West, J.,
delivered the opinion of the court.
Burn V. Gray and William Gray were jointly indicted for the murder of J. Peyton Stewart, a policeman of the city of Petersburg, Virginia. The indictment contains two counts, the first charging that Burn V. Gray murdered Stewart, and that William Gray was present aiding and abetting in the murder; and the [574]*574second charging that William Gray murdered Stewart and that Burn V. Gray was present aiding and abetting in the murder. The second count was abandoned at the trial.
Upon the trial, Burn V. Gray was convicted of murder in the first degree, and his punishment fixed at death; while William Gray was convicted of murder in the second degree and given fifteen years in the penitentiary. To thé judgment sentencing them in accordance with verdicts of the jury, this writ of error was awarded.
The defendants’ petition assigns as error the court’s action — (1) In refusing to give instruction No. 1 for the defendants; (2) in refusing to permit defendants to introduce evidence of Dr. George H. Reese to prove certain statements made by officer Stewart at the hospital soon after he was shot; (3) in giving instruction No. 13, offered by the Commonwealth; (4) in giving instruction No. 22, upon the motion of the Commonwealth; and (5) in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
Assignments of error 1, 3 and 4 relate to the action of the court in giving and refusing instructions. It does not appear from the record that the defendants stated to the trial court the ground of their objection to the rulings of the court in these matters, as required by Rule 22 of this court. In such a situation, we cannot consider these assignments of error. Levine v. Levine, 144 Va. 330, 132 S. E. 320; Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478; Kelly v. Schneller, 148 Va. 573, 139 S. E. 275; Kercher’s Admr. v. R. F. & P. R. Co., ante page 108, 142 S. E. 393, decided to-day.
Assignment of error No. 2 relates to the court’s refusal to permit Dr. George H. Reese to repeat to the jury the following statement made to him by officer [575]*575Stewart between 8 and 8:45 o’clock, about fifteen minutes after he arrived at the hospital, on the morning he was shot: “He (Stewart) said in substance, that he was shot during the scuffle, with his own gun, which he at that time still had hold of together with the man he was tussling with, and added something of the nature of its being a very foolish thing to have let it occur. In other words, that he could have used the gun and prevented it, but that he was dallying with the boy and let it happen.”
It appears from the evidence that officer Stewart told the defendant, William Gray, who was suspected of being a vagrant, to show him something that would prove his identity; that Gray did not produce such proof and Stewart, without objection from William Gray, ran his hands over him and discovered a pistol concealed in one of his pockets, and at once drew his pistol on Gray and told him to hold his hands up. He then commanded a by-stander, Henry Lewis, to take the pistol from Gray and give it to him, which Lewis did by placing the pistol in the same hand in which Stewart was holding his own pistol. A scuffle then ensued in which Gray was endeavoring to take his pistol from Stewart. He grabbed Stewart by the wrist and Gray’s gun fell on the sidewalk, and was kicked by Gray towards the northeast corner of the market, which was near by. In the scuffle over the officer’s gun, while both of them had their hands above their shoulders, the gun went off. Immediately Burn V. Gray came from around the corner of the market in a stooping position, and ran up and struck Stewart on the head with the end of his gun and then stepped back and opened fire on him. His gun snapped twice and fired three times. As the second shot was fired, officer Stewart “grabbed his stomach and hollered, [576]*576‘Oh Lordy.’ ” It is admitted that the gun which was takén from the person of William Gray in the scuffle at the market is the one from which the bullet, taken from Stewart’s body, was fired. It was a 32:20 police-special, and Burn Y. Gray also had in his possession a pistol of the same make and caliber. It is also conceded that officer Stewart’s gun was a 38 Smith and Wesson,, and that the bullet taken from Stewart’s body could not have been fired from a No. 38 pistol.
It will be observed that Stewart did not say that he shot himself, but that he was shot, during the scuffle, with his own gun, which he and William Gray had. hold of. Stewart’s statement negatives the contention that he fired the fatal shot, when he says it was a. foolish thing to have let it occur when he could have used the gun and prevented it.
It is conceded that this evidence was not admissible as a dying declaration. In our view, it was. not admissible as a part of the res gestae. It was a. narration of the events which had already occurred, and not “events speaking for themselves through the words and acts of participants;” and therefore not a. part of the res gestae.
In 1 Wharton’s Criminal Evidence (3d ed.), section 264, page 606, we find this: “The rule before us, however, does not permit the introduction, under the-guise of res gestae, of a narration of past events made after the events are closed, by either the party injured or by the by-standers.”
The statement is plainly hearsay, and its admission would have violated the rule against the admission of hearsay evidence. Besides, it appearing-conclusively from the physical facts, and being admitted by the defendants, that the shot which killed Stewart was not fired from his gun, defendants were-[577]*577not prejudiced by the court’s refusal to allow them to introduce this evidence, which could not overcome the physical facts. Stewart evidently thought that the shot which struck him came from his own gun, but it is conclusively shown that it did not.
