Livingston v. Commonwealth

14 Va. 592
Supreme Court of Virginia·Decided November 7, 1857·Published

Opinion

Daniel, J.

The indictment is in the common law form 0f an indictment for murder. In the demurrer to it, which was overruled by the Circuit court, the causes of demurrer are not stated. And as to those causes which have been assigned by the counsel for the prisoner, in the argument here, they seem to be fully answered by the cases of Miller v. The Commonwealth, 1 Va. Cas. 310; Vance v. The Commonwealth, 2 Va. Cas. 162; and Wicks v. The Commonwealth, 2 Va. Cas. 387.

In the last mentioned case, the General court held, unanimously, that the true object and effect of our act of 1802-3 was not to create two offences out of the rime of murder, but to arrange the various kinds of arder at the common law, under the two denominaons of murder in the first degree, and murder in the oecoad degree; and to annex to the cases in each denomination a punishment corresponding in severity to the degree of atrocity with which they might be perpetrated, and by which they would be marked as belonging to the one or the other of said denominations of murder. And that the legislature contemplated no change in the frame of the indictment, they further held, was plainly to be inferred, from the clause requiring the juries, in all cases of indictments for murder, when they find the party accused guilty of murder, to ascertain in their verdict whether it be murder in the first degree or second degree; and also from the clause requiring the court, in case of conviction by confession, to proceed by examination of witnesses to determine the degree of crime, and to give sentence accordingly. These clauses, they held, would have been wholly unnecessary, if it had been in the contemplation of the framers of the act that the indict[597]*597ment should in each, case set out specially the fea. by which the offence should be marked as belon0.„0' to murder in the first or murder in the second degree : inasmuch as a general verdict of guilty on the one hand, or a confession of guilt on the other, under such an indictment would necessarily, without any further resort to the jury or the examination of witnesses, ascertain the degree.of the offence beyond all doubt.

In conformity with these views, the practice has hitherto generally, if not uniformly prevailed in our courts, of prosecuting and punishing all acts of felonious homicide whatsoever, under indictments for murder, framed as at common law.

The same practice has prevailed in Pennsylvania from an early period, under the act of the legislature of that state, of the 22d April 1794, from which the first section of our act of 1802-3 is taken. White v. Commonwealth, 6 Binn. R. 179; Wharton’s Am. Cr. Law 410.

No injustice or inconvenience is shown to have resulted from the practice; and I do not know of any act of our legislature which can be construed as indicating a purpose to "change it. I see no reason for disturbing it.

I can see no objection to the admissibility of the testimony, the refusal to exclude which, forms the ground of the prisoner’s first exception. It seems now to be well settled, that whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, may be given in evidence. If they were the natural language of the affection, whether of body or mind, they furnish (it is said) satisfactory evidence and often the only proof of its existence : And whether they were real or feigned is for the jury to determine. So also the representations, by a sick person, of the nature, symptoms and effects of the [598]*598y under which he is laboring at the time, are received as original evidence. 1 Greenl. Evi. 179; Aveson v. Lord Kinnaird, 6 East’s R. 188. Such representations (it is said) are admitted from necessity, and as being in the nature of pars res gestee. Roulkac v. White, 9 Ired. R. 63. And hence it is the practice to receive them, though made by persons who, if produced in court to testify, would be properly rejected as incompetent witnesses. Frequent instances of this will be found in the reports of cases in the courts of the southern states, growing out of actions on warranties of the soundness of slaves. In such actions, where the question is as to the diseased state of the slave at a particular time, the appearance and actions of the slave, his exclamations or declarations, at the time, as to his pains and other symptoms, are all regarded as part of the res gestee, and admitted on that ground. Such declarations, it was said by the court in Jones v. White, 11 Humph. R. 268, drawn from the slave by .those investigating the character and symptoms of the disease, become part of that investigation, and as such may properly go to the jury. The admissibility of such evidence is further sustained'by the cases of Marr v. Hill, 10 Missouri R. 321; Grey v. Young, Harper’s S. C. R. 38; Biles v. Holmes, 11 Ired. R. 16; Allen v. Vancleave & Kelso, 15 B. Monr. R. 236; Clancy v. Overman, 1 Dev. & Batt. 402.

In one of these cases, however (Marr v. Hill, &c.), it was said by the court that the mere declarations of a slave that he was diseased, without proof of any symptoms or appearance of disease, would be mere hearsay, which ought not to affect the rights of any person, and would be clearly inadmissible. Without stopping to enquire whether .this dictum correctly states a qualification to the rule, it is obvious to remark that such a qualification can have no application, where, as here, the enquiry is as to the condition [599]*599of a person who had been assaulted and beaten onc¡K two hours before the period at which the declarations as to her sufferings were made. On the contrary, the circumstances under which the question, as to the admissibility of the evidence, arises here, seem to me to bring this case directly within the influence of the decision in Biles v. Holmes. There the object was to show that a slave had been permanently injured by a severe blow on the head; and the plaintiff' was allowed to prove that “ he complained much of headache when exposed to the sun, and stated his inability to work in the sun.” And it does not appear from the report of the case that the offer on the part of the plaintiff to prove such complaints and statements, had been preceded by proof of any other evidence of the supposed malady. And in the case of Aveson v. Lord Kinnaird, it was said by Lawrence, J. that it was in every day’s experience in actions of assault, that what a man has said of himself to his surgeon, is evidence to show what he suffered by reason of the assault. Aveson v. Lord Kinnaird, 6 East’s R. 188, already cited.

Doubts have been expressed in some cases whether the admissibility of such evidence should not be restricted to the proof of complaints and statements made by the sick or suffering persons to their physicians. On a reference, however, to the cases which I have cited, it will be seen that the courts recognize no distinction, in respect of competency, between such declarations, when made to physicians, and when made to unprofessional persons. I think the evidence was properly received.

The objections to the testimony of Dr.

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Livingston v. Commonwealth, 14 Va. 592 (Va. 1857).

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