Stoneman v. Commonwealth

• Decision Date: 08 July 1874
• Citation: 66 Va. 887
• Parties: STONEMAN v. COMMONWEALTH.
• Court: Virginia Supreme Court

66 Va. 887

STONEMAN v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

July 8, 1874

1. On the trial of S for the murder of E, the commonwealth having shown that E and O, the sister of S, had been married, the prisoner may introduce in evidence the decree in a suit by O against E for a divorce, either to render O competent as a witness for him, or to show that E being no longer the husband of O was a mere intruder upon the prisoner's family. But the pleadings and depositions are not admissible as evidence for such a purpose.

2. An objection to a question asked and to the witnesses answering it, is overruled, and an exception taken, which does not state the answer. The appellate court cannot consider it.

3. On the trial of S for the murder of E, if S shot E under a reasonable apprehension, that his own life or that of some member of his family was in imminent danger, or under a reasonable apprehension that the deceased intended to burn the dwelling house of his mother, or commit some other known felony, and that there was imminent danger of such design being carried into execution, he is justified in so doing though such danger was unreal.

4. The bare fear that a man intends to commit murder, or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention, will not warrant killing the party by way of prevention. There must be some overt act indicative of imminent danger at the time.

5. There must be some act by the deceased meaning present peril or something in the attending circumstances indicative of a present purpose to make the apprehended attack. The act so done, or circumstances thus existing, must be of such a character as to afford a reasonable ground for believing there is a design to commit a felony, or to do some serious bodily harm, and imminent danger of carrying such design into immediate execution. Then the killing will be justifiable though there was in fact no such design by the deceased.

6. If an instruction correctly expounds the law, and is expressed in terms familiar to the books, and well understood by the judicial mind, and especially if the jury or the counsel do not ask for an explanation of it, an appellate court will not set the verdict aside, because its true import and meaning possibly may not have been comprehended by the jury.

In December 1873 Leftwich Stoneman was indicted in the County court of Carroll county for the murder of Annuel Edwards Jr., and was sent to the Circuit court of the county for trial. In April 1874 the trial came on, and he was found guilty by the jury, and the term of his confinement in the penitentiary was fixed at nine years, and the court sentenced him in accordance with the verdict.

On the trial, after the commonwealth had closed the testimony on her part, and had shown that the deceased and Ollie Stoneman had been married, the prisoner offered in evidence the record of a suit for a divorce between the said Ollie and deceased. To the introduction of this record the attorney for the commonwealth objected; and the court sustained the objection as to all of said record, except the final decree in the cause. To this ruling of the court the prisoner excepted.

Ollie Stoneman was then examined as a witness for the prisoner; and upon her cross-examination, after stating in answer to questions, that she had received two letters and other messages from the deceased after their divorce, and that she had not replied to them, in answer to another question, she said she had received through Mr. Lundy a message from him. The attorney for the commonwealth then asked her to state what the message was that she had so received, and the nature of it. To which question, and to the witnesses answering the same, the prisoner objected. But the court overruled the objection, and directed the witness to answer. And the prisoner excepted; but the exception does not state the answer.

After all the evidence had been introduced, the attorney for the commonwealth moved the court to instruct the jury as follows:

The bare fear that a man intends to commit murder or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention, will not warrant killing the party by way of prevention. There must be some overt act indicative of imminent danger at the time.

This instruction was objected to by the prisoner; and instead thereof he moved the court to give five. Four of these the court gave. The fifth which the court refused to give is as follows:

If the jury shall believe from the evidence that Leftwich Stoneman, the prisoner at the bar, has shown in his behalf that Annuel Edwards, the deceased, made such threats or did such acts as to cause him truly to believe that he was in danger, and no overt act was proven against the deceased to carry his threats into execution at the time of the homicide, and that the accused killed the deceased under the opinion that his life was in danger, though such apprehension was unreal; and if they shall believe that the threats were communicated to him before the homicide, they must acquit the prisoner.

The attorney for the commonwealth objected to the fifth instruction asked for by the prisoner, and the court overruled the prisoner's objection to the instruction asked for by the attorney for the commonwealth, and gave the same to the jury with the following addition:

But the jury will judge whether the conduct and acts of the deceased, at the time of the shooting, was of such a character as to create in the mind of the prisoner a reasonable fear that the deceased intended to commit murder or other felony, or to do the prisoner or his family great bodily harm-- together with instructions Nos. 1, 2, 3 and 4, asked by the accused; stating to the jury they would reconcile the instructions by understanding that apprehensions of danger, to justify a homicide, ought to be based not alone on surmises, but there ought to be coupled therewith some act on the part of the party from whom danger was apprehended, evidencing an intention to carry into execution his threats or designs.

After the jury returned into court with their verdict, the accused moved the court for a new trial, because the same was not warranted by the facts proved and the law applicable to the case. But the court overruled the motion.

The prisoner then moved the court for a new trial, because of misdirection to the jury in refusing to give the fifth instruction asked for by him, and in giving the instruction asked for by the attorney for the commonwealth, with the addition thereto made by the court. But the court overruled the motion.

The accused then moved the court to set aside the verdict and grant him a new trial, because in refusing to give instruction No. 5, asked for by the accused, and the giving the instruction asked for by the commonwealth, with the addition thereto, was calculated to mislead the jury. But the court overruled the motion.

The accused then moved the court to grant him a new trial, on the ground that the punishment ascertained by the jury was excessive. But the court overruled the motion.

To which opinions of the court in refusing to give instruction No. 5, and in giving the instruction asked for by the attorney for the commonwealth, with the addition thereto, and in overruling the motions 1, 2, 3 and 4, of the accused, to set aside the verdict, the accused excepted. And on his motion the facts proved were spread upon the record. The facts are sufficiently stated by Judge Staples in his opinion.

J. W. Shelton and Tipton, for the prisoner.

Walker, for the commonwealth.

OPINION

STAPLES, J.

The prisoner was indicted in the Circuit court of Carroll county for the murder of Annuel Edwards. At the April term 1874 he was tried and convicted of murder in the second degree, and the period of his confinement in the penitentiary fixed at nine years.

During the progress of the trial the prisoner offered in evidence the record of a suit for a divorce between the deceased and Ollie Edwards, the former wife of the deceased, and also the sister of the prisoner. To the introduction of this evidence the commonwealth objected; and the court sustained the objection as to all the record, except the decree; which was admitted.

The prisoner excepted, and this is his first bill of exceptions. It is very clear that the decree itself was competent evidence to show that a divorce had been granted. For this purpose the prisoner was entitled to rely upon it with a view to the introduction of the said Ollie Stoneman as a witness for him. Whether it was essential to that object, it is not material now to enquire.

The decree might also have been important to show that the deceased being no longer the husband of Ollie Stoneman, was a mere intruder upon the premises of the prisoner's family; having no pretense of a right to go there, and might be justly regarded and treated as a trespasser and an enemy. Indeed the divorce was necessary to explain the real status of the parties, and the circumstances which led to the homicide. The decree was therefore very properly admitted by the court to go to the jury. But it is very difficult to see upon what ground the preliminary proceedings which led to the decree could be regarded as evidence for any purpose. The commonwealth was not a party to that suit nor privy to it, and neither the recitals in the bill and answer, nor the depositions, were competent to establish the existence of any fact against her. It is very clear, therefore, that the court did not err in its rulings upon this point.

In the further progress of the trial, after the prisoner had proved by his sister Ollie Stoneman, that the deceased had made various threats...