Gaines v. Commonwealth

Citations

• 88 Va. 682
• 14 S.E. 375
• 1892 Va. LEXIS 19

Syllabus

<p>1. Criminal Proceedings — Witnesses for Commotwealth— The prosecutor is not bound to call every witness present at the transaction which is the subject of the indictment. Hill’s Case, ante p. 633.</p> <p>2. Idem — Trespasser—Force to expel. — In trial of an indictment for murder, after the court had given for the commonwealth, without objection, the instruction following: “ If the jury believe from the evidence that prisoner went to the store of deceased for the purpose of killing him, and was there abusive of him, and that deceased ordered him out and he refused to go, whereupon deceased, in order to compel him to go, used only the necessary force against prisoner, who thereupon fatally shot deceased, the conduct of the prisoner made him a trespasser; and the fact that deceased, thus provoked by prisoner, did use such force, did not justify or excuse prisoner in killing him, as it was prisoner’s duty to leave the store when so ordered by deceased, and he was bound to submit to such force as was necessaiy to make him go ; and if, while such force was being applied, he killed, deceased with a deadly weapon, it was murder,” prisoner moved the court to add the following: “ But if the jury believe from the evidence that when prisoner recovering from the shock of the blow inflicted with the weight, he found deceased drawing a pistol from his pocket to shoot him, he had the right to defend himself in any way to preserve his life, or to prevent great bodily harm ”;</p> <p>Held :</p> <p>Refusal to give the addendum, no error.</p> <p>3. Idem — Evidence certified — Section 3484 — Case at bar. — Upon the certificate of the evidence in the case here, the verdict of guilty of murder in the first degree should not be disturbed.</p>