Fortune v. Commonwealth, 112 S.E. 861 (VA Supreme Court 1922)

State: Virginia
Date: June 15, 1922
Defendant: Fortune

Heywood Fortune v. Commonwealth


133 Va. 669; 112 S.E. 861; 1922 Va. LEXIS 126

June 15, 1922


Aubrey E. Strode, for the plaintiff in error.

John R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon   M. Bazile, Second Assistant Attorney-General, for the Commonwealth.


Sims, J., after making the foregoing statement, delivered the following opinion of the court.




There is one assignment of error touching a remark of the learned trial judge before the jury during the trial, which we need not deal with, as the case must be reversed on other grounds and no occasion for such a remark is likely to arise on a new trial.

The question presented by the remaining assignments of error will be disposed of in their order as stated below.     1. Did the court, upon the mere objection of the attorney for the Commonwealth to their accuracy, err in refusing to admit in evidence the depositions of Will Hamlett and of the widow of the deceased before the coroner at the inquest, as reduced to writing by an amanuensis present at the time, then and there read over to the witnesses, who authorized the coroner, according to his testimony, to sign their names thereto as their depositions and who then and there accordingly signed such names to the depositions?

This question must be answered in the affirmative.

Two positions are taken by the Attorney-General on this subject:

First: It is urged that the court committed no error in refusing to admit the depositions in evidence upon the attorney for the Commonwealth making objection to their accuracy.

Such mere objection was not sufficient to establish the fact that the depositions were inaccurate. Indeed, absolute accuracy was not essential to their admission in evidence. How accurate or inaccurate they were was a question which was open for testimony pro and con and went merely to the weight to be given them by the jury and not to their admissibility in evidence.

[3, 4] The testimony of the coroner on the subject was sufficient to authenticate the depositions so as to make them at least prima facie evidence of the testimony of these witnesses as given at the inquest. And the accused was entitled to have the jury consider whether such depositions, subject to such impeachment of their accuracy as the Commonwealth could produce, affected the credibility of the testimony of these witnesses, or either of them, on the trial, and, if so, to what extent.  Wormley’s Case, 10 Gratt. (51 Va.) 658, 688-9; N.Y. , P. & N. R. R. Co. v. Kellam, 83 Va. 851, 860, 3 S.E. 703.

Secondly: It is urged that, as several witnesses were introduced for the accused who contradicted Will Hamlett in his testimony on the trial, to the effect that he had never made the statement as to the rock throwing at any other time than upon the occasion a few hours after the homicide, when he claimed the accused forced him to do so, the accused had successfully impeached the witness Hamlett on this subject without the aid of the depositions aforesaid, and, hence, the accused was not hurt by the refusal of the court to admit the depositions in evidence, so that if that action of the court was error, it was harmless error.

This position, however, does not at all reach the consideration that the accused had the right to introduce the depositions as bearing upon the credibility of the widow. And, as bearing upon the credibility of Will Hamlett, the depositions under oath constituted a different character of evidence from the other impeaching testimony aforesaid, and, hence, was not merely cumulative, so that it cannot be said to have been harmless error to refuse to admit this evidence, even as to Will Hamlett’s credibility on the subject of the rock throwing.

[5,  6] 2. Did the court err in ruling that the testimony of Will Hamlett, in answer to a question by counsel for the accused on cross-examination, denying that the coroner had verified the deposition of the witness given at the inquest by going over it with the witness at the time and asking him if it was correct, was collateral matter upon which the answer of the witness was conclusive upon the accused, so that the truth of such testimony could not be enquired into, as a result of which ruling the court excluded the testimony of the coroner to the contrary?

The question must be answered in the affirmative.

The rule is undoubtedly well settled that a party is bound by the answer of a witness to a question on cross-examination upon a collateral matter. But whether the deposition in question had been verified by the coroner was not a collateral matter in this case. The question of the verification was directly in issue because it involved the weight and effect to be given the deposition as bearing upon the enquiry of whether the testimony of Will Hamlett before the coroner affected the credibility of the testimony of such witness, and also that of the widow, given upon the trial of the case. Therefore the testimony of the coroner in question was material to this issue and should not have been excluded, but should have gone to the jury along with the depositions and the testimony of Will Hamlett on the subject, for their consideration and for their determination of whether certain portions of the testimony of Will Hamlett and of the widow on the trial were true.

