
    *JUNE TERM, 1824.
    JUDGES PRESENT.
    
      White, Dade,
    
    
      Stuart, G. Parker,
    
    
      Holmes, Saunders,
    
    
      Brockenbrough, R. E. Parker,
    
    
      Johnston, Bouldin.
    
    Reuben Wicks v. The Commonwealth.
    Criminal Law — Murder — Indictment — Necessity of Charging First Degree. — It Is not proper, or necessary, that an Indictment for murder should charge it as murder in the first degree, or use that description, which, according to the Statute, constitutes that degree of the offence.
    Same — Same—Same—Province of Jury. — An Indictment for murder, in the technical language of the Common Law, is correct, and under such Indictment, a prisoner may he convicted of murder in the first degree, and sentence of death pronounced against him, for it is the province of the jury to decide, whether he he guilty of murder in the first, or second degree.
    Same — Same—Circumstantial Evidence. — A case of conviction of murder in the first degree, on circumstantial evidence alone, and a refusal hy the Court to grant a new trial, and hy the Appellate Court to grant a Writ of Error.
    This was an application for a Writ of Error to a judgment of the Superior Court of Not-toway, whereby the petitioner was sentenced to death, for the murder of one George Hood.
    The Indictment contains two Counts ; in the first of which, the murder is charged to have been committed with a club ; in the second, with a stone. Both Counts charge the assault to have been made, and the murder to have been committed “ feloniously, wilfully, and of his malice aforethought;” neither of them charge it to have been done deliberately and premeditatedly,” nor give any of those descriptions which, by the Statute, are declared to constitute murder in the first degree.
    *The jury found him guilty of murder in the first degree. He moved the Court to arrest the judgment, on the ground, that the Indictment did not charge the offence to have been done “ deliberately and premeditatedly,” as well as “ wilfully, felo-niously, and of his malice aforethought,” nor with murder in the first degree. This motion was over-ruled. He then moved for a new trial, on the ground, that the verdict was contrary to evidence. This was likewise overruled, and judgment of death pronounced against him.
    The facts proved on the trial, are stated in a Bill of Exceptions to the opinion of the Judge, and are as follow : “ The deceased had charged the prisoner with stealing some iron from the shop of the deceased ; a warrant was issued to apprehend the prisoner ; before his trial by the committing Magistrate, he said at one time, that if Hood did not take care, he would stamp him to the earth ; at another time, that if Hood again claimed his, the prisoner’s iron as his own, he would break every bone in him, and massacre him ; and at the third time, that if Hood did not let him alone, he would break his head: This threat was expressed in a tone, and with a manner expressive of deep resentment, his countenance very lowering and angry : The next evening, he appeared in custody at colonel Jeter’s tavern where he was detained all night: The day after his examination took place, and Hood was sworn as a witness against him, and did again claim and identify the iron in question. The prisoner was committed for the larceny, but bailed. After sunset, or about dark, the deceased left Jeter’s, and went on his way home on foot. About the same time, a servant of the prisoner’s was seen at Jeter’s with a horse, enquiring for his master, and asking whether he would go home that night: Shortly after, the servant is seen returning on the horse without his master, who was left on foot at Jeter’s. When or how the prisoner left Jeter’s, did not appear. The next morning, Hood’s body was found on the road' to his house, barbarously murdered. Suspicion fell on the prisoner, the deceased being an honest and inoffensive blacksmith, against whom the neighbours all say no one had the least cause of complaint, and the prisoner being the only individual known to be out of temper with him, or to have the least motive to harm him. He was a sort of general favorite, and regarded with something more than ordinary kindness even by the blacks, on account of the fairness and liberality with which he traded *with many of them for coal, which they were allowed by their masters to burn and sell.
    The place where the body was found, was caréfully examined : No full track could be found, but the tiptoe prints of the murderer were seen, where they led off from the body in a direction different from the prisoner’s house, but the nature of the ground did not admit of tracing them. About eighty yards off, a single track was seen at full length, still going in a direction different from the prisoner’s house: The same track was again seen in Morgan’s field, going nearly the same course, and in g-eneral, appeared to avoid the places where it might be traced, apparently keeping a hard path, and when for some cause he left the path, he returned to it again: The party searched on, but for half a mile or three quarters, they saw no trace of the track, but in about that distance, the track was plainly seen, measured, and found to be the same ; and taking now a course direct for the prisoner’s house : They followed through a field, and occasionally saw it, until within eighty yards of the house of the prisoner : The party went direct to the house; the front door was closed, and the window shutter also : They went round, and entering, arrested the prisoner who exhibited no marks of surprise at the visit, but after a short time, asked what is the matter now ? He was answered that he knew ; he replied, yes, he knew he should die and go to hell; and after some pause, added, and so will you. By this time it was observed, his clothes had been changed, the suit worn the day before having been extremely neat and clean, and his then appearance being the reverse ; he was asked for the clothes he had pulled off; he said he had on the same clothes ; whereupon, one of the party instantly went to the kitchen, when for the first time, the prisoner discovered great anxiety and embarrassment. The suit worn the day before, was found in the wash, part on the fire boiling, the residue in the washing tub : This was quite early in the morning, and no other clothing of the family were in the wash ; the shirt-bosom and pantaloons had stains upon them exhibiting the same appearance which blood stains exhibit after being attempted to be washed out in hot ley or soap-suds, but not so unlike every other stain, as to admit of the positive affirmance on oath, that it was blood. The prisoner on being asked, why these clothes which were clean the day before were in the wash, answered that he was about to go to Petersburg for '^evidence to prove his right to the iron he had been charged with stealing : He was asked for the shoes he had worn the preceding day; he answered that he had them on, but it was fully proved that this was not the fact, and the clothes in the wash were fully identified with those worn the day before : The shoes worn the day before were not found, nor did it appear that they were searched for. He was then taken to the dead body, and the tracks which before had been found, were measured with the shoes he then wore ; the length agreed, but the breadth did not exactly accord: Whether the shoe was wider than the track, or vice versa, the witnesses did not remember: He was asked which way he came home from Jeter’s ; he answered by Morgan’s store, where he saw seven or eight persons in the store, (the door of which fronts the road:) On being reminded of the propriety of having some of those persons to prove his passing that way, he said he did not go along the road in front of the store, but through the orchard behind the house; and to another person, he gave a third account of the way he went home. After he was put in jail, he was asked why he was there; he mentioned the charge against him, declared his innocence, and alleged it was all owing to negroes ; that had he killed colonel Greenhill’s Preston, he could have killed the right one : On its being then suggested interrogatively, that he had killed the wrong one, he answered that he had killed no one.
    The new trial was refused by the Judge who presided at the trial, because, although the evidence was altogether circumstantial, the jury were. satisfied that it proved the prisoner’s guilt, and the same conclusion irresistibly forced itself upon his own mind.
    He now applied for a Writ of Error, and the Case was argued by May, for him, and Robertson, Attorney General, for the Commonwealth.
    
