Commonwealth v. Jones

Distinction between murder in the first and murder in the second degree, within the meaning of the statute 1 Rev. Code, ch. 171. § 2. considered, and the distinction between the two crimes explained. When a motion is made for a new trial, in a capital case, on the ground that the verdict is not warranted by the evidence, the court is not bound to re-examine the witnesses and state the evidence verbatim, but may state the material facts proved and evidence adduced at the trial from the judge’s own notes, aided by those of the counsel on both sides. By-standers are called as jurors in a capital case, and, at the instance of the accused, sworn and examined touching their indifferency; and then elected by the prisoner and sworn of the jury: upon objections to the indifferency of these jurors, discovered after the trial, not directly inconsistent with what was disclosed by the jurors themselves on their examination touching their indifferency, the court ought not to set aside a verdict of guilty, just in itself, though the objections be such, that if known and disclosed before the jurors were elected and sworn, they might have been good cause of challenge to the jurors; much less, if the objections be such as would not have been good cause of challenge. A person accused has a right to challenge a juror for cause, before he is sworn, and the court is bound to judge whether the cause is sufficient or no to sustain the objection: but when, after a juror has been elected and sworn, and after trial and verdict, tire prisoner asks a new trial on grounds of exception against him, existing before he was elected and sworn, such motion is addressed to the sound discretion of the court; and in the exercise of this discretion, the court ought to consider the whole case, and be satisfied that justice is done. There are two errata in the above report of this case, so material that it is deemed best to note them here. In the report of the juror Gilliam’s first examination, there is a line omitted: alter the word “ evidence,” p. 606. 8th line from the bottom, read “he had expressed an opinion, as others had, in conversation.” And in the report of the juror Angle’s first examination, p. 607. 16th and 17th lines, instead of “he had expressed no opinion,” read “he had expressed an opinion,” &c.

John M. Jones was indicted, and tried, for the murder of George Hamilton, in the circuit court of Lynchburg. The jury found him guilty of murder in the first degree. He moved the court to set aside the verdict, and direct a new trial, on the ground that the verdict was not warranted by, the evidence. The court intimated its opinion that the verdict was right: upon which his counsel asked the court to , spread the evidence upon the record, and to state it from the mouths of the witnesses. The judge said he would make an accurate state of all the facts which he considered proved at the trial, with the aid of his own notes and those of the counsel on both sides; but he refused to re-examine all the witnesses, for the purpose of stating their evidence verbatim. The circumstances of the case, as stated by the court, were as follows: On the 22d May 1829, between three and four of the clock in the afternoon, Jones the prisoner, and Hamilton the deceased, and several others, met, casually, at a grocery in the town of Lynchburg, not far from the river, in a disreputable part of the town. The grocery was kept by an uncle of Jones, and Jones was abiding there with him at the time. The whole party was in peace, and had been drinking ; when one Betsey Fulcher, a common prostitute, with whom Jones, (a young unmarried man) had had for sometime an illicit intercourse, came into the grocery, and soon insulted Hamilton in very gross language: he warned her to desist; she repeated the insult; and he gave her a severe slap on the face. She appealed to Jones for protection. Jones said he would not suffer any woman, especially a woman he had a feeling for, to he so treated in his presence: Hamilton said he could whip her and her protectors: they instantly approached each other as if to fight; hut the other persons present interposed, and prevented them from coming to blows; and they were soon, apparently, reconciled. Shortly after, Hamilton stepped out of the house, as if with design to go away; but he stopped at the door, and said, in a loud voice, that if any were dissatisfied with what he had said or done, he could whip them. No notice was taken of this challenge; and Hamilton went off towards his boat. After he was gone, the woman Fulcher told Jones, she did not think he would suffer her to he abused by any man, without protecting her; upon which Jones hade her be easy, and said lie could whip any one man, hut could not fight, a community of men. Jones then left the house, but shortly returned, apparently in a passion, pulled off his coat, abused Hamilton, and said he would kill