Thacker v. Commonwealth
| Decision Date | 16 November 1922 |
| Citation | 114 S.E. 504 |
| Parties | THACKER. v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Alleghany County.
John Thacker was convicted of an attempt to commit murder, and he brings error. Reversed and remanded.
Geo. A. Revercomb, of Covington, W. Chapman Revercomb, of Charleston, W. Va., and R. C. Stokes, of Covington, for plaintiff in error.
John R. Saunders, Atty. Gen., for the Commonwealth.
This writ of error is to a judgment upon the verdict of a jury finding John Thacker, the accused, guilty of attempting to murder Mrs. J. A. Ratrie, and fixing his punishment at two years in the penitentiary.
The only assignment of error is the refusal of the trial court to set aside the verdict as contrary to the law and the evidence.
The accused, in company with two other young men, Doc Campbell and Paul Kelly, was attending a church festival in Alleghany county, at which all three became intoxicated. They left the church between 10 and 11 o'clock at night, and walked down the county road about 1 1/2 miles, when they came to a sharp curve. Located in this curve was a tent in which the said Mrs. J. A. Ratrie, her husband, four children, and a servant were camping for the summer. The husband, though absent, was expected home that night, and Mrs. Ratrie, upon retiring, had placed a lighted lamp on a trunk by the head of her bed. After 11 o'clock she was awakened by the shots of a pistol and loud talking in the road near by, and heard a man say, "I am going to shoot that Goddamned light out;" and another voice said, "Don't shoot the light out" The accused and his friends then appeared at the back of the tent, where the flaps of the tent were open, and said they were from Bath county and had lost their way, and asked Mrs. Ratrie if she could take care of them all night. She informed them she was camping for the summer, and had no room for them. One of the three thanked her, and they turned away, but after passing around the tent the accused used some vulgar language and did some cursing and singing. When they got back in the road, the accused said again he was going to shoot the light out, and fired three shots, two of which went through the tent, one passing through the head of the bed in which Mrs. Ratrie was lying, just missing her head and the head of her baby, who was sleeping with her. The accused did not know Mrs. Ratrie, and had never seen her before. He testified he did not know any of the parties in the tent, and had no ill will against either of them; that he simply shot at the light, without any intent to harm Mrs. Ratrie or any one else; that he would not have shot had he been sober, and regretted his action.
The foregoing are the admitted facts in the case.
An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Hicks v. Com., 86 Va. 226, 9 S. E. 1024, 19 Am. St. Rep. 891; TJhl's Case, 6 Grat. (47 Va.) 706.
The law can presume the intention so far as realized in the act, but not an intention beyond what was so realized. The law does not presume, because an assault was made with a weapon likely to produce death, that it was an assault with the intent to murder. And where it takes a particular intent to constitute a crime, that particular intent must be proved either by direct or circumstantial evidence, which would warrant the inference of the intent with which the act was done.
When a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found as a matter of fact before a conviction can be had; and no intent in law or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter. Roberts v. People, 19 Mich. 401; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; 1 Whart. Crim. Law, § 316: Vandermark v. People, 47 Ill. 122; Callahan v. State, 21 Ohio St 306; Kunkle v. State, 32 Ind. 220; State v....
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Secret v. Commonwealth
...actions was that everyone there would be consumed by the fire but for their fortuitous escape.Secret’s reliance on Thacker v. Commonwealth , 134 Va. 767, 114 S.E. 504 (1922) in support of his argument that he possessed only general malevolence and no specific intent to kill at the time of t......
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Jones v. Commonwealth
...207 Va. 222, 227, 148 S.E.2d 800 (1966) ; Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395 (1935) ; Thacker v. Commonwealth, 134 Va. 767, 769-70, 114 S.E. 504 (1922). Put another way, the "overt act" must be an action that begins (commences) the execution (consummation) of one or mor......
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State v. Franklin
...in the Virginia statute of the strong language contained in our statute, the Supreme Court of Appeals of Virginia in Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504, 505, held that: 'An attempt to commit a crime is composed of two elements: (1) The attempt to commit it; and (2) a direct,......
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State v. Turner
...(1977), 218 Va. 548, 551, 238 S.E.2d 808; Hargrave v. Commonwealth (1974), 214 Va. 436, 437, 201 S.E.2d 597; Thacker v. Commonwealth (1922), 134 Va. 767, 770-772, 114 S.E. 504. Turner cites no Virginia case holding that a defendant may be convicted of attempted murder without proof of speci......
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Causing, aiding, and the superfluity of accomplice liability.
...saw this clearly. For a discussion, see MOORE, supra note 5, at 95-108. (129) These are roughly the facts of Thacker v. Commonwealth, 114 S.E. 504, 505 (Va. (130) Michael Zimmerman, Taking Luck Seriously, 99 J. PHIL. 553, 554-55 (2002). Christopher Kutz plainly feels the tug toward aretaic ......