Thaniel v. Commonwealth

Decision Date16 March 1922
Citation111 S.E. 259
CourtVirginia Supreme Court
PartiesTHANIEL. v. COMMONWEALTH.

Error to Circuit Court, Hanover County.

Boxley Thaniel was convicted of murder in the second degree, and he brings error. Affirmed.

McNeill & Bremner, of Richmond, for plaintiff in error.

John E. Saunders, Atty. Gen., J. D. Hank, Jr., Asst. Atty. Gen., and Leon M. Bazile, Second Asst. Atty. Gen., for the Commonwealth.

KELLY, P. This is a writ of error to a judgment of the circuit court of Hanover county sentencing the defendant, Boxley Thaniel, to a term of 20 years in the penitentiary for murder in the second degree.

1. It is contended that the evidence was not sufficient to warrant a conviction of any higher offense than manslaughter. We are unable to adopt this view of the case.

The evidence introduced by the commonwealth, though in conflict with that of the defendant in some particulars, was credited by the jury and showed, or tended to show, the following facts: The defendant and 40 or more other colored persons, men and women, were attending a dance at a schoolhouse. Some time during the evening, the defendant asked a certain girl whether she was going to dance with him. She answered in the negative, and he then caught hold of her hands, but she jerked away from him. Thereupon the defendant said: "You ain't going to dance with me, are you?" and, drawing his pistol, began shooting towards her and towards the side or end of the room. Immediately thereafter the deceased, William Shelton, began firing a pistol into the ceiling. These two persons appear to have been the only ones who did any shooting. Both moved towards the door, the defendant being just ahead as he reached the doorway, and at that point he whirled around and shot Shelton, who fell and died almost instantly. It is argued that the evidence leaves a question as to who actually killed the deceased; but, if certain of the witnesses for the commonwealth told the truth, there is no room for doubt upon this point. The jury believed those witnesses, and their verdict concludes the question in this court.

There is nothing whatever in the evidence either for the commonwealth or for the defendant to show that the latter had any occasion or excuse for shooting the deceased, or that there was any altercation or exchange of shots between them. The defendant himself, in testifying at the trial as a witness on his own behalf, said that the shooting began behind him and that he turned and shot three times to protect himself, but he further stated in the next breath, "I didn't shoot anybody, but shot up in the air, " and neither he nor any other witness stated that the deceased ever spoke to him, or shot at him, or made any hostile, demonstration towards him.

The case of Richardson v. Commonwealth, 128 Va. 691, 695, 104 S. E. 788, 790, is cited and relied on for the prisoner. In that ease we said:

"It has been long settled that where a homicide is committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation and without any previous grudge, and the killing is from the sudden heat of passion growing solely out of the quarrel, or combat, or provocation, it is not murder, but is manslaughter only—voluntary manslaughter, if there be no further justification, and involuntary manslaughter if the killing be done in the commission of some lawful act, such as injustifiable self defense."

This statement of the law manifestly has no application to the facts of the case in judgment. Here we have not even a claim of any sudden quarrel, or mutual combat, or provocation. The defendant testified that he did not shoot the deceased at all. The jury upon abundant evidence found that he did. The verdict binds us on this point, and the case as it comes here, therefore, is one in which the defendant, with a deadly weapon in his previous possession, killed the deceased without provocation or other extenuating circumstances. Upon these facts, even if he had been convicted of murder in the first degree, we could not interfere. Hill's Case, 2 Gratt. (43 Va.) 594, 606; Howell's Case, 26 Gratt. (67 Va.) 995; Jones' Case, 100 Va. 842, 855, 41 S. E. 951; Thompson's Case, 131 Va.—, 109 S. E. 447, 454.

It is true that no previous quarrel or grudge between the accused and the deceased was proved, but in order to constitute murder even in the first degree it is not necessary that the intent to kill should have existed for any particular length of time. It may be formed at the very moment of the killing. McDaniel's Case, 77 Va. 281, 284; Thompson's Case, supra.

