Johnson v. Commonwealth , 135 Va. 538 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

There is but one assignment of error which raises the following question:

1. Was there sufficient evidence to support the verdict of the jury in its finding, in effect, that the fatal shot fired by the accused was not in self-defense?

The question must be answered in the negative.

The testimony of Carter and Askew, to the effect that when the body was first found the deceased had no knife in his hand and that the knife found in the hand of the deceased by the policeman when he came was placed there by one of the two unknown men said to have been seen by Askew to have come and pushed the body over and run away some time after the shooting and after Carter had seen the body and gone to inform a policeman of the homicide, is absolutely discredited by the physical facts that the policeman found the knife in the hand of the dead body; that the shot passed through the heart, which meant instant death; that the dead hand could not have picked up the knife, which lay some distance from it immediately following the coming and going of the two unknown men, according to the testimony of Askew. The physical facts demonstrate that the knife was in the hand of the deceased when he was shot and fell.

Moreover, the' testimony for the Commonwealth, when all of it is regarded as true, does not show that the quarrel on the porch about liquor immediately preceded the shooting, as must have been the fact to sustain the theory of the Commonwealth and the verdict of the jury. According to the testimony for the Comm on - wealth that quarrel may have been between different persons from the accused and the deceased, and may have preceded the quarrel between them which brought on the assault upon the accused on the part of the deceased and the consequent shooting of the latter by the accused. Certainly there was an interval between the quarrel about liquor and the shooting, according to the two witnesses for the Commonwealth who testified about such quarrel. The witness, Carter, said that, after hearing that quarrel going on, he went from the house of the accused to witness’ house, the third house away, on the same street, and went into his house before he heard the fatal Shot. He does not say how long a time it took him to do this. He does not even state that he went directly home or that he did not stop on the way. The witness, Fannie Smart, said that, after hearing the quarrel about liquor, she “went back in the house and when (she) came back (she) heard the gun fire and (she) opened the door.” This language is ambiguous. The witness does not explain in her other testimony what she meant by this language—whether she meant that she went back in the house and after-wards came back to the door when she heard the shot; or that when she went back in the house she heard the shot. When we remember that the accused is entitled to every reasonable doubt on the subject of every link in the chain of the evidence against him, we must construe this language as saying that she went back into the house and afterwards came back to the door, and that it was then that she heard the shot. And she does not say how long she was back in the house before she came back to the door and heard the shot. Moreover, the testimony for the Commonwealth and for the accused concurred in tending to show that there was no woman present at the quarrel about liquor; and that there was a woman present at the quarrel immediately preceding the shooting.

Further: In a locality such as that in which the homicide occurred, as shown by the record, doubtless many quarrels occur in the night time. We do not think that the evidence for the Commonwealth, giving it its full value, establishes that the quarrel about liquor and that immediately preceding the homicide were the same.

On the whole we feel constrained to reverse the ease and award the accused a new trial.

Reversed and remanded.