Scott v. Commonwealth

• Decision Date: 17 September 1925
• Citation: Scott v. Commonwealth, 143 Va. 510, 129 S.E. 360 (1925)
• Parties: RAYMOND SCOTT v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 510

143 Va. 510

RAYMOND SCOTT v. COMMONWEALTH.

Supreme Court of Virginia, Staunton.

September 17, 1925.

1. APPEAL AND ERROR — Conflicts in Evidence. — The jury are the sole arbiters of direct conflicts of evidence, and unless there is no evidence in the case to support the verdict the issue as determined by the jury is final.

2. HOMICIDE — Self-Defense — Evidence to Support Verdict that Homicide was not in Self-Defense. — In the instant case, a prosecution for homicide, the evidence was clearly sufficient to warrant the conclusion that the defendant did not slay the deceased in defense of his life or limb, and there was ample evidence to support a verdict of guilty of murder in the second degree.

3. HOMICIDE — Self-Defense — Necessity — Misconduct of Defendant. — The law of self-defense is the law of necessity and the necessity relied upon to justify the killing must not arise out of the prisoner's own misconduct.

4. HOMICIDE — Self-Defense — Misconduct of Defendant — First Blow. — Although deceased struck the first blow, if this was brought about by defendant's misconduct, defendant cannot avail himself of the law of self-defense.

5. HOMICIDE — Self-Defense — Misconduct of Defendant. — The misconduct of defendant which will deprive him of the benefit of the law of self-defense is not confined to the physical acts of the chief assailant but contemplates, extends to, and includes such violent and indecent language as is well calculated to provoke a breach of the peace.

6. HOMICIDE — Self-Defense — Misconduct of Defendant — Insulting Words. — While words alone, however insulting or contemptuous, are never sufficient provocation to justify an assault, it should also be true that one who applies to another the most vile and opprobrious epithet known to mankind, and thus brings on the combat, should not be permitted to justify the killing of another in resisting an assult so provoked on the ground of necessity.

7. HOMICIDE — Provocation. — In no case will the plea of provocation avail the party, if it were sought for and induced by his own act, in order to afford a pretense for wreaking vengeance.

8. HOMICIDE — Murder — Malice. — To warrant the conviction of a defendant for the crime of murder it is essential that the Commonwealth shall show that the killing was done with malice.

9. HOMICIDE — Murder — Proof of Malice. — Malice may be shown by direct proof of malice, or malice may be presumed from the fact of killing, when the killing is unaccompanied by circumstances of palliation.

10. HOMICIDE — Malice — Deadly Weapon. — One of the canons of the criminal law is that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.

11. HOMICIDE — Degree of Homicide — Burden of Proof. — In a prosecution for homicide the burden is upon the defendant if he seeks to reduce the offense to voluntary manslaughter to prove that the act was committed without malice and in a sudden heat of passion.

12. HOMICIDE — Murder or Manslaughter — Case at Bar. — In the instant case defendant approached the conflict with deliberation. He invited the deceased to stop him, if he could, in the use of vile language against the deceased's father, and prepared for the encounter by laying aside his coat. Deceased was unarmed, and the provocation received by the defendant in being struck with the first was not such a provocation as warranted defendant in using a knife and slaying deceased. The killing therefore being unaccompanied by palliating circumstances was murder and not manslaughter.

13. HOMICIDE — Murder — Malice. — The malice necessary to constitute murder may be either express or implied.

14. HOMICIDE — Murder — Manslaughter — Sudden Heat of Passion. — In the instant case defendant provoked deceased to strike him by violent and indecent language directed at the father of the deceased. When deceased asked him to desist, defendant prepared for combat by laying aside his coat. Deceased was unarmed and in the ensuing struggle defendant killed him with a knife.

Held: That the homicide was not committed in a sudden heat of passion, and therefore without malice.

15. HOMICIDE — Arrest of Defendant's Companions — Res Gestae. — In a prosecution for homicide, the difficulty between deceased and defendant arose out of the arrest of defendant's companions by the father of deceased.

Held: That the arrest of the companions of defendant was a part of the res gestae and was subject to the fullest investigation.

