Taylor v. Commonwealth

• Decision Date: 06 July 1893
• Citation: 17 S.E. 812,90 Va. 109
• Parties: TAYLOR. v. COMMONWEALTH.
• Court: Virginia Supreme Court

17 S.E. 812

90 Va. 109

TAYLOR.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

July 6, 1893.

Homicide—Grand Jury —Summoning—Foreman —Waiver of Objections —Evidence—Sufficiency—Instructions.

1. Objections that a grand jury was not constituted and the foreman was not selected and sworn as required by law cannot be raised for the first time on appeal, but must be raised by plea in abatement.

2. Where the grand jurors were duly sworn, and the court receives from them the indictment, signed by one of them as foreman, objections that the jury was not constituted and the foreman was not selected and sworn as required by law are not well taken.

3. Where it appears that the venire was issued by order of the court, and it is not made a part of the record by bill of exceptions, an assignment that no venire was issued directing the sheriff to summon the jury from a list furnished by the court is without merit.

4. Defendant was accused of the murder of M an invalid, who, with six others, waswaylaid on a highway at midday, five being shot. Two witnesses testified that defendant had said M. "offered $100 to have me killed on Saturday, and his bed was shot into on Sunday, but I was over in Kentucky." "Some time after he had offered the reward to have me killed, somebody shot into his bed, but it wasn't me, " and laughed. Three others testified to similar statements by defendant. Held that it was not error to permit another witness to testify that about three weeks before the murder M.'s bed was fired into.

5. Though defendant absconded after the murder, it is not error to exclude evidence of uncommunicated threats made against him after the homicide.

6. Where it does not appear what the answer to a question would be it cannot be said that any injury was done by excluding it.

7. Where it appeared that defendant concealed himself, and fled to another state after the murder, it was not error to exclude evidence that "it was the general talk in that community" that if certain persons found defendant "they would kill him without attempting to arrest him."

8. Defendant cannot complain of the admission of proper evidence by the commonwealth on the ground that it contradicts the evidence of other witnesses for the state.

9. It is not error to exclude evidence offered by defendant that a loose woman, whose name he could not show, was living at the house of deceased prior to the murder.

10. Nor is it error to exclude as evidence an indictment against another person for the same offense.

11. The verdict cannot be impeached by the affidavits or declarations of jurors showing that they acted on evidence other than that adduced before them on the trial.

12. On such trial the state put in evidence certain cartridge hulls picked up where the murder was committed. Defendant introduced other cartridge bulls of the same size, which, had been taken from his gun after shooting it off during the trial, to show that the mark made by the plunger of his gun was different from the mark on the shells introduced by the state. He also put his gun in evidence, but it was not taken apart. By permission of defendant the gun was taken to the jury room during their deliberations, where, on taking it apart, the jurors discovered that the plunger had been recently "tampered with." Held that, though the affidavits of jurors to the facts occurring in their room were competent to impeach their verdict, there was no misconduct vitiating the latter.

13. Where the court charges that defendant is considered innocent until he is proven guilty to the exclusion of every reasonable doubt, it is not error to refuse to charge that no inference could be drawn from defendant's failure to introduce any evidence to account for his whereabouts at the time of the murder, though there was evidence that he told a witness that he was at the time "waiting on some sick folks on the other side, in Kentucky, " or from his failure to explain other suspicious circumstances surrounding him.

14. It is not error to omit from a request to charge on the law of reasonable doubt the phrase that "to doubt is to acquit, " where the remainder of the instruction is in the most favorable form for defendant.

15. Where the court charges, at request of defendant, of which request the jury are informed, that "the failure of defendant to testify in his own behalf creates no presumption against him, " and no reference is otherwise made on the trial to his failure to testify, it is not error to refuse to further charge that the jury should draw no inference against defendant because he failed to procure witnesses from Kentucky, to show where he was on the day of the homicide.

