Tucker v. Commonwealth

Citations

• 88 Va. 20
• 13 S.E. 298
• 1891 Va. LEXIS 3

Syllabus

<p>1. Criminal Proceedings—Conviction.—Until proved guilty accused is presumed innocent, and to warrant conviction proof must exclude every rational hypothesis of innocence.</p> <p>2. Idem—Case at bar—Accused and deceased had long been inimical, and had made frequent threats to kill one another. On day of homicide both were seen going towards an orchard, part whereof each possessed. The former with his gun, two children aged ten and twelve, respectively, a sled and horse, was going for apples. The latter, also with his gun, followed at no great distance, and a few hours later ivas found near fence of orchard dead, with head crushed and back pierced by a bullet. A commonwealth’s witness testified that on that day from mountains three-quarters of a mile off, he heard accused’s voice swearing, &c., in the orchard, saw smoke ai-ise, heard report of gun, and later a second, and immediately a man ran and disappeared in orchard. The children, for the defence, testified that they were -with accused; that he did not shoot, but that some unseen person fired twice at him, one ball passing through his hat, the other through his shirt; that he did not hear of homicide for several hours, and before hearing had started for a warrant to arrest deceased—</p> <p>Held :</p> <p>Evidence insufficient to warrant verdict of guilty of murder in the second degree, and a new trial should have been granted accused.</p> <p>3. Appellate Practice—Evidence certified,.—Where exceptor’s evidence does not conflict with exceptee’s or with any inference which the jury might have reasonably drawn therefrom, such evidence is not waived by the rule under $ 3484..</p>