Whitehurst v. Commonwealth

• Decision Date: 20 November 1884
• Citation: 79 Va. 556
• Parties: WHITEHURST v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

79 Va. 556

WHITEHURST v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 20, 1884

Error to judgment of corporation court of Norfolk city, rendered 27th March, 1884, on an indictment against Charles L Whitehurst for the murder of Junius A. Rogers on 20th January, 1884. Verdict, guilty of murder in the second degree, and confinement in the penitentiary twelve years. Judgment accordingly. To this judgment Whitehurst obtained from one of the judges of this court a writ of error and supersedeas. Opinion states the case.

Walke & Old, for the plaintiff in error.

Attorney-General F. S. Blair, for the commonwealth.

OPINION

HINTON J.

The prisoner, Charles L. Whitehurst, was indicted in the corporation court of the city of Norfolk, jointly with William A. Kemp and James T. Guy, for the murder of one Junius A. Rogers. Upon the trial he was found guilty of murder in the second degree, and sentenced to confinement in the penitentiary for a term of twelve years. Whereupon he obtained a writ of error from one of the judges of this court. As grounds for a reversal of that judgment he assigns four errors, which will be considered in the order in which they are presented in the petition.

The first of these is, that the court below refused to allow the verdict and proceedings of the coroner's jury to be read in evidence; and excluded the question, " was there any evidence before the coroner's jury that the blow on Rogers was inflicted by that axe?" and also excluded so much of the answer to said question as had been made in the following words, to-wit: " And they seemed to think it had something to do with the killing." No authority is cited in support of this exception, and indeed it is doubtful if any can be. But be this as it may, we are satisfied that there is no sound principle upon which the exception can be sustained. As to the branch of it which relates to the refusal of the court to admit the proceedings and verdict of the coroner's jury, it may be observed that these proceedings are usually conducted in this state, in the absence of the accused, without the aid of counsel, and often in the absence of the most material witnesses, both for the prosecution and the defence. To admit those proceedings, and a verdict thus arrived at, to be used as evidence upon the trial, to influence, perhaps to control, the verdict of the jury, would, in our judgment, lead to the subversion and final overthrow of the jury system; whilst in nearly every case the rights of either the commonwealth or the accused would be inevitably prejudiced. Crite v Commonwealth, Va. L. J., Sept. No., 1881, p. 568. Upon the second branch of this exception it is only necessary to say that it is amenable to the objection that it calls for the mere opinion of the witness as to the tendency of the evidence adduced before the coroner's jury in reference to the axe, and can be supported upon no recognized principle of law known to us.

The next assignment of error is, that the court, after the jury had been some time out, and had returned into court and announced that it was impossible for them to agree, upon the statement of two jurors that the jury desired to know, from the court, the different grades of murder and manslaughter instructed them as follows: " Murder, at common law, is when a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice aforethought, express or implied. It will be observed that the essential ingredient of murder as defined, is malice, and that it may be either express malice or implied malice. Express malice does not mean, necessarily, malice expressed in words, but is defined to be when the act is done with a sedate and deliberate mind and formed design, which condition of the mind and formed design being a mental condition and not ordinarily susceptible of other kinds of proof, may be evidenced by the external circumstances attending the execution of the act; such as, for instance, lying in wait, antecedent threats, old grudges, and need not be of any special duration before the blow--a moment is sufficient. Implied malice is where the law implies malice from the act itself, from which death ensues; as, for instance, when one, without any sufficient provocation at the time, slips up and without warning kills another, malice is presumed from want of provocation; when one kills another with poison, malice is presumed from the use of poison; and when one deliberately uses a deadly weapon and death ensues, malice is presumed from the deliberate use of a deadly weapon. Such is murder at common law. But the statute of Virginia, without changing the definition of murder, says that murder, where the malice is evidenced in certain ways, shall be murder in the first degree, and where evidenced in other ways shall be murder in the...