Smith v. Commonwealth

• Decision Date: 29 November 1871
• Parties: SMITH v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 809

SMITH v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 29, 1871

1. In an indictment for murder, the death of the murdered person may be laid in several counts, as having been occasioned in different and inconsistent modes.

2. On a trial for murder, the death of the person charged to have been murdered, must be proved by the most cogent and irresistible evidence; either by witnesses who were present when the murderous act was done, or by proof of the body having been seen dead, or by proof of criminal violence adequate to produce death, and which accounts for the disappearance of the body.

3. The proof must show that a body found is the body of the person for whose murder the prisoner has been indicted and is tried.

4. Until there is clear proof of the death of the person for whose murder the prisoner has been indicted and tried, the admissions of the prisoner as to his having committed the act must be clear and explicit. If there may be doubt as to his meaning, he ought not to be convicted.

In January 1871, Newton Smith, a man of color, was indicted in the Corporation court of Alexandria, for the murder of an infant, the child of Harriet Ferguson. The indictment contained two counts. The first charged that the murder was committed by casting the child into a pond of water, whereby it was drowned: and the second count charged that the murder was committed by the putting of the child in a hole in a bleak open place, and there leaving it; of which exposure it died.

The prisoner demurred to the indictment; but the court overruled the demurrer: and he then pleaded not guilty.

On the trial, after all the evidence had been introduced, the prisoner moved the court to give several instructions to the jury; which motion the court overruled; and gave other instructions. To which ruling of the court, in refusing to give the instructions asked for, and in giving others, the prisoner excepted. It is only necessary to state the instruction asked, and that given, in relation to the confessions of the prisoner, which constituted a very important part of the testimony for the Commonwealth. The prisoner's first instruction was: That in weighing the evidence in regard to the confession of the prisoner, the whole confession must be taken as true, unless the part of such confession tending to his exculpation is rebutted by distinct and independent testimony. The sixth instruction given by the court was: That the whole of the conversation of the prisoner with Mr. Latham (the mayor of the city), as well the statements which may be favorable as those which may be unfavorable, are in evidence before you; and you will give to them such weight as upon a consideration of all the evidence in the case, and of all the probabilities or improbabilities of such statements, you may deem them entitled.

The jury found the prisoner guilty of murder in the first degree. And thereupon he moved the court for a new trial, on the ground of error in the rulings of the court in relation to the instructions; and also because the verdict was contrary to the law and the evidence. But the court overruled the motion, and sentenced the prisoner to be hung: and he applied to a judge of this court for a writ of error; which was awarded. The only question on the evidence was, whether the body of the child found was that of the child of Harriet Ferguson; and that depended upon what was said by the prisoner. This is stated by Judge Christian in the opinion delivered by him.

Stuart, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

CHRISTIAN J.

Newton Smith was indicted by a grand jury of the Corporation court of the city of Alexandria, on the 16th day of January 1871 for the murder of the infant child of one Harriet Ferguson. At the February term of said court he was found guilty of murder in the first degree, and was sentenced to be hung on the 21st day of April 1871. A writ of error to that judgment brings the case before this court. The first error assigned, in the petition for a writ of error, and insisted upon here, is that the court overruled the prisoner's demurrer to the indictment. The indictment contained two counts.

The first count charges the prisoner with the murder of the said infant child by drowning in a pond of water. The second count charges him with the murder of the child by placing it in a hole, in a bleak, barren and open place, and leaving it there exposed to the inclemency of the weather, by means of which exposure the child died. These two causes of death are set out with technical precision in approved forms of counts, in an indictment for murder.

It is a well settled principle of criminal pleading and practice, that several modes of death, inconsistent with each other, may be set out in the same indictment. This grows out of the very necessity of the case. The indictment is but the charge or accusation made by the grand jury with as much certainty and precision as the evidence before them will warrant. In many cases the mode of death is uncertain, while the homicide is beyond question. Every cautious pleader, therefore, will insert as many counts as will be necessary to provide for every possible contingency in the evidence. If the mode of death is uncertain, he may and ought to state it in different counts, in every possible form to correspond with the evidence at the trial as to the mode of death. The reason for this is thus clearly stated by Chief Justice Shaw in Bennis' Webster Case, 471: " To a person unskilled and unpracticed in legal proceedings, it may seem strange that several modes of death inconsistent with each other should be stated in the same document; but it is often necessary, and the reason for it when explained, will be obvious. A grand jury may well be satisfied that the homicide has been committed, and yet the evidence before them may leave it somewhat doubtful as to the mode of death; but in order to meet the evidence as it may finally appear, they are very properly allowed to set out the mode in different counts; and then if any one of them is proved, supposing it also to be legally formal, it is sufficient to support the indictment. Take the instance of a murder at sea: A man is struck down, lies sometime on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainty of a homicide by the blow or by the drowning, but leaves it uncertain which. That would be a fit case for several counts charging a death by a blow, and a death by drowning, and perhaps a third alleging a death by the joint results of both causes combined." See also 1 Wharton's Am. Criminal Law, and cases there cited, §§ 424, 425.

So in the case at bar, it being uncertain whether the homicide charged in the indictment was caused by exposure or drowning, it was certainly allowable to charge both modes of death in different counts, and proof of either would be sufficient. The court is, therefore, of opinion that the said Corporation court of the city of Alexandria was not in error in overruling the demurrer to the indictment.

The court is further of opinion, that the said Corporation court did not err in refusing to give the instructions asked for by the prisoner's counsel. Some of these instructions contain propositions which are in contravention of well settled principles of criminal law; while in others, principles of law are stated in such a manner as is well calculated to mislead the jury. The court was therefore clearly right in rejecting them.

Nor was the said Corporation court in error, in giving the instructions which it gave in lieu of those asked for by the prisoner's counsel. These instructions comprehend in better form every one asked for by the prisoner's counsel, which ought to have been given, and very clearly and fairly lay down the principles of law governing such a case.

But the court is further of opinion, that the said Corporation court erred in refusing to set aside the verdict and grant to the prisoner a new trial.

The principles upon which courts are justified and required to set aside verdicts and grant new trials have been well settled by this court, and recently re-affirmed in the case of Blosser v. Harshbarger, decided at the last Staunton term.

A new trial ought to be granted--1st. Where the verdict is against law. This occurs where the issue involves both fact and law and the verdict is against the law of the case on the facts proved. 2d. Where the verdict is contrary to the evidence. This occurs where the issue involves matters of fact only, and the facts proved require a different verdict from that found by the jury. 3d. When the verdict is without evidence to support it. This occurs where there has been no proof whatever of a material fact, or not sufficient evidence of the fact or facts in issue to warrant the finding of the jury. The material fact in every criminal prosecution is the corpus delicti. Proof of the charge, in criminal causes, involves the proof of two distinct propositions; first, that the act itself was done; and secondly, that it was done by the person charged. In murder the corpus delicti has two components--death as the result, and the criminal agency of another as the means. It is only where the first (that is, death by criminal violence,) has been proved either by the direct evidence of witnesses whe have seen and identified the body, or where proof of the death is so strong and intense as to produce the full assurance of moral certainty, that the other (the criminal agency) can be established by circumstantial evidence. In order to warrant a conviction of...