Smith v. Commonwealth, Record No. 3110.
| Decision Date | 25 November 1946 |
| Docket Number | Record No. 3110. |
| Citation | 185 Va. 800 |
| Court | Virginia Supreme Court |
| Parties | GRACE M. SMITH v. COMMONWEALTH OF VIRGINIA. |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.
1. APPEAL AND ERROR — Affirmance — Where There Is Credible Evidence to Support Findings. — Unless the verdict of a jury is without credible evidence to support it, their findings should not be disturbed even though if the Supreme Court of Appeals had been the trier of the facts it would not have so found.
2. HOMICIDE — Corpus Delicti — Burden of Proof — Case at Bar. — In the instant case, a prosecution for homicide, defendant claimed that the physical facts and conditions established beyond question that deceased committed suicide and that there was no other criminal agency. The Commonwealth did not by its evidence eliminate every possibility of death by suicide.
Held: That to eliminate every possibility of death by suicide was not the measure of the burden upon the Commonwealth. It must prove criminal agency as it must prove the identity of the criminal agent, beyond all reasonable doubt.
3. HOMICIDE — Corpus Delicti — How Established. — Direct evidence is not essential to prove the corpus delicti in any case. It may be proved as any other fact may be proved which is essential to establish the guilt of the accused, namely, by circumstantial evidence which produces the full assurance of moral certainty on the subject.
4. HOMICIDE — Questions for Jury — Proof of Corpus Delicti — Case at Bar. — In the instant case, a prosecution for homicide, it was conclusively shown that death was not due to natural causes. The defense was based on the theory of suicide, but the chain of circumstances disclosed by the evidence combined to eliminate the theory of suicide and was sufficient to convince the jury beyond all reasonable doubt that the deceased was killed by other than his own hands.
Held: That, under the circumstances, it was for the jury to determine whether or not the corpus delicti had been established.
5. HOMICIDE — Evidence — Sufficiency to Suport Verdict — Case at Bar. — In the instant case, a prosecution for homicide, it was conclusively shown that death was not due to natural causes. The defense was based on the theory of suicide, but the chain of circumstances disclosed by the evidence combined to eliminate the theory of suicide and was sufficient to convince the jury beyond all reasonable doubt that the deceased was killed by other than his own hands.
Held: That since the jury determined that death was caused by a criminal agency and there was sufficient evidence to support the verdict on this question, the Supreme Court of Appeals should not overrule that finding and substitute its own finding on the weight of the evidence if that should be a different opinion.
6. HOMICIDE — Sufficiency of Evidence — Presence of Wife in House When Husband Met Death — Case at Bar. — In the instant case, a prosecution for homicide, the evidence showed only that defendant, wife of deceased, was in the house when her husband met his death, and that she either did not tell what she knew about it, or gave different accounts of what she did know about it. These differences in accounts involved more a withholding of information than contradictory statements of fact. None of them disclosed that she played any part in any sort of assault on her husband that caused his death.
Held: That it was only by conjecture that it might be said that defendant took any part in the homicide, and she should not be convicted on such supposition.
7. EVIDENCE — Inferences — Must Be Based on Facts. — In order for inferences to amount to evidence they must be inferences based on facts that are proved, and not inferences based on other inferences.
8. AIDING AND ABETTING — Mere Presence and Consent Alone Insufficient. — The mere presence of a party when a crime is committed and his consent thereto is no crime, if he was not aiding, abetting, counselling or advising its commission, and was not present for that purpose.
9. CRIMINAL LAW — Presumption of Innocence — Continues Throughout Trial. — Except as modified by statute the accused, in a criminal case, is presumed to be innocent until his guilt has been proven beyond a reasonable doubt, and the burden of proof of guilt is upon the Commonwealth. This burden continues throughout the trial and never shifts.
10. CRIMINAL LAW - Presumption of Innocence — Strength. — In criminal cases the presumption of innocence is so strong that not only is the accused entitled to the benefit of it, but, if the case be a doubtful one, the presumption is sufficient to turn the scale in his favor.
11. CRIMINAL LAW — Evidence — Must Exclude Every Hypothesis Except That of Guilt. — In criminal cases it is not sufficient that the evidence creates a suspicion or probability of guilt; but it must go further and exclude every reasonable hypothesis except that of guilt.