As said on one cross-examining a witness, in Welch v. Insurance Co., 23 W. Va. 288, 303: “It is true, if he examined him as to a collateral fact, he must take the answer and cannot contradict it. Spencely v. DeWillot, 7 East 108; Rex v. Watson, 2 Stark. 116. But this rule does not extend to cross-examination upon facts material to the issue. And he may inquire into other material facts to the issue than those elicited by the party calling the witness, and, if the answers are not satisfactory, he may, by any legal proof, contradict or discredit them. 1 Stark. Ev. 164 (Metc. I. & G. Ed. 1876).”

3. Did the court err in refusing to give instruction 4, asked for by the accused?

The question must be answered in the negative.

This instruction, as applicable to an attack upon one   within his own curtilage (and the accused was within his own curtilage in the instant case), would have been correct if it had stopped with the word “attack.”   But the additional language, “and to subdue the aggressor or to compel him to leave the premises,” rendered the instruction incorrect.

[8, 9] One, in his own curtilage, who is free from fault in bringing on the combat, when attacked by another, has the same right of conduct, without any retreat (i. e. to stand at bay and resist as fault), even to the taking of life, that one has when within his own home. See note to 5 Am. & Eng. Anno. Cas. 999 and cases cited, among them Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086, approved in Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051. What force one, on his own premises, may use to eject another therefrom, short of endangering human life or of doing great bodily harm, was the subject of consideration in Montgomery’s Case, 98 Va. 840, 842-3, 36 S.E. 371; Montgomery v. Commonwealth, 99 Va. 833, 835-6, 37 S.E. 841. But in no case, even within one’s own home, or curtilage, is a person wholly justified in taking the life of another, who has entered the home or curtilage peaceably on an implied license, merely to punish or subdue him or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony.

As said in 1 Bish. New Cr. Law (8th Ed.), sections 857, 858: “* * the general rule is that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor.   If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the —

“Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like — cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, ‘a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life’ * *.”

But the same learned work continues, in section 858, as follows:

“1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *.”

“2. Putting out of the Castle. — If a man enters another’s dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.

* * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling-house, will constitute felonious homicide.”

There is no evidence in the case in judgment tending to show that the deceased entered the premises   of the accused by force. He was there, and was greeted in a manner which indicated that he was there by permission of the accused, before the affray began. His subsequent conduct, granting that it was misconduct, did not justify the killing of him, unless that conduct was such as to justify it on the part of the accused under the settled doctrine applicable to the killing of an assailant by one in defence of his own person.

Therefore, none of the instructions in the case should have been predicated upon the existence or non-existence of the circumstance of the ordering of the deceased off the premises, since that is an immaterial circumstance so far as the instant case is concerned and could serve no purpose but to mislead the jury, unless they were more fully instructed on that subject than they were.

Parrish’s Case, 81 Va. 1, is cited and relied on for the Commonwealth. In that case the court was divided, there being a bare majority of one for the majority opinion. The holding of that opinion on the subject of the relation of Parrish to the deceased cropper is in conflict with Lowe v. Miller, 3 Gratt. 205, 46 Am. Dec. 188, not cited in the opinion, and is otherwise, as we think, unsound in its holding with respect to the principles of law applicable to the facts of that case, so that the court, as now constituted, feels constrained to disapprove of such holding. However, of that case this should be said: The decision was placed both on the ground that the killing was done in order to prevent the forcible entry of the assailant into a building within the curtilage, by breaking and entering, and that, too, in the night time (which was held to have been a felony committed in the presence of the accused), and on the ground that the killing was in self-defense.  4. Did the court err in refusing to give instructions 6 and 10 asked for by the accused?

This question must be answered in the negative.

Instruction 6 is correct as an abstract proposition of law, but it is so general in its terms that it is open to misconception. It is not sufficiently specific in pointing out that the right to kill under the circumstances mentioned begins and ends with the apparent necessity therefor in order to protect the accused from death or great bodily harm. The same principle is covered by and is better   expressed in instruction 7, asked for on behalf of the accused.

Instruction 10 contains the reference to the immaterial circumstance of the ordering of the deceased off the premises, which, as aforesaid, could serve no useful purpose except to mislead the jury, unless they were more fully instructed on that subject. With the omission of such reference, this instruction was a proper instruction.

[13-15] 5. Did the court err in refusing to give instructions 5 and 7 asked for by the accused?

This question must be answered in the affirmative.

