Watson v. Commonwealth

• Decision Date: 02 April 1891
• Citation: 13 S.E. 22,87 Va. 608
• Parties: Watson v. Commonwealth.
• Court: Virginia Supreme Court

13 S.E. 22

87 Va. 608

Watson

v.Commonwealth.

Supreme Court of Appeals of Virginia.

April 2, 1891.

Record on Change of Venue—Homicide — Objections to Grand Jury—Evidence—Instructions.

1. Code Va. § 4016, providing that, where one indicted in the county court for a felony elects to be tried in the circuit court, the clerk shall transmit to the clerk of the latter court "a transcript of the record of the proceedings in said county court in relation to the prosecution, and copies of the indictment and recognizances and other papers connected with the case, " does not require the record to show affirmatively that a venire facias was issued in summoning the grand jury.

2. Objection that no venire facias was issued must bo made before plea to the merits.

3. On indictment for murder, where defendant testifies that he killed deceased because he had spoken insultingly of his wife, he may be asked on cross-examination whether the woman was lawfully married to him.

4. On indictment for murder it appeared that during a quarrel between defendant and deceased the latter spoke insultingly of defendant's wife, and called defendant a thief, murderer, and fugitive from justice; that defendant procured a gun, and followed deceased, who had fled, declaring that he would kill him; that deceasedsecreted himself in a house, and defendant waited for him outside with the gun all night; that on another occasion he sought deceased out, declaring an intention to kill him; that about four weeks after the quarrel, while deceased was in the house of his former wife, quarreling with her, defendant went there and killed him. Under deceased was found an old, unused, and unloaded pistol, which could not have been used; and defendant testified that when he shot deceased the latter was advancing on him with the pistol, but he was contradicted by other witnesses. Held, that the court properly refused to set aside a verdict of murder in the first degree.

5. An instruction that if defendant was acting in the heat of passion, engendered by the slanderous words spoken of his wife, and if sufficient time had not elapsed for his passion to cool and subside, the killing was murder in the second degree; but that it was murder in the first degree, if sufficient time had elapsed for his passion to subside, and if he afterwards went after deceased with a deadly weapon for the purpose of killing him on account of the slanderous words, and did kill him willfully and with malice and premeditation, —is proper.

G. Where an instruction, asked by defendant, that if deceased had threatened to kill him, and the threats were made known to him, and if, before the fatal shot was fired, deceased did some overt act from which defendant could reasonably infer that he intended to execute the threats, the killing would be excusable homicide, is modified by the insertion of the clause, "and that defendant killed deceased to prevent him from killing him, or doing him great bodily harm, " defendant cannot complain, since the modification could not injure him.

7. An instruction, asked by defendant, that if he went to the house where the killing occurred to stop a quarrel between deceased and deceased's wife, and to demand an apology for the slanderous words previously spoken by deceased, and if, when he attempted to do so, deceased attacked him with a deadly weapon, the killing of deceased is not murder, is properly modified by requiring that defendant shall have gone to the house for the purpose of "peaceably" stopping the quarrel, and demanding an apology. Fauntleroy and Hinton, JJ., dissenting.

Davis & McIlwaineAov plaintiff in error.

R. Taylor Scott, Atty. Gen., for the Commonwealth.

Lacy, J. This is a writ of error to a lodgment of the circuit court, Greensville county, rendered at the special term of that court held on the 8th day of January, 1890; and is to a second conviction of the plaintiff in error of murder in the first degree for a homicide committed on the 26th day of December, 1886. The first conviction was brought here on writ of error, and decided March 7, 1889, when the judgment was reversed for misdirection by the circuit court in its instructions to the jury, which is reported at page 867 of 85 Va., and page 418 of 9 S. E. Rep. Upon the second trial, which was had in the said circuit court, the plaintiff in error was again convicted of murder in the first degree, and the case was brought to this court, as before, by writ of error.

