Anderson v. Commonwealth, 42 S.E. 865 (VA Supreme Court 1902)



100 Va. 860; 42 S.E. 865; 1902 Va. LEXIS 93

December 4, 1902

Howell C. Featherstone and A. S. Hester, for the plaintiff in error.
Attorney-General William A. Anderson, for the Commonwealth.

JUDGES: Cardwell, J., delivered the opinion of the court.



This is a writ of error to a judgment of the Circuit Court of Campbell county affirming the judgment of the County Court of that county, sentencing plaintiff in error to the penitentiary for a term of eight years for murder.

It is argued on behalf of the Commonwealth that the bills of exception taken by plaintiff in error at his trial are not properly a part of the record here, because not tendered and signed during the term at which he was tried.

All that can be alleged in support of this contention is that the record shows that the defendant (plaintiff in error) was allowed thirty days in which to tender his bill of exception, and that he was sentenced at the same term, but that he took the thirty days or any part thereof nowhere appears. On the contrary, it appears from each bill of exception, under the signature and seal of the presiding judge, that it is “made a part of the record,” and the clerk certifies the whole, including the bills of exception, as the record of the proceedings at the trial.

Nothing affirmatively appearing in the record to show irregularity in the proceedings, it is to be taken as importing absolute verity, and presumptions of irregularity are not permitted. Gilligan’s Case, 99 Va. 816; Reed’s Case, 98 Va. 817; Dove’s Case, 82 Va. 301.

Of the assignments of error, two of them only require our consideration, as the others are not likely to arise upon another trial of the cause.
Exception is taken to the ruling of the trial court permitting the introduction of evidence showing that plaintiff in error, six weeks after the homicide with which he is charged, and twelve days before the term of the court at which he was tried began, attempted to break jail and escape.

This ruling is not erroneous. When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he does so from consciousness of guilt; and though the inference is by no means strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred. An attempt to escape or evade prosecution is not to be regarded as a part of the res gestae, but only as a circumstance to be considered by the jury along with the other facts and circumstances tending to establish the guilt of the accused. The nearer, however, to the commission of the crime committed, the more cogent would be the circumstance that the suspected person attempted to escape, or to evade prosecution, but it should be cautiously considered, because it may be attributable to a number of other reasons, than consciousness of guilt. Wharton’s Crim. Ev., secs. 750-51.

The remaining assignment of error is the refusal of the court to set aside the verdict on the ground that it is contrary to the law and the evidence.

The indictment charges that the murder, for which the plaintiff in error was tried and convicted, took place in the county of Campbell, but there is not the slightest proof in the record that such is a fact. The only proof as to the location of the crime is that it took place at “Anderson’s Store,” about a quarter of a mile or more from “Lynch’s” or “Lynch’s Station,” but neither “Lynch’s Station” nor “Anderson’s Store” is shown to be located in Campbell county.

It is contended, however, that the court should take judicial notice that “Lynch’s Station” is in Campbell county, and deduce from that fact that “Anderson’s Store” is also in that county.

“When a crime is committed in an incorporated town, the court will notice in what county the town is situated.” State v. Reader, 60 Iowa 527. It was, therefore, held in Sullivan v. People, 122 Ill. 385, 13 N.E. 248, that proof that a crime was committed in Chicago is proof that it was committed in Cook county, judicial notice being taken that Chicago is in Cook county. But courts will not take judicial notice that a particular locality is within a county; nor of the local situation and distances in a county. Note to Olive v. State of Alabama, 4 L.R.A. 33, and authorities cited.

We have been cited no authority, and we have been unable to find any, for taking judicial cognizance of the fact that a point a given distance from Lynch’s Station, an unincorporated hamlet or village, is in the county of Campbell.

All crimes are local, and must be tried in the court which has jurisdiction over the locality where they are committed. The burden is just as great on the Commonwealth to prove that the offence was committed within the jurisdiction of the trial court as it is to prove the commission of the offence itself. Fitch’s Case, 92 Va. 824, and authorities cited; also Butler’s Case, 81 Va. 159; and Savage’s Case, 84 Va. 582.

There being no proof in this case of the jurisdiction of the County Court of Campbell to try it, the Circuit Court erred in affirming the judgment of the County Court; therefore, its judgment must be reversed and annulled, the verdict of the jury set aside, and a new trial awarded.
Reversed.=P848 as it would be to hold that criminal cases only were within its purview? Is it not safer to do no violence to the language employed, to give to the words used their natural meaning and effect, and to hold that the phrase “any case” covers all cases to be tried by a jury? There is nothing in the phraseology of the statute that confines its operation either to civil or criminal cases, but both are included, and a view may, in the discretion of the presiding judge, be ordered in either case, whether there be objection on the part of either party or not; and it is a matter of common knowledge that it has been the practice in this State for a great while to permit the jury to view the premises or locality where the crime is alleged to have been committed, though we cannot recall that such has been the practice in cases in which the accused objected.

We are also of opinion that the mere preservation of the provision contained in the original English statute from which our statute (now section 3167 of the Code) was taken, relative to the costs of a view, nor the fact that the Legislature, by Act of January 18, 1888 (Acts 1887-’88, p. 18, c. 15), amending section 4048 of the Code, declared that section 3167 “shall apply to jurors and juries in all cases, criminal as well as civil,” justifies the conclusion that section 3167 was theretofore applicable to civil cases only. With reference to the first proposition, we deem it only necessary to say that, in the enforcement of the provision in the statute touching costs, the courts are controlled by it and other statutes in force in this State, in pari materia; and, with reference to the second proposition, that, in our view, the amendment of section 4048 of the Code was wholly unnecessary to make section 3167 applicable to criminal cases.

