Vaiden v. Commonwealth
| Decision Date | 21 May 1855 |
| Citation | 53 Va. 717 |
| Parties | VAIDEN v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. A bill of exceptions in a criminal case, upon the refusal of the court to grant a new trial, on the ground that the verdict is contrary to the evidence, is to be framed in the same way as the bill of exceptions in civil cases to the like refusal is framed. And if the evidence is certified instead of the facts proved, the appellate court will only look to the evidence introduced by the commonwealth.
2. In reviewing the judgment of the court below, the appellate court will not reverse the judgment on the ground that there is a doubt of its correctness; but it must be satisfied that the evidence is plainly insufficient to warrant the verdict.
3. On a trial for murder, the necessity relied on to justify the killing must not arise out of the prisoner's own misconduct.
At the March term 1855 of the Circuit court of Lunenburg county Isham W. Vaiden was indicted and tried for the murder of James A. Winn. The jury found him guilty of voluntary manslaughter, and fixed his term of imprisonment in the penitentiary at four years; and the court sentenced him accordingly.
After the verdict was rendered, the prisoner moved the court for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, and the prisoner excepted.
The bill of exceptions commences by stating that on the trial of the cause, it was proved by, & c. and then states the name of a witness, and proceeds to give his statement; and so it proceeds, giving the name of each witness and what he stated, until near the close of the bill of exceptions, when it is stated it was proved by several witnesses, that for the last eighteen months or two years Winn had been a drinking man, and that when drinking he was a quarrelsome, turbulent man; though some regarded him as a coward; and that Vaiden was an amiable and peaceable man, although a drinking man. And the exception then concludes: And this being the testimony in the case, & c.
The first witness examined for the commonwealth, Pennington stated, that on the night of the 29th of December 1854, he went to the house of the prisoner, to the wedding of the prisoner's daughter, and got there about half an hour after nightfall. That he found the prisoner and the deceased playing cards when he arrived; and that they continued their game from twenty-five to thirty minutes afterwards. When they stopped playing, Vaiden said to Winn, you owe me five dollars, which Winn did not deny, but discovering a card under the table, accused Vaiden of putting it there. Vaiden then said he had not put it there, and Winn said he had not. Winn then accused Vaiden of having cheated him. Vaiden said he had not, and Winn called him a damn'd liar. Mrs Vaiden, the wife of the prisoner, taking hold of Winn, said to him, I thought you promised me to have no fuss here. Winn replied that he did; and at the instance of Mrs. Vaiden, Winn left immediately, saying " good night," and went into the yard. He remained there some five minutes, cursing and talking loud, and seemed to be enraged; but witness could not distinguish his words, the door being shut. Vaiden then went to the door and told Winn he owed him five dollars, and Winn said to him, Come out here, you damn'd old rascal and I will pay you your five dollars. Winn then came and asked for his gun, which George Vaiden, the son of the prisoner, handed to Mrs. Vaiden and she handed it to Winn through the door. At this time this witness and Harding left the house and joined Winn in the yard. Whilst Winn was talking loudly in the yard and before his gun was handed to him, Vaiden took up his gun and went towards the door; but his wife persuading him, he set his gun down.
Witness and Harding mounted their horses, and in company with Winn, who was walking, went towards the gap on the path leading from Vaiden's house to the main road. George Vaiden joined them a few yards from the house; and as the party were going to the gap, Winn told George Vaiden, that if he had said any thing to hurt his feelings or his mother's, he asked their pardon; but tell your father, a damn'd old rascal, that the first time I catch him out of his plantation, I will flail him well. The whole party went through the gap, and George Vaiden put up the fence. Witness and Harding left Winn and George Vaiden outside of the gap in not unfriendly conversation; Winn telling him the particulars of a fracas he had recently gotten into at Lunenburg court-house. When witness had rode about a quarter of a mile from the gap he heard a gun fire, but did not return. Witness did not see the cap taken off Winn's gun before it was handed to him; and heard no one tell George Vaiden or any one else to take it off.
Harding proved the same facts as Pennington, and his statement as to the taking off the cap from Winn's gun was the same. He saw and heard nothing of it.
