Reed v. Commonwealth

• Decision Date: 14 June 1900
• Citation: 98 Va. 817,36 S.E. 399
• Parties: REED. v. COMMONWEALTH.
• Court: Virginia Supreme Court

98 Va. 817

36 S.E. 399

REED.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 14, 1900.

HOMICIDE—COURT — JURISDICTION — PLEA OF NOT GUILTY—WITHDRAWAL—EVIDENCE—RES GESTÆ—INSTRUCTIONS—WITNESSES — OFFICER IN CHARGE OF JURY — ADMINISTERING OATH.

1. Transcribing on the minute book of the county court a judgment of the circuit court reversing a judgment of such court was a sufficient compliance with Code, § 4060, providing that the judgment of the appellate court shall be certified to the court to whose judgment the writ of error was allowed, which shall cause the same to be entered on its order book as its own judgment, and the county court had jurisdiction to retry such case.

2. The court's refusal to allow defendant to withdraw his plea of not guilty, and file a plea in abatement on the ground that two members of the grand jury who found the indictment against him were disqualified by reason of being overseers of the road, was a proper exercise of the court's sound discretion.

3. Where defendant, having shot deceased, was stopped by another, who, seeking to restrain him, was also shot by him, and killed, evidence of the other killing was admissible as part of the res gestæ.

4. How a bystander dodged or fell when shot by defendant, who was pursuing deceased, was irrelevant.

5. Where defendant, on trial for the murder of his wife, had testified as to having written her letters, in which he claimed to have reformed his habits, and wished to take her to live with him, evidence that defendant was drunk on his meeting with his wife and for some time previously was admissible in rebuttal.

6. The admission of evidence after the close of defendant's case, though not in rebuttal, was within the sound discretion of the court.

7. An instruction that, to sustain provocation as a defense to murder in the first degree, it must be shown that defendant, at the time of the killing, was deprived of the power of self-control by the provocation received, did not preclude the jury from finding defendant guilty of murder in the second degree, when taken in connection with other instructions defining murder in the first degree, and that a mortal wound without provocation is prima facie evidence of a willful and premeditated killing, and was not erroneous.

8. Where no provocation was shown for a homicide, refusal to give an instruction as to different degrees of provocation was not error.

9. Giving an instruction in a criminal case not applicable to the facts is not ground for reversal, unless the principle stated is erroneous, or might confuse or mislead a jury.

10. The fact that one of the deputy sheriffswho had charge of the jury in a criminal case was a witness for the state as to statements made to him by defendant is no ground for reversal of a conviction in such case.

11. Where the record showed that a jury, on adjournment from day to day, was placed in the custody of the proper officer of the court, but did not show that the usual oath was administered to him, a conviction will not be reversed because of such omission.

12. Where defendant, who had separated from his wife, visited her, and, after passing the day in a friendly manner, without provocation picked up a gun and shot her twice, a verdict of guilty of murder in the first degree will not be set aside as contrary to the law and the evidence.

Error from Madison county court.

Grant Reed was convicted of murder in the first degree, and he brings error. Affirmed.

J. L. Jeffries and C. F. McMullan, for plaintiff in error.

The Attorney General, for the Commonwealth.

CARDWELL, J. At the April term of the county court of Madison county, 1899, plaintiff in error was indicted for murder of his wife, Minnie Reed. He demurred to the indictment. His demurrer was overruled, and he was thereupon arraigned, and pleaded not guilty, and the case was set for trial on the 4th day of May next succeeding. The trial was then had, and a verdict of guilty of murder in the first degree was rendered, and the prisoner was sentenced to be hanged; but a writ of error was obtained from the circuit court, which set aside the verdict and awarded a new trial. At the July term of the county court the prisoner obtained a continuance of the case to the next term, in August, 1899, when he was again tried and convicted of murder in the first degree, whereupon he applied to the judge of the circuit court for a writ of error, which was refused, and the case is before us upon a writ of error awarded by a judge of this court.

When the case was called for trial at the August term, 1899, the prisoner objected to proceeding with it, on the ground that section 4060 had not been complied with, and therefore the case was not properly in the county court, which objection was overruled, and the prisoner excepted.