Whether or not the Act of January 18, 1888, amending section 4048 of the Code, is repugnant to section 15 of Article V. of the Constitution of this State, we do not deem it necessary to express an opinion.

Instruction No. 1 given for the Commonwealth told the jury that, if they believe from the evidence that the prisoner shot and killed the deceased, then they should presume him guilty of murder in the second degree, and the burden of proof was upon him to reduce the offence to manslaughter or killing in self-defence, and the burden was upon the Commonwealth to elevate the offence to murder in the first degree. And after argument had been made, in part, for the Commonwealth and the prisoner, the court, ex mero motu, withdrew that instruction, and gave another in lieu thereof, as follows: “The court instructs the jury that when the Commonwealth has proven that the accused has committed a homicide, and it does not appear from the circumstances given in evidence by the Commonwealth that the killing was of a lower degree than murder in the second degree or in self-defence, then it is a prima facie murder in the second degree, and the burden is cast upon the accused to prove that it was below murder in the second degree or in self-defence; and, if the Commonwealth seeks to elevate the offence to murder in the first degree, the burden is upon it to do so. Yet when the evidence is all in, then, if the evidence both for the Commonwealth and the accused leave a reasonable doubt as to the guilt of the accused, the jury must find the prisoner not guilty..” This is also assigned as error. The court is wholly unable to see any merit in this assignment. Both instruction No. 1 and the instruction given in lieu of it propound a proposition of law over and over again sanctioned and approved by this court.

The court gave eight instructions asked for by the Commonwealth, thirteen out of fourteen asked for by the prisoner, and one of its own motion in lieu of instruction No. 1 given for the Commonwealth, and withdrawn after part of the argument had been heard, as stated.

The instruction No. 9 asked for by the prisoner, and refused, attempted at great length to set out the case in all of its phases, but failed to do so; and, in some of the phases presented in it, the prisoner was certainly guilty of an offence proper to be punished, yet the instruction concluded with, “they (the jury) shall find the prisoner not guilty.” Besides, every proposition of law contained in the instruction, proper to have been given in the case, had been covered by the instructions already given. Where the instructions given for the Commonwealth and the prisoner, read as a whole, set forth the whole case correctly and fairly, as was the case here, it is not error to refuse other instructions. Reed’s Case, 98 Va. 817, 36 S.E. 399; Willis’ Case, 32 Gratt. 929.

The remaining assignment of error is to the refusal of the court below to set aside the verdict and award the prisoner a new trial. Having made a full statement of the case as disclosed by the record, it is needless to review the evidence at length.

We know of no law that justifies the taking of human life in the manner and under the circumstances narrated in this record, even if the facts and circumstances surrounding the homicide be as the prisoner would have us to believe existed when he took the life of the deceased, John Collings.

Upon the whole case, we are of opinion that it is plainly one in which the verdict of the jury should not be disturbed. Therefore, the judgment complained of is affirmed.



Buchanan, J., dissenting.

I concur in the result, but not in the opinion of the court. I do not think that section 3167 of the Code of 1887 authorizes a view in criminal cases, as the court holds. The chapter in which it is found in the Code applies solely to juries in civil cases. By the Act approved March 18, 1884 (Acts 1883-’84, p. 702, c. 523), entitled “An act to revise and digest the Code and statutes of Virginia,” it was made the duty of the revisers to collate and revise all the general statutes of the Commonwealth. In performing that duty they were required, among other things, to “arrange all the statutes under appropriate titles and chapters.”

Section 3167 of the Code is found under “Title 46,” entitled “Courts and Juries in Civil Cases” (Code, p. 731), and in chapter 152, entitled “Of Juries in Civil Cases” (Code, p. 750). These titles are parts of the Code. This is so, it seems to me, both from the language of the act directing the manner in which the Code should be revised, as well as from the fact that the titles were in the Code when it was reported to and adopted by the Legislature. This view is sustained by Judge Burks, one of the revisers. In his address before the State Bar Association in 1891 (Bar Association Report for that year, p. 110), he says: “It should be observed that the title of contents of sections prefixed to each chapter, and the headings of the revised sections taken from the title, together with the notes and marginal references to adjudged cases, were the work of the revisers, done in course of the publication of the Code after it was adopted. It was authorized by a section of the act directing the publication. That section was taken literally (with change of names) from the act directing the publication of the Code of 1849. It is hardly necessary to say that these titles, headings of sections, notes, and marginal references, prepared after the Code was adopted, and published with it, though authorized as a matter of convenience, constitute no part of the law.” His language clearly implies that the titles to the chapters were a part of the Code. Not only did the Legislature think that section 3167 of the Code did not apply to criminal cases, but that was the view of the revisers, also, for in the same address, at page 111, Judge Burks says: “Some errors of the revisers, the result of oversight while under great pressure, were discovered by them after the Code was adopted, and before it went into operation. These, at their instance, were corrected by the Legislature at the session of 1887-’88, and the amendments will be found in the acts of that session.” The act referred to by Judge Burks was Chapter 15 of the Acts of 1887-’88, pp. 15-18. By section 4048 of that chapter it is provided that section 3167, together with eleven other sections of the Code (naming them), “shall apply to jurors and juries in all cases, criminal as well as civil.”

Providing that those sections should apply to criminal as well as civil cases was not, in my opinion, amending them, within the meaning of section 15 of Article V. of the Constitution. It was merely extending their operation to another class of cases, without in any way amending or changing them. This seems to have been the view of the revisers, since the act making them applicable to criminal cases was passed at their instance, and doubtless drawn or approved by them. They would scarcely have drawn or approved an act intended to correct their own mistakes, and asked the Legislature to pass it, unless they were fully satisfied that it was not in conflict with the Constitution of the State.

That act, and not the Code, in my judgment, authorized the County Court to direct the view of which the prisoner complains.


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