      
       Criminal Law — Murder—Indictment—Form.—It is not necessary, in consequence of the statute defining the different degrees of murder and subjecting them to different punishments, to alter the form of indictments for murder in any respect, nor to charge specially such facts as would show the offence to he murder in the first degree. Thompson v. Com., 20 Gratt. 730, and foot-note, citing Com. v. Miller, 1 Va. Cas. 310; Wicks v. Corn., 2 Va. Cas. 387. See also, citing the principal case for this proposition, Livingston v. Com., 14 Gratt. 596, and foot-note; Kibler v. Com., 94 Va. 809, 26 S. E. Rep. 858; State v. Abbott, 8 W. Va. 747; Davis v. People of Territory of utah, 14 Sup. Ct. Rep. 330, 151 U. S. 262. See monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674. See also, citing the principal case, Howell v. Com., 26 Gratt. 1007.
    
   WHITE, J.,

delivered the opinion of the Court:

This Writ is prayed for, 1. Because, as it alleged, the judgment ought to have been arrested. 2. Because a new trial ought to have been granted.

In support of the first error assigned, it is alleged, and correctly, that if there be two offences of the same nature, but the one inferior to the other in atrocity, and, as respects the punishment affixed to it, as murder, and man-slaughter, *and a person be indicted for the inferior of-fence, the jury cannot, upon any possible evidence, find him guilty of the higher offence. And, further, that if a Statute creates an offence, or annexes a new penalty to an old offence, to bring a party accused within the penalty of such Statute, the words of the Statute must be pursued. But it remains to be enquired, whether the present Case comes within both, or either of those principles.