The errors assigned are, so far as exceptions appear upon the record: (1) That the accused, being sworn as a witness in his own behalf, and having testified that the deceased had abused his wife by speaking slanderous words concerning her, was asked whether the woman in question was actually lawfully married to him. (2) That the circuit court misdirected the jury to the prejudice of the accused as to the law of the case. (3) That the circuit court overruled his motion to set aside the verdict and grant him a new trial, because the verdict was contrary to the law and the evidence as set forth in lull under his second bill of exceptions; and the error assigned at the hearing here that the record does not affirmatively show that any venire facias was ever issued in the case for the summoning of the grand jury. The record sets forth the caption of the indictment and the indictment in full in the county court, where the indictment was found, and sets forth that in the said court, on a day named, certain named persons, at the court-house of the said county, in the said court, were sworn a special grand jury of inquest in and for the body of the county of Greensville, and, having received their charge, were sent out of court, and after some time returned into court and presented an indictment for felony, a true bill; and then follows the indictment in full. Being arraigned thereunder, the accused elected to be tried in the circuit court, as his right was, and in the said last-mentioned court he pleaded not guilty, and was convicted as stated; and there was no objection of any sort taken to the manner of summoning the grand jury, until after verdict and judgment upon appearance here to prosecute his writ of error on other grounds.

In the first place, there does not appear to be any irregularity in the mode of summoning the grand jury. Nothing upon that subject appears upon the transcript of the record as sent up to the circuit court upon the prisoner's election to be tried there. Section 4016 of the Code of Virginia provides that in such case the trial shall be in the county court, "except that a person to be tried for any felony for which he may be punished with death may, upon his arraignment in the county court, demand to be tried in the circuit court having jurisdiction over the county for which said county court is held. Upon such demand the accused shall be remanded for trial in the said circuit court, and all the material witnesses desired for the prosecution or defense shall be recognized for their attendance at such trial. When a person is remanded as aforesaid by a county court, the clerk thereof shall certify and transmit to the clerk of the court in which such person is to be tried a transcript of the record of the proceedings in said county court in relation to the prosecution, and copies of the indictment and recognizances and other papers connected with the case. Such transcriptand copies shall be used with the same effect as the originals." The transcript is to begin with the indictment and recognizances, and other papers connected with the case are to follow as stated. These papers are all sent up, and all appear to be in due and regular form. No venire facias for the summoning of the grand jury appears on this transcript, nor does the accused make any objection on that ground, but proceeds with the trial. Are we to presume here that because no venire facias was sent to the circuit court with the transcript required by law, therefore no venite facias ever issued? It is the prosecution in this case that is to be brought up with the transcript, and that begins with the indictment, which must have been found in due course of law; and the person accused has the right to have the law complied with in the matter of summoning and in the organization of the grand jury and the impaneling of that body; and the courts afford some remedy for every violation of a person's rights. While a defendant may not go into the question of the evidence before a grand jury, nor the question of the swearing of the witnesses there, as there is then only an ex parte hearing of testimony, and there may be no witnesses, the grand jurors finding upon their owu knowledge, not a question of guilt or innocence, but that an offense is charged to have been committed, but if there be un incompetent grand juror, to whom exception is to be taken, or when as to the whole body, as for instance that the grand jury consisted of too many members, or too few, or that it was otherwise incompetent, or an irregularity in the summoning or impaneling of the grand jury or the selecting "of the jurors, or in any case where the authority of the body under the law of the land is wanting, and there is an illegal constitution or organization, an opportunity is afforded the accused who is thus unlawfully charged to effectively except to such error, because he cannot be tried for a felony until he has been legally indicted. This objection being as to matter before the trial begins and preliminary there to it must be drawn to the attention of the court by plea before pleading to the merits. This must be done then in some way. There are some defects that may be reached by motion to quash, but it is sometimes by challenge, and, when that method is not used or not recognized, plea in abatement is the usual and proper method. If a grand juror is incompetent to serve as such personally, — that is, when he lacks some requirement of the law, or when he has some quality which, under the...