Dr. Saunders, another witness for the commonwealth, was called to see Winn as a physician. Found him dead when he arrived, and the body lying in the corner of the fence inside, about two panels from the gap spoken of by Pennington. Thought he must have been shot at a distance of not more than three feet. Found Vaiden bleeding from a wound on the forehead, which witness thought was inflicted with the breach of a gun. Thinks Winn must have inflicted this blow after he was shot, because, if inflicted before, such an instrument wielded by a man of Winn's strength, must inevitably have crushed the skull of Vaiden. The body of the deceased laid where he died until the inquest was held the next day. The night was cloudy, but the moon was full; and the figure of a man could be distinguished at the distance of thirty yards. The gap was two hundred and seventeen steps from the house.
George Vaiden, another witness for the commonwealth, a son of the prisoner, gave the same account of what passed at the house, and to the time Pennington and Harding left him and the deceased at the gap, as was given by them. He further stated, that after the gap was put up he and Winn stood on the outside leaning against a panel. Winn had his side face towards the house, and was telling witness of a fracas he had had at Lunenburg court-house, when he suddenly exclaimed, " Yonder comes the damn'd old rascal, and I'll flail him now; " and jumped over the fence, and clubbed his gun soon after he jumped the fence, in both hands, about half way the barrel, and rushed upon the prisoner. As Winn jumped over the fence, witness distinctly heard the prisoner tell him not to approach him; if he did, he would shoot him. Winn did not stop, but rushed on the prisoner with his gun raised in both hands, grasped about half way the barrel. The prisoner stepped back one or two steps; and when Winn got within a few feet of him, fired. Winn struck the prisoner two blows with the breech of his gun after he was shot, and then staggered back; and then both of them fell together. Witness thinks they closed, and that Winn pulled the prisoner down with him. Witness did not see the prisoner till Winn made his first exclamation; and when witness saw him he was about fifteen feet from the gap, in the usual walking path from the house, which was on the north edge of the cart path.
Witness took the cap from Winn's gun at the suggestion of Reuben Clarke, before he handed it to his mother who handed it to Winn. Does not think any one else heard Clarke, who spoke in a low voice. Prisoner could not have seen him take it off, as a door, which was about half open, was between them.
Benjamin Yates, another witness for the commonwealth, lived about five or six hundred yards from Vaiden's house. The next morning Vaiden came to the house of witness, when in reply to a remark he made, witness asked what was the matter; and the prisoner said he had killed Jimmy Winn. Witness told him that he reckoned not, and prisoner replied that he had; and said there was another damn'd rascal in the neighborhood, who, if he didn't look sharp, would be killed too. That the deceased was a damn'd dog, and ought to have been killed twenty years ago, and that some body had to do it; and didn't witness think so. Prisoner told witness that Winn had struck him two blows over the head before he shot him; and that both he and Winn were tolerably tight. Prisoner looked as if he had been drinking a good deal the night before, but was not drunk when he came to the house of witness in the morning. The deceased was a quarrelsome man when drunk, and for the last eighteen months or two years had had a great many fracases. He could manage Vaiden easily. He was a large, muscular man, about forty-two years of age; and Vaiden a small man, about sixty years old.
Reuben Clarke, a witness for the prisoner, gave substantially the same account of what occurred in the house as the other witnesses, up to the time of their leaving. He confirmed what George Vaiden said about taking off the cap of the gun at his suggestion; and that the prisoner did not see it done. He states that after Winn had left the yard, Vaiden walked up and down the room, and asked " where is George?" two or three times, and seemed uneasy. He then took his gun and started out, and upon Mrs. Vaiden's asking him not to go out, he said he would have no difficulty. About three or four minutes after Vaiden went out, witness heard the report of a gun, and went out to where Winn lay. Winn lived about twenty or thirty minutes. Whilst Mrs. Vaiden and witness were standing near Winn, he asked Vaiden to forgive him. Vaiden did not appear to hear him at first. Winn repeated it, and Vaiden said " All right," or something signifying that he did forgive him. Vaiden's forehead was cut about three inches; and...
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