16. There was evidence that M. had $1,000 at the time of the murder, part of which was in a bag in the wagon, and the balance on his wife's person, all of which was taken; that defendant made statements indicating that he had shot into M.'s bed a few days before the murder; that he asked a witness how he would like to have M. put out of the way; that he proposed to two witnesses several times to go with him and kill M. and his brother; and said if they didn't help him he would do it alone; that he and the F. brothers were seen the night before, going with Winchester rifles towards the place where the murder was committed; that cartridge shells which fitted bis rifle were found there; that M.'s sister-in-law, who was with him and his brother when they were killed, and who had known defendant for 15 years, saw defendant and F. "from the breast up;" that they had veils over the upper parts of their faces; that they spoke to her, and she recognized them; and that after the murder defendant concealed himself for a number of days, and finally escaped to Florida. Held, that a verdict of guilty of murder in the first degree was supported by the evidence.

Richardson, J., dissenting.

Error to circuit court, Wise county; D. M. Morrison, Judge.

M. B. Taylor was tried on an indictment for the murder of Ira Mullins, convicted of murder in die first degree, and sentenced to be hanged. He brings error. Affirmed.

Duncan, Miller & Alderson, for plaintiff in error.

E. W.Fulton and the Attorney General, for the Commonwealth.

FAUNTLEROY, J. This is a writ of error to a judgment of the circuit court of Wise county, rendered on the 10th day of September, 1892, upon a verdict of a jury convicting the plaintiff in error, M. B. Taylor, of murder in the first degree, and sentencing him, the said M. B. Taylor, to be hanged by the neck until he be dead, on the 16th day of December, 1892. The record of proceedings of the trial court in this case to be reviewed by this court presents no question of the corpus delicti. About 9 or 10 o'clock in the morning of the 14th of May, 1892, (Saturday,) Ira Mullins, a helpless paralytic, who had to travel in a wagon, started in a wagon drawn by-two horses and accompanied by his wife and 15 year old son, John H. Mullins, and John Chappel, Greenbury Harris, Wilson Mullins, and Jane Mullins, from the house of Wilson Mullins, on Elk Horn, in Kentucky, near the Virginia line, to go to the home of the said Ira Mullins, in Wise county, Va. When they had crossed the state line, and had got about a half mile from Pond or Pound gap, on this side of the top of the mountain about one-fourth or one-half of a mile, they were fired on, in the public highway in the county of Wise, from a blinded and barricaded ambush, some 20 or 25 steps from the road, and the said Ira Mullins and his wife and John Chappel, Greenbury Harris, and Wilson Mullins were all five instantly killed; and the horses to the wagon were also killed. The boy, John H. Mullins, started to run as soon as the firing began, and as he ran a bullet grazed his body, and cut his suspenders behind, and nearly cut them in two. Jane Mullins, the wife of Wilson Mullins, says she was along when Ira Mullins and other persons were killed, and that she saw three men standing some 20or 25 steps from the wagon; and hallooed: "Boys, for the Lord's sake, don't shoot any more. You have killed them all now." They replied: "God damn you, take the road and leave, or we will kill you." Ira Mullins received eight shots, and was instantly killed as he lay in his wagon. Thus, as the record shows, were five persons, traveling upon the highway in Wise county, Va., at midday, on Saturday, the 14th day of May, 1892, waylaid and cruelly murdered and hurried into eternity, without a moment's warning or apprehension, by dastard assassins, crouching on the roadside, in a prepared ambush, for the bloody and brutal deed. Who perpetrated this dark crime, this inhuman and wholesale massacre of innocent and unsuspecting men, women, and children, traveling peacefully upon the high way in Wise county, Va., at midday, on the 14th day of May, 1892? Suspicion pointed to M. B. Taylor, the plaintiff in error, who bad fled from his home, and, after concealing himself for a time, was endeavoring to make his way to Florida, when he was arrested. At the August term, 1892, of the county court of Wise county, a special grand jury impaneled for the term, and sworn as a special grand jury of inquest in and for the county of Wise, after receiving their charge, retired to their room to consider of their presentments and indictments, and returned into court, having found the following indictment, to wit: "An indictment of the commonwealth against M. B. Taylor for the murder of Ira Mullins, " indorsed, "A true bill, " and signed by "I. L. Wampler, Foreman;" which said indictment was entered of record in the said court, and the accused was placed at bar for trial. Taylor, the accused, offered a plea in abatement, which was refused by the court. He demurred to the indictment, and the demurrer was overruled. He then elected to be tried in the circuit court of Wise county, and he was remanded for trial to that court. He was tried in that court at the September term, 1892, by a jury of his peers from the vicinage, and found...