This assignment is without merit.
The fifth and last assignment of error involves the court’s action in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
Considering the evidence and all proper inferences to be drawn therefrom, from the standpoint of the Commonwealth, the jury were warranted in finding the foregoing and the following facts:
Burn V. Gray and William Gray are brothers, and were from West Virginia. They were beating their way over the country, in search of work, and had been to several cities in West Virginia and in Virginia, including Roanoke and Norfolk, Virginia. They beat their way on a freight train from Norfolk to a point about eight miles from Petersburg, where they spent the night and walked into Petersburg early in the morning of May 24, 1927, as they said, on their way to Pennsylvania, looking for work.
J. Peyton Stewart, police officer of the city of Peters-burg, first saw them on the sidewalk at the “New Market,” on Harrison street, soon after they arrived. He saw they were strangers and apparently thought they were without visible means of support, and asked them: “Haven’t you got a job yet?” They replied that they had just arrived. He asked where they were from and what were their names. They told him their names and that they came to Petersburg from Norfolk. He asked Burn V.
Free access — add to your briefcase to read the full text and ask questions with AI
West, J.,
delivered the opinion of the court.
Burn V. Gray and William Gray were jointly indicted for the murder of J. Peyton Stewart, a policeman of the city of Petersburg, Virginia. The indictment contains two counts, the first charging that Burn V. Gray murdered Stewart, and that William Gray was present aiding and abetting in the murder; and the [574]*574second charging that William Gray murdered Stewart and that Burn V. Gray was present aiding and abetting in the murder. The second count was abandoned at the trial.
Upon the trial, Burn V. Gray was convicted of murder in the first degree, and his punishment fixed at death; while William Gray was convicted of murder in the second degree and given fifteen years in the penitentiary. To thé judgment sentencing them in accordance with verdicts of the jury, this writ of error was awarded.
The defendants’ petition assigns as error the court’s action — (1) In refusing to give instruction No. 1 for the defendants; (2) in refusing to permit defendants to introduce evidence of Dr. George H. Reese to prove certain statements made by officer Stewart at the hospital soon after he was shot; (3) in giving instruction No. 13, offered by the Commonwealth; (4) in giving instruction No. 22, upon the motion of the Commonwealth; and (5) in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
Assignments of error 1, 3 and 4 relate to the action of the court in giving and refusing instructions. It does not appear from the record that the defendants stated to the trial court the ground of their objection to the rulings of the court in these matters, as required by Rule 22 of this court. In such a situation, we cannot consider these assignments of error. Levine v. Levine, 144 Va. 330, 132 S. E. 320; Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478; Kelly v. Schneller, 148 Va. 573, 139 S. E. 275; Kercher’s Admr. v. R. F. & P. R. Co., ante page 108, 142 S. E. 393, decided to-day.
Assignment of error No. 2 relates to the court’s refusal to permit Dr. George H. Reese to repeat to the jury the following statement made to him by officer [575]*575Stewart between 8 and 8:45 o’clock, about fifteen minutes after he arrived at the hospital, on the morning he was shot: “He (Stewart) said in substance, that he was shot during the scuffle, with his own gun, which he at that time still had hold of together with the man he was tussling with, and added something of the nature of its being a very foolish thing to have let it occur. In other words, that he could have used the gun and prevented it, but that he was dallying with the boy and let it happen.”
It appears from the evidence that officer Stewart told the defendant, William Gray, who was suspected of being a vagrant, to show him something that would prove his identity; that Gray did not produce such proof and Stewart, without objection from William Gray, ran his hands over him and discovered a pistol concealed in one of his pockets, and at once drew his pistol on Gray and told him to hold his hands up. He then commanded a by-stander, Henry Lewis, to take the pistol from Gray and give it to him, which Lewis did by placing the pistol in the same hand in which Stewart was holding his own pistol. A scuffle then ensued in which Gray was endeavoring to take his pistol from Stewart. He grabbed Stewart by the wrist and Gray’s gun fell on the sidewalk, and was kicked by Gray towards the northeast corner of the market, which was near by. In the scuffle over the officer’s gun, while both of them had their hands above their shoulders, the gun went off. Immediately Burn V. Gray came from around the corner of the market in a stooping position, and ran up and struck Stewart on the head with the end of his gun and then stepped back and opened fire on him. His gun snapped twice and fired three times. As the second shot was fired, officer Stewart “grabbed his stomach and hollered, [576]*576‘Oh Lordy.’ ” It is admitted that the gun which was takén from the person of William Gray in the scuffle at the market is the one from which the bullet, taken from Stewart’s body, was fired. It was a 32:20 police-special, and Burn Y. Gray also had in his possession a pistol of the same make and caliber. It is also conceded that officer Stewart’s gun was a 38 Smith and Wesson,, and that the bullet taken from Stewart’s body could not have been fired from a No. 38 pistol.