16. HOMICIDE — Evidence — Injuries of Defendant. — In a prosecution for homicide, testimony of witnesses in regard to a hunt the Saturday night preceding the killing, on which defendant received a fall and sustained injuries therefrom, was admissible in rebuttal of the evidence of defendant that he received the injuries in the difficulty with deceased.

17. HOMICIDE — Evidence — Injuries of Defendant — Previous Intoxication of Defendant. — In a prosecution for homicide defendant claimed that he had received certain injuries from deceased at the time of the homicide. Several witnesses testified that he received the injuries in question while hunting on the previous Saturday, and that on that occasion he was intoxicated. It was argued that the alleged fact that defendant was intoxicated, as testified to by the witnesses, was calculated to prejudice the jury against him.

Held: That to require the court to segregate the question of intoxication from other evidence relative to a matter pertinent and material, was to place too great a burden upon the trial court. It was impossible to describe the occurrence without weaving into the same the subject of the intoxicated condition of the defendant.

18. HOMICIDE — Instructions — Self-Defense — Difficulty Provoked by Accused. — In a prosecution for homicide the court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant wrongfully provoked a difficulty with the deceased and thereby brought on the difficulty in which the defendant stabbed and killed the deceased, the jury cannot legally acquit the defendant on the grounds of self-defense.

Held: That while the verbiage of the instruction was amenable to criticism, the giving of the instruction did not constitute error.

19. HOMICIDE — Instructions — Concurrence of Twelve Minds. — In a prosecution for homicide the trial court refused to instruct the jury that the law contemplates a concurrence of twelve minds in the conclusion of guilt before a conviction can be had, and that this is not only true with respect to the guilt of the accused, but is likewise true with respect to the degree of the crime, and that it was not the duty of a juror who entertained a reasonable doubt as to the guilt of the accused, or as to the degree of the guilt of the accused, to surrender his convictions simply because the rest of the jury entertained different convictions.

Held: That while the instruction might probably, with propriety, have been given, the refusal to give it did not constitute reversible error.

20. JURY — Verdict — Conviction of Juror. — No juror should ever yield a conscientious opinion deliberately formed after a full and fair investigation of the case, as to the guilt or innocence of the accused, but jurors should not be invited to disagree.

21. HOMICIDE — Instructions — Self-Defense — Justification of an Assault. — In a prosecution for homicide, where the defense was self-defense and the Commonwealth showed that although deceased struck the first blow the difficulty was provoked by defendant, instructions that offensive or insulting words alone do not justify an assault, and that if the jury believed that offensive or insulting words were spoken by the defendant to deceased, they would not justify or excuse the deceased in striking or bringing on a difficulty with defendant, were properly refused as inapplicable to the instant case, although abstractly correct.

22. HOMICIDE — Argument of Counsel — Finding of Brass Knucks Near the Scene of the Homicide. — In a prosecution for homicide, where the defense was self-defense, remarks of counsel for the prosecution as to the finding of brass knucks near the place of the homicide, to the effect that the knucks were placed there for the purpose of fabricating a defense, and then found by a witness in an effort to corroborate the tale of the defendant that deceased had struck him with brass knucks, were not unwarranted and highly prejudicial to the defendant, as there was evidence supporting counsel's view.

23. HOMICIDE — Argument of Counsel — Drunkenness of Defendant. — In a prosecution for homicide counsel for the prosecution asserted in argument that defendant filled himself full of whiskey and went to deceased's home to talk about his father and thereby bring about a difficulty. The evidence disclosed that the difficulty occurred in close proximity to the house of deceased, and that defendant "seemed to be under the influence of liquor a little bit."

Held: That the remarks of counsel did not constitute reversible error.

24. ARGUMENT OF COUNSEL — Immaterial and Material Statements. — Courts ought not to reverse cases because counsel in the heat of argument sometimes wander a little way outside the record. If a matter of great materiality is brought into the record as a matter of extended comment, then there would be reason for setting aside the verdict. If every immaterial assertion or statement which creeps into an argument was to be held ground for reversal, courts would be so much occupied in criticising the addresses of advocates as to have little time for anything else.

Error to a judgment of the Circuit Court of Wise county.

The opinion states the case.

D. F. Kennedy, Morton & Parker and R. P. Bruce, for the...