to him, 'Perhaps you are not hurt as bad as you think you are? He says, 'Yes; I am a dead man.' About that time we could hear the gurgling of blood on the inside. He turned his head over and says, 'Listen at that; I am a goner.' I says, 'Anything you want us to do?' and he says, 'Nothing you can do for me.' He says, 'Get the fellow that shot me if it takes all I have got.' * * *

"A. His wife and perhaps some of the other relations tried to get him to pray, or something like that, get ready to die, and he said, 'No; it was too late.' You know about what conversation would go on in a case like that. * * *

"Q. Did he say he wanted the durned rascal or durned son of a bitch caught?

"A. Perhaps he did say he wanted the rascal caught that shot him—'It was a low-down, dirty, cowardly trick, ' or something like that.

"Q. Something of that sort?

"A. Yes.

"Q. Did he use the words, 'durned rascal, ' or, 'durned son of a bitch'?

"A. I won't say that he did. I don't believe he did. He said, 'It was a low-down, dirty, cowardly trick.' "

The statement of A. B. Vermillion, in respect to the dying declarations, substantially corroborates the testimony of Salyer.

The accused testified that the shooting was accidental, and occurred as follows:

That he "meant to step out of the door, I meant to get the shells out and got one out, and it fell on the floor, and Buck reached out and grabbed the gun and jerked it, and the gun fired."

He represents himself at the time as standing with one foot on the porch floor and the other on the doorsill, 10 inches higher; that he had the gun "broke down" to remove the shells, when Dorton seized the barrels with his right hand, discharging the gun and inflicting the wound which caused his death.

Finney & Wilson and W. W. Bird, all of Lebanon, for plaintiff in error.

The Attorney General, for the Commonwealth.

WHITTLE, J. (after stating the facts as above). As remarked in the statement of facts, there are but two assignments of error, and they will be considered in the order of their statement.

I. Were the dying declarations of the deceased admissible evidence?

The doctrine of the admissibility of dying declarations as evidence is confined to eases of homicide where the death of the declarant is the subject of inquiry. It con-stitutes an exception to the general rule which excludes the admission of hearsay evidence, and is justified on grounds of public necessity. Such declarations were admissible at common law.

In 1 East's Pleas of the Crown, p. 153, it is said:

"Evidence of this sort is admissible on the fullest necessity; for it happens that there is no third person to be an eyewitness of the fact, and the usual witness in occasions of other felonies, namely, the party injured himself, is gotten rid of."

In a note to 1 Greenleaf on Evidence (14th Ed.) § 156, it is stated that Rex v. Reason, 1 Strange, 499. (14 How. St. Tr. 1) decided in 1722, is the earliest reported English case on the subject. As is now well known, the doctrine is ingrafted on the jurisprudence of the United States and of all the states of the Union.

In Bull's Case, 14 Grat. 620, it is said: "To render dying declarations admissible evidence, they must be shown to have been made when the declarant is under a sense of impending death, and without any hope or expectation of recovery. Whether so made or not is a preliminary question to be determined by the court on all the circumstances of the case." Vass' Case, 3 Leigh, 786, 24 Am. Dec. 695; Hill's Case, 2 Grat. 595. But, when admitted, the weight or credit to which such declarations are entitled is a question for the jury.

The testimony of Salyer and...