It will be observed that Stewart did not say that he shot himself, but that he was shot, during the scuffle, with his own gun, which he and William Gray had. hold of. Stewart’s statement negatives the contention that he fired the fatal shot, when he says it was a. foolish thing to have let it occur when he could have used the gun and prevented it.
It is conceded that this evidence was not admissible as a dying declaration. In our view, it was. not admissible as a part of the res gestae. It was a. narration of the events which had already occurred, and not “events speaking for themselves through the words and acts of participants;” and therefore not a. part of the res gestae.
In 1 Wharton’s Criminal Evidence (3d ed.), section 264, page 606, we find this: “The rule before us, however, does not permit the introduction, under the-guise of res gestae, of a narration of past events made after the events are closed, by either the party injured or by the by-standers.”
The statement is plainly hearsay, and its admission would have violated the rule against the admission of hearsay evidence. Besides, it appearing-conclusively from the physical facts, and being admitted by the defendants, that the shot which killed Stewart was not fired from his gun, defendants were-[577]*577not prejudiced by the court’s refusal to allow them to introduce this evidence, which could not overcome the physical facts. Stewart evidently thought that the shot which struck him came from his own gun, but it is conclusively shown that it did not.
This assignment is without merit.
The fifth and last assignment of error involves the court’s action in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
Considering the evidence and all proper inferences to be drawn therefrom, from the standpoint of the Commonwealth, the jury were warranted in finding the foregoing and the following facts:
Burn V. Gray and William Gray are brothers, and were from West Virginia. They were beating their way over the country, in search of work, and had been to several cities in West Virginia and in Virginia, including Roanoke and Norfolk, Virginia. They beat their way on a freight train from Norfolk to a point about eight miles from Petersburg, where they spent the night and walked into Petersburg early in the morning of May 24, 1927, as they said, on their way to Pennsylvania, looking for work.
J. Peyton Stewart, police officer of the city of Peters-burg, first saw them on the sidewalk at the “New Market,” on Harrison street, soon after they arrived. He saw they were strangers and apparently thought they were without visible means of support, and asked them: “Haven’t you got a job yet?” They replied that they had just arrived. He asked where they were from and what were their names. They told him their names and that they came to Petersburg from Norfolk. He asked Burn V. Gray for an identification card, and he handed him a note book from his pocket which the officer examined and handed back to him. [578]*578Satisfied with the statement of Burn V., he turned to William Gray and asked him if he had a letter or anything to identify himself with, and he said he had nothing. Stewart, without any objection on William’s part, ran his hand into the latter’s pocket for letters, and seeing the bib of his overalls was bulged, he asked what that was, and William said it was a cap and started to pull it out, when Stewart said: “It is a pistol. I will take care of that.”
Three witnesses testified that they saw Burn V. Gray shoot Stewart. One or more of them saw him run up behind officer Stewart while he was tussling with William Gray over the possession of the pistol, and strike Stewart on the side of the head with the butt of his pistol, and then step back and fire three shots at Stewart, one of which proved to be the fatal shot. Both of the defendants left the scene immediately after the shooting and attempted to make their escape. Burn V. Gray hid on the lot of a lady on Brown street. The pistol from which the fatal shot was fired was found upon the same lot. The pistol had in it three empty shells, two cartridges that had been snapped, and one loaded shell.
Officer Stewart did not lay his hands upon Burn V. Gray, or harm him in any way. Burn V. Gray shot Stewart while he was endeavoring to arrest William for carrying a concealed weapon and to protect himself from William’s assault.
The verdict against Burn V. Gray is amply supported by the evidence and is not contrary to the law.
As it seems to us, the verdict against William Gray is without evidence to support it. He was convicted of' aiding and abetting Burn V. Gray in the murder of officer Stewart. The evidence fails to disclose any word or act spoken or committed by William Gray [579]*579with intent to aid or abet Burn V. Gray in shooting officer Stewart. To sustain the verdict against William Gray, the Commonwealth relies solely upon the fact that William Gray, after his pistol had fallen from the hands of Stewart to the sidewalk, kicked it in the direction of the northeast corner of the market, in which direction Burn V. Gray had gone. Burn Y. Gray was not then in sight of William, and William evidently knew that Burn Y. had his own police special in his pocket and did not need another pistol. It seems just as certain that William kicked the gun to get it out of the reach of the officer with whom he was tussling as that he kicked it with the intent that Burn Y. Gray should get it and shoot the officer.
A man’s mere presence when a crime is committed will not make him an aider and abetter in the commission of the crime. To make him an aider or abetter, he must be shown to have “procured, encouraged, countenanced, or approved,” the commission of the crime. There is no evidence that William Gray did any of these things.
The judgment against Burn V. Gray will be affirmed. The judgment and verdict against William Gray will be set aside and annulled, and the case remanded for a new trial if the Commonwealth shall be so advised.
Affirmed as to Burn V. Gray.
Reversed as to William Gray.