McDaniel v. Commonwealth

Citations

• 77 Va. 281
• 1883 Va. LEXIS 55

Syllabus

<p>1. Criminal Practice—New trials—Rule.—-Much, caution is used by this court in granting a new trial where it is asked solely on the ground that the verdict is contrary to evidence, great weight being given to the verdict of the jury. See Pryor's case, 27 Gratt. 1010.</p> <p>2. Idem—Murder—First degree—Second degree.—To constitute this offence the killing must be predetermined, and not under momentary impulse of passion; though the determination need not have existed any particular length of time. Prima facie, all homicide is murder in the second degree. Onus on prosecution to raise the offence to the first degree.</p> <p>3. Idem—Case at bar.—A quarrel occurred between prisoner and deceased. Former gave the latter the lie. They separated. Twenty minutes later deceased, with light walking-stick, approached prisoner, saying he would not stand what prisoner had said. Prisoner picked up a “bearing stick.” Deceased asked, “why he stood holding that stick?” Prisoner answered: “If you come here I will show you.” Deceased raised his cane to parry a blow from prisoner, and may be, struck at, or struck prisoner, who then struck deceased two blows with the “bearing-stick,” from which he died in about two hours.</p> <p>Held—(by the court):</p> <p>The presumption is not warranted from the mere use of that weapon, without any words or circumstances, other than those mentioned, tending to show the prisoner’s intent, that such intent was not to repel an attack or to inflict bodily harm, but to kill. The facts do not prove murder in the first degree.</p>