To bring it within them, the Counsel .for the applicant has endeavoured to shew that our Penitentiary Act has divided the old Common Eaw offence, called murder, into two parts, and created two distinct offences out of it, the one called murder in the first degree, and the other murder in the second degree; and that, therefore, an Indictment for murder, since the passage of that Act, ought, if it is supposed the accused is guilty of the first offence, expressly to charge him with murder in the first degree, and if it does not do so, it is in Eaw an Indictment for murder in the second degree, on which he cannot be convicted of murder in the first degree.

The principal support of this proposition, seems to be derived from the preamble to the enacting clause of the second section of the aforesaid Statute, That preamble says, “ Whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment. ”

Erom these words, several offences, it seems to have been inferred that there were included in the general term murder, several distinct crimes, which were to be prosecuted by several distinct Indictments, and if these words were contained in the enacting clause which changed the haw, there might and would be some force in the argument. But, has it been forgotten, that this preamble speaks of the haw as it then was, when no such distinction could possibly be set up, and not as the legislature might thereafter make it; that it only speaks of the existing state of the Law, to shew why the Legislature contemplated a change in it, and what was the nature of that change ? This preamble seems to indicate, not that the Legislature meant to make any change in the crime of murder, but that it ^thought that this crime, as it might be committed under an almost infinite variety of circumstances, ought to be punished in each case according to the degree of atrocity or exten nation under which each offence was committed : that he who upon a sudden and highly aggravated provocation, in the moment of heat, and without time for reflection, took away the life of his fellow-man, under such circumstances as would, however, constitute murder, ought not to be punished for that murder, with the same severity as ought to await him'; who, by poison, or torture, and with little or no provocation, coolly and deliberately murdered his wife or his friend.

Thus considered, this preamble seems to imply; not that the Legislature intended to change, much less that they intended to divide the Common Law crime of murder into two distinct offences, to be prosecuted and punished under two distinct Indictments, but that it intended to graduate the punishment of each murder by a scale to be established by itself, according to the circumstances under which it should be committed.

It is believed, that the enacting clause which follows this preamble, fully justifies this commentary. Let us examine it minutely. It enacts that, “all murder which shall be perpetrated by means of poison, or by lying in wait, &c. shall henceforth be deemed murder in the first degree ; and all other kinds of murder shall be deemed murder in the second degree.” It is admitted that if this enactment stopped here, and was taken unconnected with the preamble which preceded, it would furnish strong ground in support of the application, which ground has been ably occupied by the Counsel for the Applicant. It does not, however, stop here, but goes on ‘ to say, “ and the jury be- , fore whom such person, indicted for murder, i shall be tried, shall, if they find such person - guilty thereof,” that is murder, “ascertain in their verdict whether it be murder in the first or second degree:” Cui bono ? Unless 1 that the punishment for the murder commit- < ted, should be graduated by the circumstances of the case ? But, how can that be done, if the Indictment has already fixed the grade of the offence, and with it the nature of the punishment ? But the Law goes on to say, “ but if such person be convicted by confession, the Court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.” Now, if the Indictment *must charge the offence to be murder in the first degree or second degree, and if the accused confesses he is guilty of the crime charged upon him by .the Indictment, what further enquiry upon that subject can be had ? If the Indictment charge murder in the first degree, and the party confess he is guilty of-it, is the Court to examine evidence to convince it that he is not guilty in that degree, and turn it into an offence not charged upon him ? If he be charged with murder in the second degree, or with murder only, which, according to the principles assumed by the Applicant’s Counsel, amounts to the same thing, and he confess it, is the Court to examine testimony to enable it to turn the offence so charged and confessed, into a higher crime not at all charged upon, or confessed by him, and so hang him ? Or, is this examination, a mere farce, intended to answer, and which cannot answer any one useful purpose ?

It is the unanimous opinion of the Judges present, that the errors moved in arrest of judgment were rightly over-ruled, and so indeed it appears to have been before decided by this Court on a former occasion,

The Court is also unanimously of the opinion, that there is no error in the judgment over-ruling the motion for a new trial. The Writ of Error is therefore refused. 
      
       See tke Act, 1 Rev. Code of 1819, ch. 171, $ 8, p. 616.
     
      
       Miller’s Case, Virginia Cases, p. 310.
     