him, or any other person that would strike a woman he had a feeling for, and he would see his heart’s blood before sunset. One Trimble, a boatman from Bockbridge, advised Jones to let Hamilton alone; that he was too stout for him, and was a violent man when angered. Jones giving no heed to this advice, and continuing his abuse and threats against Hamilton, one M’Caul, who had witnessed the quarrel, left the house, and went towards the river where the boats lay: on his way he met Hamilton, who said he was going to the grocery; that he apprehended Jones and Trimble would get into an affray, and said he wanted to see what was the matter. M’Caul told him that Jones and Trimble were not quarrelling; that Jones was abusing and threatening him (Hamilton), and was armed with a dirk; and he advised him not to go to the grocery, where Jones was, but to return to his boat. Hamilton returned to his boat, and armed himself with a large bludgeon (part of a boat pole) saying Jones had drawn a dirk upon him, and he meant to avenge himself with that stick; and then, in spite of M’Caul’s earnest intreaty and advice, he persisted in his resolution to return to the grocery; but he said he would not interrupt Jones, unless he attempted to strike him with a dirk. Hamilton, and M’ Caul with him, proceeded to the grocery; they stopped near the door; Jones and others were still in the house; they heard Jones’s voice still in passion; M’ Caul endeavoured to persuade Hamilton not to go in, and got between him and the door; they heard Jones say (alluding to Hamilton, as M’Caul supposed, but not naming him) “damn him, I will see his heart’s blood before sunset.” Hamilton hearing this, exclaimed, “ by G—d, I will not take that—stand out of the way;” and, pushing M’Caul aside, stepped into the door, and struck Jones a blow on the forehead, with the bludgeon, which staggered him: the blow indicted a wound an inch and a half long, and cut to the bone; it bled profusely. M’Caul, with the aid of others present, got H&milton out of the house; and the door was closed before any other-blow was struck. Hamilton began to pick up stones; and Jones, shortly after, appearing at an open window, Hamilton shewed a determination to throw a large stone at him, which M’Caul endeavoured to prevent him from doing; but Hamilton said, “stand out of the way—damn him I will kill himand immediately threw the stone at him, which struck 7 % J the facing of the window. The stone was so large, and thrown with such force, that, in the opinion of the by-standers, if it had struck Jones, it might have killed him. Hamilton picked up other stones, to throw at Jones; and, some of the witnesses said he did throw more than one; others, that ho did not. Hamilton was then persuaded to go away; some of the witnesses said, he again threatened that he would kill Jones; others, that they heard no other threats than those above mentioned. He was advised to throw away his bludgeon—that it was too large to strike a man with; but he carried it away with him. There was one point touching the affray in the house, as to which the witnesses differed: M’Caul said, that when he and Hamilton got to the door, Jones was brandishing a dirk; and several persons, who were in the house, said, he was brandishing the dirk shortly before Hamilton came in, and swearing he would kill Hamilton, or any other man who should strike a woman he had a feeling for, and that he would have his heart’s blood before sunset: but it was deposed by another witness, that Jones had, at his instance, put up the dirk before Hamilton entered the house and struck him. It was doubtful too, whether Jones saw Hamilton, before he came into the grocery and gave him the blow: the probability was, that he did not. Jones had had no previous acquaintance with Hamilton, who was a boatman from Rockbridge, and, it was proved, was a stout man, apt to quarrel in his cups, and when angered very violent and careless of consequences, but of a generous temper when cool, and not apt to harbour resentment for things past. At the time of this affray, Jones had been drinking, and was under the excitement of strong drink; some thought him quite drunk; and there was evidence, that excitement of that kind, sometimes produced in him a state of phrenzy. Other witnesses said, that Jones had indeed been drinking, but was not drunk, and by no means deprived of his reason. Hamilton and Jones were both strong athletic men; Hamilton somewhat the larger of the two. After this affray, Hamilton went to a lumber house near the river, where he gave a boastful account of his victory, declared his willingness to renew the contest, and raising his stick, said “ this never fails me.” And after Hamilton’s departure, a friend of Jones washed the wound on his forehead, applied lint to it, and bound it up : Jones borrowed a clean waistcoat, turned in the collar of his shirt which was bloody, tied a black cravat over