Section 4060 of the Code provides that the judgment of the appellate court shall be certified to the court to whose judgment the writ of error was allowed, which shall cause the same to be entered on its order book as its own judgment. In this case the judgment of the circuit court reversing the judgment of the county court was transcribed upon the minute book of the county court on the first day of its July term, 1899. We are of opinion that this was a substantial compliance with the provisions of section 4060 of the Code.

At the August term the prisoner moved the court to allow him to withdraw his plea of not guilty entered at the April term, and to permit him to file a plea in abatement, upon the ground that two members of the grand jury who found the indictment against him were disqualified by virtue of being overseers of the road. The overruling of this motion constitutes prisoner's second assignment of error.

It was said by this court in Early's Case, 86 Va. 924, 11 S. E. 795: "By pleading the general issue alone, a defendant has always been understood to waive the right to inter pose afterwards a plea in abatement. The settled doctrine, however, is that the judge may permit a pleading to be withdrawn, and another one to be substituted, wherever by so doing he does not violate any positive rule of law or of established practice. But such discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a merely dilatory or formal defense." In that case the identical exception was made to the disqualification of a grand juror as in the case at bar, but the court, after making the observation quoted, could not see "from the record that this discretion had been improperly exercised" by the trial court, and therefore held that there was no error in overruling the prisoner's motion.

In Curtis' Case, 87 Va 589, 13 S. E. 73, the same question was again under consideration by this court. There the prisoner upon his arraignment pleaded not guilty, upon which plea alone, as in the case at bar, the trial was had. The verdict was afterwards set aside, and a new trial awarded, and thereupon the prisoner undertook to contest the validity of the indictment on the ground that the grand jury had been improperly summoned. The court however, citing 1 Bish. Cr. Proc. § 756, and reaffirming its ruling in Early's Case, supra, held that "it is well settled that objections to the mode of summoning a grand jury, or to the qualifications of particular jurors, must be made at a preliminary stage of the case, —that is, before a plea to the merits; otherwise, they will be considered as waived, unless the proceedings be void ah initio."

After the general issue or any plea in bar it is too late to plead in abatement, except on leave to withdraw the former, because the plea in bar admits whatever is ground for abatement. To the same effect is the ruling of this court in Watson's Case, 87 Va. 612, 13 S. E. 22.

In U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857, it was held that, where the objection is founded upon the irregularity in summoning the panel, or upon the disqualification of particular grand jurors, it must be taken before pleading in bar. Says the court in that case: "It would be trifling with justice, and would render criminal proceedings a farce, if the rule were otherwise."

The exception upon which tills assignment of error is founded is wholly formal, and, taking fully into consideration the fact urgedby prisoner's counsel that he was comparatively a stranger among strangers when put upon trial for the offense of which he has been twice convicted, it in no way appears that the county court in any wise abused its sound discretion in overruling his motion to permit him to withdraw his plea of not guilty and enter his plea in abatement.

Before entering upon a consideration of the remaining assignments of error, it is needful to make a brief statement of this case.

The prisoner married the deceased in 1894, and they thereafter lived together unhappily in Pittsburg, Pa. In October, 1898, his wife came to Madison county, Va., upon a visit to her parents, where she remained until the homicide. The prisoner visited his wife in January, 1899, and upon this visit conducted himself in a very objectionable manner. His wife then refused to return to Pittsburg with him. On the 30th of March, 1899, he left Pittsburg for another visit to his wife in Madison county. He reached Culpeper on Saturday, April 1st, where he became intoxicated, and was so offensive that he was unable to obtain a conveyance to Madison until the afternoon of that day, and reached the house of his wife's parents about night, where he was received, and given supper, but was refused permission to spend the night. He spent the night at the home of a relation of the family near by, and returned to his father-in-law's the following morning in time for breakfast, and engaged in apparently friendly conversation with his wife before and after this meal. After breakfast, the prisoner, with his wife and child, took a walk into the woods, where they remained some two hours, and on return he ate dinner with his wife, and afterwards walked arm in...