2. The next question to be considered is an interesting and important one, and arises upon the following state of facts:

On the day after the homicide the coroner held an inquest at which the defendant testified as a witness. While the record is not entirely clear upon the point, we shall assume, in order to give the defendant the full benefit of his contention, that he was duly summoned and that he did not voluntarily offer himself as a witness. He was not under arrest at that time, nor, so far as the record shows, had he been charged with the crime. Upon this assumption and under these circumstances, even though his testimony at the coroner's inquest may have tended to exculpate him, he cannot be regarded as having been there in the capacity of a witness in his own behalf. Mullins v. Commonwealth, 113 Va. 787, 792, 75 S. E. 193; Beale's Crim. Pl. & Pr. p. 315. He was subsequently indicted, and at the trial he went on the stand and testified fully as a witness in his own behalf, stating, among other things, that he did some shooting but did not shoot the deceased. On cross-examination he was asked and required to answer, over objection by his counsel, whether he did not, while testifying at the coroner's inquest, make this statement:

"I didn't hear any shooting last night and I don't remember seeing any pistol laying beside the body. I did not do any shooting myself to my knowledge."

To this inquiry the defendant replied: "Yes, I did make that statement."

He was then further asked and required to answer, subject to like objection by his counsel, the following question:

"You have then made two different statements about this shooting, the one which you made before the coroner's jury and the one which you have just made here; which is true?"

His answer was:

"The one that I have just made is true, I don't know why I made the other one."

It is insisted by counsel for defendant that this cross-examination was in violation of section 4781 of the Code, which is to the following effect:

"In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, unless such statement was made when examined as a witness in his own behalf."

To support the contention that the cross-examination of the accused as above set out was in violation of the terms of this statute, we are referred to the case of Kirby v. Commonwealth, 77 Va. 681, 46 Am. Rep. 747, and Mullins v. Commonwealth, supra.

In Kirby v. Commonwealth there had been two trials, at the first of which the prisoner, Kirby, had gone on the witness stand in his own behalf. At the second trial he did not testify, but a third party was allowed to testify, over objection, that certain statements made by Kirby at the first trial were in conflict with the testimony of two of his witnesses at the second trial. The statute, Code 1873, c. 195, § 22 (subsequently amended and now appearing as section 4781 of the Code quoted above), in force at the time the Kirby Case was decided, was to the following effect:

"In a criminal prosecution other than for perjury, or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination."

The court, in an opinion by Judge Lewis, held that the testimony was improperly admitted, and reversed the judgment for that reason. The decision was in conformity with the terms of the statute as then in force; and it was doubtless to meet the effect of that decision that the statute was subsequently amended by adding the words, "unless such statement was made when examined as a witness in his own behalf." Under the statute as it was when the Kirby Case was decided, if the defendant himself had first testified in his own behalf and had then been asked on cross-examination whether he had not made certain statements at the former trial contrary to those he was making at the second trial, it is possible that this court would have held, notwithstanding the then existing terms of what is now section 4781, that he was compellable to answer on the ground that in becoming a witness he waived, at least as to his credibility and witness-character, the privilege which that statute was intended to protect. Some of the cases on the subject have in principle and effect gone thus far. See 3 Wigmore on Evidence, § 2276 (a), p. 3151, Jones on Evidence, § 887, and numerous other authorities cited later on in this opinion. But we need not speculate as to what this court would have done in the Kirby Case under the circumstances here suggested. The fact remains that the accused did not testify on the second trial, and that the provisions of sections 4778 and 4781 were at that time vitally different from what they were when the instant case was tried, and the two cases are therefore readily distinguishable. It is clear, at any rate, that the previous statements of the accused which were excluded in the Kirby Case would be admissible now, because those statements had been made by him "as a witness in his own behalf."

In Mullins v. Commonwealth, supra, while the opinion does not state the facts fully, it appears from the record therein, which we have examined, that a witness was permitted, over the objection of the accused, to testify that the latter as a witness at...

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