Robertson v. Commonwealth.1

• Decision Date: 08 November 1894
• Parties: ROBERTSON. v. COMMONWEALTH.1
• Court: Virginia Supreme Court

20 S.E. 362

ROBERTSON.

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Nov. 8, 1894.

Homicide — Inconsistency in Indictment — Instructions—Degree or Crime—Attempted Robbery.

1. An indictment for murder, which describes the wound in one place as above the nipple of the left breast, and subsequently as below the nipple of the left breast, is not void for repugnancy and inconsistency, as the latter recitation is surplusage, and covered by section 3999, Code, which provides that indictments shall not be void for the omission or insertion of "words of mere form and surplusage."

2. Section 3978, Code, does not require a special grand jury to be selected from a list of 48 men. prepared by the judge of the county court, in August of each year, to serve for the ensuing year.

3. On an indictment for murder simply, one may be convicted of murder in the commission of, or attempt to commit, robbery.

4. Murder is the unlawful killing of another with malice.

5. Every homicide is presumed to be murder in the second degree, and it is for the state to show that it was murder in the first degree, and for defendant to show that it was manslaughter.

6. One who kills another in the attempt to commit, or commission of, robbery, is guilty of murder in the first degree.

7. Where the evidence, and not the facta proved, is certified in the record, the case on appeal stands as upon a demurrer to evidence, under Acts 1889-90, p. 30.

Error to circuit court, Franklin county; S. G. Whittle, Judge.

William Robertson was convicted of murder, and brings error. Affirmed.

Anderson & Hairston, for plaintiff in error.

R. F. Scott Atty. Gen., for the Commonwealth.

FAUNTLEROY, J. William Robertson, the plaintiff in error, was indicted at the February term of the county court of Franklin county of the murder of Jerry Barbour, and he was tried upon the said indictment at the December term, 1892, of the said court, and was found guilty by the jury of murder In the first degree; and on the 19th day of December, 1892, he was sentenced by the said court to be hanged by the neck until he is dead. To this judgment he petitioned the circuit court of Franklin county for a writ of error, upon the exhibition, as a part of his said petition, of a transcript of the record of the said trial in the said county court, and errors assigned. The writ of error prayed for was denied by the judge of the circuit court of Franklin county, whereupon a writ of error was allowed by one of the judges of this court. In refusing the petition for a writ of error, the judge of the circuit court of Franklin county (Judge S. G. WHITTLE) delivered an elaborate and carefully considered opinion, upon the record and errors assigned and points raised and discussed in the petition and argument by counsel, in which said opinion this court fully concurs in all points, and adopts the same as the opinion of this court for affirming the judgment of the county court aforesaid, and the denial of the writ of error by the said circuit court of Franklin county.

The opinion of WHITTLE, J., refusing the appeal, was as follows:

"I have carefully considered the record in this case, and the points raised and discussed by counsel in the petition for a writ of error, and will comment on them very briefly, in the order in which they are presented.

"First It is contended that the demurrer to the indictment should have been sustained because of a repugnancy and inconsistency of averment in the description of the wound which caused the death of the deceased, Jerry Barbour, —the charge being, in one part of the indictment, that the wound was above the nipple of the left breast, and, In another part, that it was below the nipple of the left breast; and Dias v. State, 39 Am. Dec. 448, Is relied on to sustain this contention. The general rule is conceded that pleading must not be in sensible, inconsistent with itself, or repugnant. But there is this exception: that if the allegation which creates the repugnancy Is merely superfluous or redundant, so that it may be rejected without altering the general sense and effect, it should be rejected, the maxim being 'Utile per. inutile non vitiatur'; and this principle has been incorporated in our statute law. Code, § 3999, in designating what defects in indictments shall not vitiate them, concludes: 'Or for the omission or insertion of any other words of mere form and surplusage.' In Sledd's Case, 19 Grat 819, Judge Joynes, in delivering the opinion of the court, in commenting on this statute, says: 'The provisions of this section were designed to get rid of cumbrous and useless technicalities, and ought to receive a liberal construction.' In pleading, surplusage is the allegation of unnecessary mat ter. The foundation of the rule requiring the place of the wound to be alleged in an indictment was to enable the court to see that it was of such a nature that death might have ensued from it. In this case the first part of the count charges the manner and location of the wound. It was inflicted with a deadly weapon in a vital part of the body, 'just above the nipple of the left breast, ' and it was unnecessary to repeat in the same count the location of the wound. The averment that the shot gave the deceased a mortal wound, of which he then and there died, etc., was sufficient; and the words, 'just below the nipple of the left breast, ' were unnecessary, and might have been omitted without impairing the general sense and effect of the charge, and should therefore, under the statute, be rejected as surplusage. The propriety of this view is the more...