Shiflett v. Commonwealth , 143 Va. 609 ( 1925 )

Prentis, P.,

delivered the opinion of the court.

The facts and the questions presented by the record are sufficiently stated and discussed in the dissenting opinion. We are in accord, except as to instruction No. 8, given for the Commonwealth, but as to this a majority of the court are of the opinion that the giving of this instruction does not constitute error.

The crucial question, as it seems to us, is not whether the instruction took away from the jury the right to pass on the question of manslaughter, but whether or not it so invaded the province of the jury as to deny to the accused his right to have them determiné whether he had supported his plea that he had killed the deceased in self-defense, or that he had killed him wilfully, deliberately and with premeditation. We do not think it should be construed as directing the jury not to find the accused guilty of manslaughter or to deny him any other legal right.

It is impossible to read the evidence and the nine instructions given for the- accused without seeing that he chiefly relied upon self-defense. The jury were told with unnecessary repetition that if the accused apprehended that he was in danger of death or serious bodily harm at the time of the homicide, they must acquit him, and instruction “C” given for the accused presents concretely the defense relied on by the accused for his acquittal. This instruction No. 8, on the other hand, fairly construed with reference to the evidence, merely presents the contrary view of the prosecution. In terms it cautioned the jury that in order to convict of murder in the first degree there must be “a premediated or previously formed design to kill;” that “it should be a course determinately fixed on before the act done, and not brought about by provocation at the time of the act, or so recently before as not to give time for reflection;” that only if the accused “as he approached the deceased, and at the distance of about ninety yards from him, or nearer, then formed the design and came to the determination to kill the deceased and, in pursuance of this design, ran or trotted the said distance of ninety yards and killed the deceased, without any provocation then received, it was murder in the first degree.”

It seems to us apparent that, assuming all of the statements in the instruction to be true (and there was evidence to support each of these statements), this crime was a wilful, deliberate and premeditated killing. Its precise form was doubtless suggested by the precise nature of the defense and the form of the instructions given for the defense.

Suppose a case in which the evidence for the prosecution showed an intentional killing by poison administered by the accused to the deceased, and the defense interposed to be that the administration was inadvertent; could it fairly be said that it would be error for the court to instruct that if the jury believed that it was administered with murderous intent, they must find the accused guilty of murder in the first degree? Surely not, it must be conceded. It is equally apparent, we think, that in this instruction the jury were clearly cautioned that before they could convict the accused of murder in the first degree they must find from the evidence every fact necessary to constitute that crime. Whatever fair criticism may be made of its form, we think that it is an accurate statement of the law applicable to the issues raised by the evidence, and that the jury could not possible have misunderstood that the issues of fact so raised were submitted to them for determination. It cannot be error, we think, in a case in which the evidence will support a verdict of murder in the first degree, to tell the jury that if they are convinced of its truth they may so find.

The judgment will, therefore, be affirmed.

Affirmed.