Upton v. Commonwealth
| Citation | 2 S.E.2d. 337 |
| Parties | UPTON. v. COMMONWEALTH. |
| Decision Date | 10 April 1939 |
| Court | Supreme Court of Virginia |
Error to Circuit Court, Mecklenburg County; N. S. Turnbull, Jr., Judge.
George W. Upton was convictech of maliciously shooting another, and he brings error.
Reversed and remanded.
Argued before CAMPBELL, C. J, and HOLT, GREGORY, BROWNING, EG-GLESTON, and SPRATLEY, JJ.-
W. Henry Cook, of South Hill, and Edward M. Hudgins, of Chase City, for plaintiff in error.
Abram P. Staples, Atty. Gen., and Walter E. Rogers, of Richmond, for the Commonwealth.
George W. Upton, plaintiff in error, has been found guilty of maliciously shooting one James Carter and has been sentenced to serve a year in the penitentiary.
Upton was a farmer and woodcutter and lived some several miles south of South Hill. He owned both a truck and an automobile. On Saturday afternoon, October 9, 1937, Upton left home for South Hill in his truck, taking with him several employees. At about 8 o'clock he stopped at Matthew Valentine's service station to purchase a soft drink. This station is located approximately one mile south from where Upton's lane enters the highway, and his home is about one-half mile west of that point. While in the station he had some words with a negro boy, Andrew Jones, charged with having stolen his chickens. Jones said that he made some threats but did not state their nature although some mention was made of a gun or rifle.
After finishing his drink, Upton, in his truck, left for South Hill, taking with him Willie Jiggetts, but before reaching town, his truck broke down. He and Jiggetts then continued on afoot and came upon the car of William Walker which had slipped into a roadside ditch. They helped him put his car back on the road and were then picked up by a passing car and carried to Mitchell's store, which was about three miles from Upton's home.
After tarrying awhile, they left at about a quarter past nine and went down the road until they reached the lane leading to his home; here they separated. This point, as we have seen, was about a mile from the service station and about a half a mile from the home. Upton's wife says that he came in about 10 o'clock. This is corroborated by William Hendricks, who was there to see him on business. It was raining and the night was dark. Their evidence is that Upton did not again leave.
At no time that evening did Upton carry a rifle, from which it follows that if he shot Carter at the service station, he must have gone home for his rifle after leaving Jiggetts. His lane is about one-half mile long, and it is a mile from where it enters the highway to the service station, so that it is three miles from his home to the service station and back. If he left Mitchell's store at about a quarter past nine, he had to walk two and one-half miles before he reached his lane, which, added to the three miles, would make five and one-half miles which he would have had to travel on foot in order to go home, come back to the service station and return by about 10 o'clock, all within three-quarters of an hour.
This is not probable, and it is made more improbable by the fact that he had no reason to believe that Carter was then at this service station.
For the Commonwealth it is proven by a ballistic expert that the bullet which struck Carter came from a rifle owned by Upton, but it was his custom to keep it in his automobile, and so others might have had access to it.
This is the only unchallenged evidence which tends to connect the accused with the shooting. After Carter was shot, he went to South Hill, seven or more miles away. How he went and when he arrived, we do not know. Upon reaching that town, he inquired of B. L. Smithson, a police officer in that town, as to where he might find a doctor and was by him directed to the office of Dr. L. H. Bracey. The wound was not severe, and the doctor removed the bullet, a 22-rifle bullet, from Carter's foot, after which Carter told Smithson that Upton had shot him. To this testimony, timely and proper objection was made.
While it has no bearing upon the verdict in this case, it is interesting to note that in an affidavit purporting to set out after-discovered evidence, Carter denied this statement and said that he did not know who had shot him and that his relations with Upton had been and still were friend-
If the testimony of Smithson is admissible at all, it must be because a statement claimed to have been made by Carter in his presence was a part of the res gestae.
This term lacks scientific precision and has been much criticized, but it has been too often passed upon by our court and others to be discarded at this late date. One class of statements to which this term concededly applies is limited to those...
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Perry v. Commonwealth of Va..
...event and where he actually speaks is also not conclusive. Clark, 235 Va. at 292, 367 S.E.2d at 486 (citing Upton v. Commonwealth, 172 Va. 654, 657, 2 S.E.2d 337, 339 (1939)) (holding a victim's hearsay statement, which he made after walking 492 feet away from the location where he received......
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Jones v. Com., 0789-88-4
...(1939)). To ensure that the declaration is indeed instinctive and not narrative and thus possibly contrived, Upton v. Commonwealth, 172 Va. 654, 657, 2 S.E.2d 337, 339 (1939), the spontaneity requirement demands that "[t]he declaration must be made at such time and under such circumstances ......
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Bowling v. Com., 1572-88-3
...that 'the facts are talking through the party or ... the party is talking about the facts.' " Id. (quoting Upton v. Commonwealth, 172 Va. 654, 659, 2 S.E.2d 337, 339 (1939)). In the case before us, West told Officer McCane at the hospital that after he was shot, he went into the office and ......
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Kenston Kangson Yi v. Commonwealth, Record No. 2487-11-4
...asks "whether the declaration was the facts talking through the party or the party talking about the facts." Upton v. Commonwealth, 172 Va. 654, 657-58, 2 S.E.2d 337, 339 (1939). As a result, the trial court found that the statement was not an excited utterance because "it[ is] not a statem......
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Dial-in testimony.
...AND DIGEST OF PROOFS, IN CIVIL AND CRIMINAL PROCEEDINGS, at pt. I, [section] 28, at 47 (1st Am. ed. 1826). (159) Upton v. Commonwealth, 2 S.E.2d 337, 339 (Va. 1939) (citation omitted). Also, see City of Wynnewood v. Cox, which "Res gestae," as said by Mr. Wharton, in his work on Criminal Ev......