Read v. Commonwealth

• Decision Date: 11 December 1872
• Citation: 63 Va. 924
• Parties: READ v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

63 Va. 924

READ v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 11, 1872

1. Though the bill of exceptions taken to the refusal of the court to grant a new trial, purports to certify the facts yet it may appear from the bill of exceptions itself, that the evidence is certified. And this is shown when the facts certified are contradictory.

2. In such case where the evidence is certified, the appellate court will not reverse the judgment, unless after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court below shall appear to be wrong.

3. Whether a prisoner on trial is guilty of malicious shooting with intent to kill, depends upon the question, whether if he had killed the person at whom he shot, instead of only wounding him with intent to kill him, the offence would have been murder.

4. If the killing would not have been murder, then he is not guilty of the offence of malicious shooting, however he may have been guilty of another offence; as of unlawful shooting with intent to kill.

5. Every unlawful homicide must be either murder or manslaughter; and whether it be the one or the other depends alone upon, whether the party who perpetrated the act did it with malice or not--malice either expressed or implied.

6. Where there has been a previous grudge and also an immediate provocation, it is for the jury to determine whether the shooting was induced by the previous grudge or the immediate provocation; and it is not for an appellate court to reverse their judgment; which the judge who tried the case, declines to set aside.

7. For the principles by which an appellate court will be governed in considering the question of reversing the judgment of the court below refusing to grant a new trial, on the ground that the verdict is contrary to the evidence, see opinion of Moncure, P.

8. To authorize the granting a new trial on the ground of afterdiscovered evidence, four things are necessary: 1st. The evidence must have been discovered since the former trial 2d. It must be such as reasonable diligence on the part of the party asking it, could not have secured at the former trial. 3d. It must be material in its object, and not merely cumulative and corroborative, or collateral. 4th. It must be such as ought to produce, on another trial, an opposite result on the merits.

9. As a general rule the evidence of jurors is not admissible to impeach their verdict.

10. On the trial of a prisoner for a felony, which lasts several days, the sheriffs are sworn to keep the jury and not allow them to be spoken to, or to speak to them themselves in relation to the case. In the progress of the trial one of the deputies is called by the Commonwealth, and gives evidence of a fact which had occurred in his presence; and the same fact had been proved by other witnesses. This is not sufficient grounds for setting aside the verdict.

11. Sunday is not to be counted as one of the days of the term of a court.

At the August term 1872, of the County court of Bedford county Harold P. Read was indicted for feloniously and with malice aforethought shooting George S. Merriman, with intent to maim, disfigure, disable and kill him. The prisoner was tried at the September term of the court, and the trial lasting for three days, on each day, when the court was about to adjourn the sheriff and his two deputies were sworn to keep the jury and neither speak to them themselves nor suffer any other person to speak to them touching any matter relative to the trial, until they return into court. On the third day the jury found the prisoner guilty, as charged in the indictment and fixed the term of his imprisonment in the penitentiary at two years.

After the verdict was rendered the prisoner moved the court for a new trial, on the grounds, first, that the verdict was contrary to the evidence; second, because of after-discovered evidence; third, because the jury were influenced in making up their verdict by improper considerations, not admissible under the evidence, and not warranted by it; and, fourth, because the jury were committed to the custody of a deputy sheriff who had testified to material facts on behalf of the Commonwealth on the trial. But the court overruled the motion; and the prisoner excepted.

The bill of exceptions purports in its commencement, to state the facts proved on the trial. It names each witness for the Commonwealth and sets out what he proves; and at the end of these statements, it says the foregoing being all the facts proved in chief on behalf of the Commonwealth, it was then proved on behalf of the prisoner; and then it names each witness for the prisoner and sets out what he states, and after giving them, says, the foregoing being all the facts proved on behalf of the prisoner, & c. But the statements of the witnesses are in some respects contradictory. The testimony is sufficiently set out in the opinions of Judges Moncure and Anderson.

The prisoner was brought into court on the 11th of September to receive his sentence, when he moved the court in arrest of judgment, on the ground that the term of the court at which the prisoner was tried had ended, and it was not competent for the court to enter up judgment on the verdict. But the court overruled the motion, and sentenced the prisoner in accordance with the verdict; and the prisoner excepted. It appeared that the term of the County court of Bedford, at which the prisoner was tried, and the verdict found against him, commenced on Tuesday the 27th of August 1872, and had continued thence up to the 11th of September, and still continued. That the court was held every day during the term except Sundays, and except Saturday the 31st of August and Tuesday the 10th of September, on which days the court was not held. The court adjourned from Friday the 30th of August to the next day thereafter, and did not sit until Monday the 2d of September. It adjourned on Monday the 9th of September and did not sit again until the 11th.

The prisoner obtained a writ of error to the Circuit court of Bedford county; but that court affirmed the judgment of the County court. And the prisoner thereupon applied to this court for a writ of error; which was allowed.

T. N. Williams and Wm. & J. Daniel, for the prisoner.

The Attorney General, for the Commonwealth.

MONCURE, P.

This is a writ of error to a judgment of the Circuit court of Bedford county, affirming a judgment of the County court of said county, convicting the plaintiff in error, Harold P. Read, of maliciously shooting one George S. Merriman, with intent to maim, disfigure, disable and kill him. The questions arising in the case are presented by two bills of exceptions, taken by the plaintiff in error in the course of the proceedings in the County court; one of them to the opinion of said court overruling the motion of the prisoner to set aside the verdict of the jury and grant him a new trial, upon various grounds set out in the first bill of exceptions; and the other, to the opinion of said court overruling the motion of the prisoner to arrest judgment on said verdict, upon the ground set out in the second bill of exceptions. I will consider these questions in their order; and first those which arise on the first bill of exceptions.

The motion to set aside the verdict and grant a new trial was based upon four grounds, viz: 1st. That the verdict of the jury was against the law and the evidence in the cause.

2nd. Because, since the rendering of said verdict the prisoner had discovered important evidence, which he could not have before discovered by reasonable diligence, material to his defence on said trial; and which, if given in before the jury, ought, and would, have produced a different verdict from the one found.

3rd. Because the jury were influenced in making up their verdict by improper considerations, not admissible under the evidence, and not warranted by it.

4th. Because of the improper and irregular treatment of the jury during the trial, by being committed, after they were sworn and during the trial, to the custody, and exposed to the influence, of a deputy sheriff, who was a witness, and had testified to material facts on behalf of the Commonwealth on said trial.

Ought the verdict to have been set aside and a new trial granted on either of these four grounds; and,

1st. That the verdict was against the law and the evidence.

In considering this ground it may be material, first, to enquire whether the facts proved, or only the evidence introduced, on the trial, are certified in the bill of exceptions. While it is well settled that an appellate court may revise a judgment of the court below, refusing a new trial on the ground that the verdict is contrary to evidence, even in a criminal case in behalf of the accused; yet it is also well settled that the bill of exceptions must so present the case as that the appellate court may be able to see whether the jury has correctly applied the law to the facts of the case, and to correct any error which the jury may have committed in that respect. Regularly, the facts, instead of the evidence, ought to be certified in the bill of exceptions; and where there is a conflict or complication of evidence, the court may, on that ground, be unable or unwilling, and, therefore, refuse, to certify the facts; and then the appellate court cannot revise the judgment, unless the evidence be certified, and then only on certain conditions. That is, the court will not in that case reverse the judgment, unless, after rejecting all the parol evidence for the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court below still appears to be wrong. ...