12. CRIMINAL LAW — Evidence — Fact Susceptible of Two Interpretations. — In criminal cases where a fact is equally susceptible of two interpretations, one of which is consistent with the interpretation of the accused, the jury may not arbitrarily adopt that interpretation which incriminates him.
13. CRIMINAL LAW — Presumption of Innocence — Not Prejudiced by Failure to Name Guilty Party. — In criminal cases the failure of the Commonwealth to point out, or the defendant to name the guilty party, is not allowed to prejudice the presumption of innocence in favor of the defendant.
14. HOMICIDE — Instruction — Where There Is Joint Indictment and Severance — Case at Bar. — In the instant case, a prosecution for homicide, defendant was indicted with another person but a severance was granted and she was tried first. An instruction was given for the Commonwealth which was stated in the disjunctive and was to be applied to each defendant acting alone and acting together. When applied separately to the defendant in the instant case its effect was to tell the jury that if the person indicted with her committed the offense then defendant was guilty of murder.
Held: Error.
15. CHANGE OF VENUE — Discretion of Court — Case at Bar. — In the instant case, a prosecution for homicide, on defendant's motion for a change of venue she filed 53 affidavits and the Commonwealth filed 67, setting forth the opinions and counter-opinions of the affiants.
Held: That the proper action thereon was in the sound discretion of the trial court who was in an advantageous position to determine the merits of the motion, and his action thereon was not to be reversed unless the record affirmatively showed an abuse of that discretion.
16. HOMICIDE — Admissibility of Evidence — Where Similar Testimony Developed by Other Party — Case at Bar. — In the instant case, a prosecution for homicide, error was assigned by defendant to the admission of testimony relating to the state of mind of the deceased and the relations between him and his wife, the defendant. Similar testimony for a similar purpose was developed by defendant.
Held: No error, since similar testimony was developed by defendant and she should not be heard to complain at its reception for the Commonwealth.
Error to a judgment of the Circuit Court of Rockingham county. Hon. H. W. Bertram, judge presiding.
The opinion states the case.
T. W. Messick, Russell M. Weaver and D. Wampler Earman, for the plaintiff in error.
Abram P. Staples, Attorney General, M. Ray Doubles and Walter E. Rogers, Assistant Attorneys General, for the Commonwealth.
Grace M. Smith and Ralph H. Garner were jointly indicted at the February term, 1945, for the murder of Frank C. Smith, who was the husband of Grace M. Smith. On motion of her counsel, there was a severance and she was tried first. Upon her plea of not guilty she was tried by a jury. At the conclusion of the trial, begun on October 15, and lasting into October 22, she was convicted of murder in the first degree and her punishment fixed at twenty years in the penitentiary. Upon this verdict she was sentenced, and to that judgment this writ of error was awarded.
The eleven assignments of error bring under review the sufficiency of the evidence, the defendant's motion for a change of venue, the admission of certain testimony, her request for permission to examine certain articles taken from her home and held by the Commonwealth's officers, the granting of certain instructions, and her absence when the court ruled on certain motions of the defendant.
At the end of the Commonwealth's evidence and at the conclusion of all the evidence, the defendant moved to strike on the ground that the evidence wholly failed to establish that Frank Smith's death was caused by criminal agency, but, to the contrary, showed that he committed suicide; and this same issue was presented by an instruction offered by the defendant and refused, and by the motion of the defendant to set aside the verdict and discharge her from custody. The adverse rulings on this issue are the subject of the first assignment of error, and this issue is the one most fully and earnestly argued in the briefs and orally.
The Commonwealth relies on circumstantial evidence and what it claims to be the necessary inferences from it to carry its burden of proving beyond a reasonable doubt that Smith's death was the result of criminal agency, and that this defendant herself killed or aided somebody else to kill him. It was not contended in the trial court that she did it alone. It was admitted there and here that she could not have done it alone, and the theory of the Commonwealth is that Ralph H. Garner killed him and that this defendant helped him do it. The defendant claimed that neither of them did it, but that Smith killed himself. Much of the evidence is not involved in substantial conflict. The main conflicts center around the presence of Garner at the scene of...
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Smith v. Commonwealth, 3110.
... ... The record states this witness was answering questions on cross-examination in loud and excited tones, and again that she was hysterical and screaming her replies. [3, 4] It is strenuously argued for the defendant that it was impossible for this witness to have seen as she claims, and that her evidence is ... ...