it, and left the grocery, apparently composed, saying he was going to get a clean shirt. The time, from the end of the affray till Jones’s departure from the grocery, was, according to one witness, ten minutes, according to another, half an hour. The next evidence concerning Jones’s actions, placed him in the town, about 200 yards from the grocery, at the shop of a gunsmith named Lewis, where he applied to borrow a gun, saying he wanted to shoot some body. The young man in the shop asked whom ? He named no person, but raised his hat, and pointed to the wound on his forehead, from which the blood appeared to be still issuing through the lint and bandage. The young man purposely handed him a defective gun, the main spring of the lock being broken. Jones examined the gun, snapped it, and said it would not do; he wanted one that would fire. He was told he could have no other gun in the absence of Lewis: Jones inquired where he was: he was in the blacksmith’s shop, in the cellar beneath : Jones went thither, and' applied to him, and then returned with Lewis, to the gunsmith’s shop; Lewis offered him the same defective gun; Jones rejected it, repeating that it would not do; he wanted one that would fire. Lewis then handed him another gun, which Jones examined, snapped, primed and flashed; and said, “ this will do.” He proceeded to load the gun (where he got the ammunition, did not appear). He was at Lewis’s some, ten or fifteen minutes. He went off from thence with the gun to the market house, about 250 yards from hewis’s ° J . shop; and thence proceeded down the most public street of the town, towards the toll house of the bridge across the river, near which stood the lumber house, in which Hamilton had been, as above stated, and which was 300 or 400 yards from the market house, and not far from the place where the boats lay in the river. As he passed near the toll house, where one of his uncles lived, this uncle, who had heard of the affray between him and Hamilton, called to him to come back; he refused to do so, and went on. At this time, several persons were near and following Jones; and it was said and repeated (by whom the witnesses did not know) that he was going to shoot Hamilton. He proceeded to the lumber house (the same where Hamilton had been, but from which he had shortly before retired) and stepping in, with a drawn dirk and the gun in his hands, he pointed the gun at a man there, saying “ damn you, I know you by your whiskersthe man turned to look at him, upon which he retired backwards out of the door, saying nothing. He immediately turned the corner of the lumber house, on the river bank where the boats lay, in one of which was Hamilton with three others : Hamilton had come into the boat a few minutes before, with his stick in his hand, which he had now laid down; he was sitting on the gunwale of the boat; he said a man was coming to shoot him; and one of the company doubting this, he repeated it, and said he had seen him coming down the hill with a gun. About this time, those in the boat heard some movement on the river bank, near the corner of the lumber house, and looking that way, saw Jones coming down the bank, with the dirk and gun in his hands—the gun raised and pointed as in the act of taking aim. Jones said, “ aye, damn you, you are there, are you; I know you by your whiskers.” The whole party in the boat, including Hamilton, who had now no weapon of any kind in his hands, attempted to escape from the boat by the head, which was near the bank, lying towards Jones; Hamilton endeavouring to keep the others between him and Jones, and they endeavouring to escape from the danger of Jones’s fire, which was directed towards Hamilton.- Hamilton called to Jones, to keep his distance, adding he had done him no harm; another of the party called to Jones, and said “ no shooting here.” Hamilton was the hindmost of the party. Two had escaped from the boat: the third, immediately behind whom Hamilton was, had just leaped from the head of the boat, and had not time to turn, when Jones fired the gun at Hamilton then standing on the head of the boat. Hamilton stood a moment, and Only saying “ boys, I am gone,” fell over the boat into the water. Jones’s conduct immediately after the fatal shot, was variously represented by the witnesses. One said, he immediately put his gun down, and advancing with his dirk drawn, said “ damn you, if I have not killed you, I will finish you;” then, changing the dirk from his right to his left hand, he raised Hamilton’s head, and placed it on a rock, out of the water,'saying “ damn you, you are dead enough.” Another said, that the first blood he saw after the shot, seemed to him to issue from Hamilton’s .breeches, and as he did not fall, he inferred he might not be mortally wounded, and seeing Jones quickly put down his gun, and advance with his dirk, he thought Jones was under the same impression, and advanced with the