These instructions correctly stated the law as applicable to the evidence; were proper instructions and should have been given; unless covered by the provisions of the instructions which were given. This does not appear to be the case. Instruction 7, given by the court, is the only instruction which makes any approach to covering the rule of law embodied in the instructions 5 and 7 now under consideration. As we shall see, however, when we come to specifically consider instructions 7 and 8, given by the court, instruction 7, as given, erroneously bases the justification for the action of the accused solely upon the abstract proposition of what a reasonable man similarly situated   would have believed, omitting all provision with respect to what the accused actually believed and with respect to what was his actual motive in killing the deceased. But for instruction 8 this may have been harmless error, and the refusal of the instructions in question asked for by the accused might have been harmless error, if instruction 7 as given had not been accompanied by instruction 8; for instruction 7 as given was more favorable to the accused than he was entitled to have the jury instructed. Under that instruction, standing alone, he might have been acquitted although the jury may have believed from the evidence that he did not in fact believe that he was in imminent danger of death or serious bodily harm and did not in fact shoot the deceased in order to avert that danger. But when we read instruction 8, given by the court, we see that it is so linked with instruction 7, as given, in its reference to the action of the hypothetical reasonable man mentioned, under the actual, not the reasonably apparent circumstances, as to be plainly calculated to mislead the jury, in that it diverted their minds from the consideration of what was the actual motive of the accused as deduced from his situation and the circumstances as they reasonably appeared to him at the time, and left the jury wholly uninstructed upon that important feature of the case, which would have been correctly covered by instructions 5, 7 and 9, as asked for by the accused. Hence, instruction 7, as given, cannot be said to have properly supplied the place of the instructions 5 and 7 in question.

[16] 6. Did the court err in refusing to give instruction 8, asked for by the accused?

This question must be answered in the negative.

This instruction embodies the same legal principle as that which is embraced in instruction No. 4, which was   given by the court.  Litton’s Case, 101 Va. 833, 44 S.E. 923; Potts’ Case, 113 Va. 732, 73 S.E. 470. The phraseology of the latter instruction was, however, as we think, preferable in that it more clearly expressed the legal principle involved. The court was, therefore, plainly right in using instruction No. 4 in announcing such principle to the jury, in preference to giving the refused instruction in question. And, since instruction No. 4 was given, it was of course unnecessary for any other instruction to have been given on the same subject.

[17] 7. Did the court err in refusing to give instruction 9 asked for by the accused?

This question must be answered in the affirmative.

This instruction correctly states the law as applicable to such a case as that in judgment. See the citations from Bishop above; also Stoneman’s Case, 25 Gratt. 887; Brown’s Case, 86 Va. 466, 10 S.E. 745; Field’s Case, 89 Va. 690, 16 S.E. 865; Byrd’s Case, 89 Va. 536, 16 S.E. 727.

[18] 8. Did the court err in giving to the jury the initial instruction, which is unnumbered, to the effect “that the issue which they are trying is whether the killing of John Bays by Heywood Fortune was justifiable or not?”

This question must be answered in the affirmative.

This instruction uses the word “justifiable” without qualification. That carries the meaning of entirely or wholly justifiable. The instruction, therefore, withdrew from the jury all consideration of the subject of whether the killing, although not wholly justifiable, amounted only to voluntary manslaughter. It is true that instruction 1, given, defines voluntary manslaughter, but the initial instruction in effect tells the jury that this is not a subject which they can consider;   so that, at the least, there was a conflict in the instructions which was likely to have misled the jury.

[19] 9. Did the court err in giving instructions 7 and 8?

This question must be answered in the affirmative.

Instruction 8 made the justification of the killing depend entirely upon the actual necessity therefor to prevent death or great bodily harm to the accused. This set up a wrong standard for the jury on this subject. Moreover, it wholly ignored the settled doctrine, above referred to, that a necessity reasonably regarded as real by the actor, who   vouches it as inducing his action, is regarded as in fact real, so far as the charge of criminal conduct on the part of the actor is concerned. As noted above, instruction 7, as given, did not cure this defect. And there was no instruction given the jury which embodied this doctrine, so important to be considered by the jury, from the standpoint of the accused, in determining his guilt or innocence. This left the jury wholly uninstructed upon a theory of the defense applicable to the evidence for the accused, embodying which proper instructions,  to-wit, instructions 5, 7 and 9 were asked for by the accused and refused.

In view of the character of the errors aforesaid, as affecting the right of the accused to present his side of the case fairly and fully before the jury, it plainly appears that the errors were prejudicial to the accused’s right of defense, hence, the case will be reversed and a new trial granted.

Reversed and new trial granted.