Williams v. Commonwealth

• Decision Date: 10 January 1889
• Citation: 8 S.E. 470,85 Va. 607
• Parties: Williams v. Commonwealth.
• Court: Virginia Supreme Court

8 S.E. 470

(85 Va. 607)

Williams

v.Commonwealth.

Supreme Court of Appeals of Virginia

January 10, 1889

1. Criminal Law—Conduct of Trial—Instructions.

Where a criminal case is submitted to the jury without any instructions asked, and the jury, after being out four hours, ask for instructions on the question of reasonable doubt, and the court fully and correctly instructs the jury on that point, it is not error to exclude other instructions then offered by defendant, as coming too late.

2. Homicide—Murder—Evidence.

Where it appears that accused was an habitual companion in crime of one C.; that a policeman, in attempting to arrest C. and a companion at night, was killed by the companion; that accused was in company with C. a few minutes before the killing; that his burglar's nippers were found on the spot where the killing occurred; and that he was a fugitive from justice, —a verdict of guilty of murder in the second degree will not be set aside.

3. Criminal Law—Plea—Former Acquittal.

A plea setting out that when his associate, C, was tried, accused was a fugitive from justice, and that C. was acquitted, and that therefore accused was acquitted, is bad.

4. Jury—Competency—Opinion.

Where a juryman states on his examination that he had read the evidence on the trial of C, and had formed an opinion, but not a positive one; that he could try the case fairly on the evidence, —he is competent. ¹

5. Homicide—Evidence—Res Gestae.

The bullet taken from the body of the deceased, which was of the same kind as that carried by a pistol habitually carried by accused, and burglar's nippers found on the scene of the killing and identified as those of accused, are properly admitted as part of the res gestae.

6. Criminal Law—Evidence—Indictment for Other Offense.

The record of an indictment in a foreign state against accused at the time of the homicide is admissible as showing a motive for resisting the arrest.

7. Same—Evasion of Arrest.

Evidence that, after the killing, accused evaded arrest for some time, and after arrest broke jail, and remained at large for some months, and desperately resisted attempts to rearrest, is competent.

8. Jury—Summoning—By-Standers.

Under Code Va. § 4019, providing that in cases of felony the court may direct another venire facias, and cause a jury to be summoned from the by-standers or from a list furnished by the court, where five persons are summoned from the by-stand ers to complete the panel the judge is not required to sign the list.

Error to corporation court of Alexandria.

W. Williams, J. R. Caton, and J. H. Green, for plaintiff in error. R. A. Ayers, Atty. Gen., for the Commonwealth.

Lacy, J. This is a writ of error to a judgment of the corporation court of Alexandria city, rendered on the 14th day of July, 1888. The plaintiff in error was indicted in the said court for murder, and was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for five years; whereupon he applied for a writ of error to this court, which was awarded. The case was not argued here by the attorney general, who stated that he doubted the propriety of the action of the judge of the said corporation court in the matter set forth in the ninth bill of exceptions, but would submit the question for the court's decision, which is as follows: That after the evidence and argument of counsel, the case was submitted to the jury without instruction being asked by either side, and the jury retired to consult of their verdict, and after about four hours were sent for by the judge, and asked for their verdict. They responded that they had not agreed upon a verdict, and the foreman then said that some of the jury "would like to have a 'reasonable doubt' defined; " whereupon the counsel for the defendant asked two instructions. The court gave one, and rejected the other; and the commonwealth's attorney asked one, which was given. The instruction given at the instance of the defendant was this: "The jury are instructed that a reasonable doubt is such a doubt as may be honestly and reasonably entertained as to any substantial and material fact essential to prove the offense charged. " The instruction given at the instance of the commonwealth was as follows: "Reasonable doubt must be based upon the evidence, or that is suggested by the evidence, or grows out of the evidence itself. It must not be an arbitrary doubt, without evidence to sustain it. It must be serious and substantial in order to warrant an acquittal. It must be a doubt of material fact or facts necessary for the jury to believe to find a verdict of conviction, and not of immaterial and non-essential circumstances, "—which the court gave. The instruction asked for by the defendant, and refused, was as follows: "Unless the jury shall believe from the evidence that the prisoner is guilty of the crime of which he stands indicted, beyond a reasonable doubt, they shall find him not guilty; and unless they believe the evidence is of such a character as to exclude every reasonable hypothesis of his innocence, they shall find him not guilty. " This instruction was not rejected by the judge because of any supposed inaccuracy therein, but because, as a matter of practice, the judge thought it best to restrict the instructions to a full and complete response to the inquiry made of him by the jury. As a matter of practice, both sides had waived their right to ask instructions for the jury before the case was submitted to the jury for decision; and neither side could claim the right to call the jury back to give them instructions, except by leave of the court. It was, however, proper for the court to fully and completely respond to inquiry which might come from the jury for information touching their duties; and if this was done, and correctly done, then neither side had any valid right to demand more. We think the response made by the court to the inquiry of the jury on this point was fully and correctly made, and that there was no error in refusing other instructions asked at that time, especially if refused, as was the case here, because they came too late. We are of opinion, therefore, that there is no error in this action of the corporation court.

The tenth assignment of error is that the court refused to set aside the verdict, and grant a new trial, upon the motion of the accused; and the evidence is certified, which, by law, will be considered in this court as upon a demurrer to the evidence by the plaintiff in error. The case upon the evidence is, briefly, that on the night of the 14th of May, 1887, (there having been a circus performance in the city of Alexandria that day,) two men were hanging about a restaurant in the night-time, which had taken in a good deal of money during the day, and approached a witness on the sidewalk and asked the time at 20 minutes before 12 o'clock; one standing off and avoiding observation, and moving off when approached, and both going in during the evening, and callingfor drinks. For some cause, which we cannot know, as he was slain that night, Policeman Arnold had his suspicions aroused concerning these men, and they, for some cause not explained, went off and hid themselves in the circus lot, and in the ring now altogether vacated by the circus, which had left, and one lay down under the edge of the raised earth, on the south side of the ring, the other on the north side of the ring. Policeman Arnold called on the witness Padgett to go and assist in making an arrest, and went with Padgett to the ring, gave Padgett his club, and he kept his pistol. As they neared the ring Arnold said to Padgett: "You take the man on the south; I will take the one on the north. " Witness knocked his man down, and finally took him, with help; but Arnold was shot and killed by the other man, who retreated, and got away. The man taken was Curran, and the prisoner and Curran had been seen together, and recognized by a witness, who...