dirk lest Hamilton might yet be able to. resent the shooting; but Hamilton fell, and then Jones halted, and said, “ damn you, you thought I would not shoot, but damn you, I have killed you f’ then, changing the dirk to his left hand, he raised Hamilton’s head out of the water, said he was dead enough, and placed the head on the rock. Several of the witnesses concurred in this account of Jones’s language and conduct after the shot; and several of them concurred in saying, that Jones said, if Hamilton was not dead, he would finish him, or words to that effect. All concurred, that Jones made no attempt to use the dirk. Several witnesses said, that before Jones advanced to raise Hamilton out of the water, some one cried, “ take him out of the water;” and one witness thought this was Jones, and that . . w . he said, “ if no one will do il31 will do it myself,” and then advanced. After this, Jones left the boat, took up his gun, ascended the hank, brandished the gun over his head, said he had killed the damn’d rascal, and there were two more he intended to kill, M’ Caul and Trimile ; and began to re-load his gun. M’ Caul passing by, asked Jones why he wished to kill him; Jones said, “ damn you, I will kill you any how,” and advanced upon him with his dirk. M’Caul retreated. M’Caul was well acquainted with Jones, and had been on friendly terms with him. M’Caul and Trimble both said, there was no grudge between them and Jones, that they knew of. When M’Caul retreated from the dirk, Jones took up his gun, and as he walked off, said, “ he had killed the damn’d rascal, and he was glad of it, and that he would do the like by any man who should strike the woman he loved, and any man of spirit would do the like, and now they might hang him for it.” The several witnesses made various estimates of the time that elapsed from the end of the affray in the grocery till the act of shooting—from ten minutes to an hour and a quarter—the judge comparing these estimates, and considering all the circumstances, thought it at least three quarters of an hour, most probably more. Jones was shortly after arrested, making no resistance to the officer, and no attempt to fly. Before the magistrate, he admitted he had borrowed and loaded the gun, and prepared himself, for the express purpose of killing Hamilton; and said, that any man of honor and spirit would do the same under like provocation : and he acknowledged, that what the witnesses said, was true, except in one particular; in explaining which, he said, that Hamilton could not have seen him as he approached, for that he had kept the lumber house between them. At this time, the wound on Jones’s forehead was still bleeding. ‘ After the court had intimated its opinion, that the verdict was right, and at a subsequent day of the term, the prisoner’s counsel moved the court to set aside the verdict, on the ground of objections discovered since the trial, to three of the jurors, Wilkins, Gilliam and Angle. These jurors had been called as talesmen ; and before they were sworn of the jury, they were, at the prisoner’s instance, examined on oath as to their indifferency. 1. Upon this examination, Wilkins said, he had heard part of the evidence at the examining court, and had expressed some" opinion as to the probable result; but he thought he could give the prisoner as fair a trial as if he had heard nothing; he was conscious of no bias or prejudice to prevent it. Upon which the prisoner elected to be tried by him. u The prisoner now proved, by one witness, that he had heard Wilkins say, before the trial, that he was at the examining court, and had heard part of the evidence, and if he was on his jury he should hang him; but that Wilkins was a man of good character, and did not speak as if he had any prejudice against Jones, but as if he was speaking in relation to the supposed truth of what he had heard. It was testified by another witness, that he had heard Wilkins say, in a general conversation concerning Jones’s case, that if he was on the venire he should hang him: and by a third, that he heard Wilkins say he thought Jones would be hanged. 2. When Gilliam was examined, he said he had heard none of the evidence against the prisoner; he had heard his case talked of in the town, by various persons, but he did not know that any of them had heard the evidence; he had no bias or prejudice on his mind; and thought he could give the prisoner as fair' a trial as if he had heard nothing of his case. The prisoner elected to be tried by him. The prisoner now adduced a witness, who said, he had heard Gilliam say he thought from the evidence he had heard, that Jones ought to be hanged: that he had frequently heard him repeat the same sentiment: that he had a conversation with the juror the same day (and before) he •' •'.v. J was empanneled, when he repeated the opinion, that Jones would be hanged, and if he was on the jury, he should be compelled, from