Kirby v. Commonwealth

77 Va. 681, 1883 Va. LEXIS 104

• Court: Supreme Court of Virginia
• Decided: September 13, 1883
• Status: Published

Opinion

Lewis, P.,

delivered the opinion of the court.

The first question to he determined relates to the admissibility as evidence of the declarations of Mayo, made recently after the shooting occurred, to the witness, Truman Eichardson. The attorney-general insists, and the counsel for the prisoner deny, that the declarations so made are admissible evidence as part of the res gestee.

It appears, that on the night of the 3d July, 1882, a man entered the store of Mayo for the purpose, as he avowed, of making some small purchases, and two or three minutes after entering the store, without any notice or apparent provocation whatever, shot him through the head with a pistol, the ball entering at the corner of the left eye, passing through his head, and lodging under the skin at the hack of the neck. Immediately upon the firing of the pistol, Mayo put his hand to his face, felt the blood running, and exclaimed, “ Oh, my ! you have killed me.” He at once ran to the door, and crying “ murder,” walked around the house, in the dark, to the door of Truman Eichardson’s room, in the same house, a distance of eighty feet from the point in the store at which he was shot. He knocked at the door, which was opened by Eichardson as soon as he could rise from his bed and put on his pants, and the door being opened he fell into Eichardson’s arms, saying, “I am shot; Wm. Kirby (meaning the prisoner) has shot me.” At the time the shooting occurred, Mayo and his assailant were in the store alone, and immediately thereafter the latter fled. It does not appear that more than two minutes elapsed between the time of the shooting and Mayo’s declaration to Eichardson that the prisoner had shot him. At the trial Eichardson was examined as a witness, and, against the objection of the prisoner, was allowed to testify as to the declarations made to him by Mayo.

We think the testimony was properly admitted to. be weighed by the jury. In cases like the present it is essential to the admissibility of the declarations of the injured party as part of the res gestee that they be made recently after the injury, and before sufficient time has elapsed for the fabrication of a story. If made after such time has elapsed, and after the Us mota may be supposed to exist, they are no part of the res gestee, but are merely narrative of a past occurrence or hearsay, and are not admissible as evidence. Applying this test to the present case, it is plain that the prisoner’s first exception is not well taken.

Here, the declarations in question were not only made recently, but probably within two minutes, after the shot was fired. And this, taken in connection with the declarant’s condition, mental and physical, produced by the unexpected, unprovoked, and, as he supposed, fatal shot through the head, repels the idea that his declarations were fabricated. Indeed, under the circumstances disclosed by the record, it is hardly reasonable to suppose that they could have been fabricated, as both the time and capacity for reflection were wanting. Hill’s Case, 2 Gratt. 594. Nor is there anything decided in Haynes’ Case, 28 Gratt. 942, relied on by counsel for the prisoner, inconsistent with these views. That was a prosecution for larceny, and it was there held that the declarations of the prosecutor, made soon after the discovery of the larceny and after he had gone to the house of a neighbor, were not admissible. The case in its nature and circumstances so widely differs from the present case that further reference to it need not be made.

The second question relates to the admissibility of the testimony of the witness Burnley. Under the act of March 6, 1882, (Acts of Assembly 1881-82, chapter 228, page 238,) the prisoner was a competent witness, and at a former trial of the case testified in his own behalf'. A t the second and last trial, and after the evidence for the defence had been introduced, Burnley was called on by the prosecution to prove that certain statements made by the defendant’s witnesses—Armstrong and Bagby— were in conflict with the testimony of the prisoner as delivered on his examination as a witness at the previous trial. The court admitted the evidence, and the prisoner excepted.

The statute, Code 18*73, chapter 195, section twenty-two, provides that “in a criminal prosecution other than for perjury, or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.” The testimony was, therefore, improperly admitted. And as for this error the judgment must be reversed and a new trial awarded; the questions raised by the third and last bill of exceptions, respecting the sufficiency of the evidence to support the verdict, need not he considered.

The judgment is as follows:

This day came again as well the plaintiff in error by his counsel, as the attorney-general on behalf of the commonwealth, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said judgment affirming the judgment of the county court of Albemarle county is erroneous, in that the said county court erred in admitting the evidence of the witness, H. B. Burnley, to prove statements made by the plaintiff in error in his examination as a witness on the former trial, as set out in the second bill of exceptions. Therefore it is considered that the judgment of the circuit court be reversed and annulled; and this court now proceeding to render such judgment as the said circuit court ought to have rendered, it is further considered that the judgment of the said county court he reversed and annulled, the verdict of the jury he set aside, and a new trial awarded the plaintiff in error.

Which is ordered to he certified to the said county court of Albemarle county.

JüD&MENT REVERSED.