the evidence he had heard, to hang him; and that he told Gilliam, that as he had expressed his opinion, he could not be on the jury, and Gilliam seemed to understand the same. On cross examination, this witness said, he could not say, that Gilliam told him he had heard any part of the evidence, nor did he know that he ever had; he inferred that he had: that Gilliam was a respectable man, and deserved full credit on his oath. 3. When Angle was examined as to his indifferency, he said he had heard no evidence, but had heard various reports of what the evidence was j he did not recollect from whom; he did not know, whether those reports were true or not; they were different from each other; he had expressed no opinion of what would be the probable result, in conversation with others; he had no bias on his mind to prevent him from giving the prisoner a fair trial; he had no prejudice against the prisoner or his family, any way; and he thought he could give the prisoner as fair a trial as if he had heard nothing about the case. Upon this, he was elected by the prisoner. The prisoner now proved by a witness, that shortly after the homicide was committed, he and the juror were in conversation about it, when Angle “ allowed” the prisoner would be hung; the witness “ allowed” he would not; and a gallon of whiskey was bet upon the event. Angle said, if witness knew as much as he did, he would not bet. He was not far off when prisoner killed Hamilton, and heard the evidence, as witness thought, before the inquest. Angle did not speak as if he had any personal prejudice against Jones, nor does the witness think he had. Angle is a respectable man, and deserves to be credited on oath. The juror (Angle) being present was sworn, and stated, that he had made the bet with the witness as he mentioned ; it was a casual thing which had escaped his recollection, and he should never have thought to demand the whiskey, nor does , , . , , TT , , . he suppose the witness would. He never thought of it, at or during the trial; it had altogether escaped his mind, until reminded of it by the witness after the trial; and he repeated, that he was neither at the called court, nor present at any examination of witnesses, at any time, respecting the case, nor heard any statement of the evidence from any body that had heard it, so far as he knew, before the trial. The prisoner offered another witness, Martha Gilliam, who said—“ I was at Angle’s house on the day of the called court. Angle returned home. I asked him what was done with Jones. He said he did not stay to hear the trial over. I said I wished he might be cleared; he said, he wished he might be hung. I said, how can you say so, Mr. Angle ? You know that when a man is drunk, when he is in a passion, his wit is out, and he ought to be excused for his acts. Angle said, he wished Jones and all such damn’d rascals to be hung. He did not say that he had heard any part of the evidence or any part of the trial. I have heard Angle speak of the subject several times. We live close neighbours. He always said Jones ought to be hung. I am the daughter of Patterson Gilliam, who was a witness for Jones. I am no ways related to Jones, or any of his family, and but little acquainted with him.” Angle, the juror, denied having had any such conversation with Gilliam as she detailed ; and said that she had shewn great anxiety for Jones’s acquittal since the trial, and had declared she would do any thing in her power to procure his discharge. Gilliam denied this. The counsel for the prisoner also presented to the court an affidavit of the prisoner in relation to the three jurors aforesaid; which was made a part of the record. This affidavit stated, that since the rendition of the verdict, he had been informed, that the three jurors had, previous to their being empanneled, formed, and repeatedly expressed, an opinion that he ought to be hanged; and that Angle had, moreover, previously to his being empanneled, made a bet that he would be hanged, and expressed a wish that he should be hanged: that at the time the said three jurors were so empanneled, he did not know, believe, or suspect, that either of the said three jurors had expressed the opinion above stated, or he would have challenged them. The circuit court, with the prisoner’s assent, adjourned the following questions to this court: 1. Ought the verdict of the jury to be set aside, and a new trial directed, upon the state of the facts of the case, as above set forth ? 2. Ought the court, in order to prepare the state of the case, to have re-examined the witnesses, after the verdict rendered, so as to state verbatim what they said ? and having declined to do so, ought a new trial to be granted for that cause ? 3. Ought the verdict to be set aside, on the grounds disclosed by the evidence respecting the three jurors above mentioned, or either of them ? or ought the court to proceed to judgment?