Definitionvicinage.

still the true con

struction of the word "vicinage," as used in the Constitution, is that it corresponds with the territorial jurisdiction of the court in which the venue of the crime is laid. In this case, the corporation court of the city of Roanoke, under the general statute referred to, is vested with jurisdiction to try indictments for crimes committed within the city and within 1 mile of its corporate limits, and this territory constitutes the district over which the court has jurisdiction. Hence a jury summoned from any

Courtsjurisdictionvicinage.

part of that dis

trict is a jury of the "vicinage,' or venue, of the crime. Had the accused been indicted in the county of Roanoke, the jury would have been summoned from some district of the county remote from the place of the crime, and the fact that this jury was summoned from the city of Roanoke, which constitutes a part of the district over which the corporation court has jurisdiction, is not objectionable, and does not violate the constitutional provision that the prisoner is entitled to be tried by a jury of his vicinage. The statute has been in force for many

years, many persons have doubtless been convicted thereunder, and its validity has been generally accepted. No constitutional right has been denied the accused, and no sufficient reason has been suggested which would justify us in holding the statute unconstitutional.

In Ruffin's Case, 21 Gratt. 790, this court upheld the constitutionality of a statute which had been attacked on this ground where a convict who had committed a crime in the county of Bath was tried in the circuit court of the city of Richmond, basing its ruling upon the fact that he was a convict in the penitentiary, under the control and subject to the laws which governed that institution and its inmates.

3. It is urged for the accused that the court erred in excluding evidence of certain declarations made to him and to others by the deceased, indicating her fear of one Agee, and his threats against her. This man Agee had also been criminally intimate with the deceased, and had been suspected of the crime (though he had, after an investigation, been released), and the statements which were excluded may be summarized thus: That while driving out with the accused on Thursday before the murder, which occurred on the following Saturday night, just before she passed a man named Strain, she pulled her hat down over her face as though to conceal her identity, and said she did so because she was afraid Strain would tell Agee that she was riding out with the accused, and that Agee would kill her; that on Saturday, the afternoon of the murder, when by appointment she was with the accused, she kept looking back after she left the railroad station because she was afraid that Agee was following her; that she feared violence from Agee; that she no longer went with Agee; that he told her he would kill her if he caught her with the accused; that she tried to get her mind off of Agee, but that he would come where she worked to see her. The

trial court properly admitted evidence of the actions of the deceased, but refused to admit evidence of her statements, most of which accompanied these actions.

It would be vain to attempt to reconcile all of the conflicting cases as to when such statements can be admitted. Much must be left to the discretion of the trial judge, but where the proper determination of a fact depends upon circumstantial

Evidence

circumstantial

exclusion of facts.

evidence, the safe practical rule to follow is that in no case is evidence to be excluded of facts or circumstances connected with the principal transaction, from which an inference can be reasonably drawn as to the truth of a disputed fact. 8 R. C. L. p. 180. The modern doctrine in this connection is extremely liberal in the admission of any circumstances which may throw light upon the matter being investigated, and while a single circumstance, standing alone, may appear to be entirely immaterial and irrelevant, it frequently happens that the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion. Where the inquiry is as to the state of one's mind at a particular time, his statements and declarations indicating his state of mind are generally admissible. Note in 95 Am. Dec. 68; Mutual L. Ins. Co. v. Hillmon, 145 U. S. 285, 36 L. ed. 706, 12 Sup. Ct. Rep. 909. Such declarations, when made simultaneously with action, have been admitted as exceptions to the hearsay rule, and have been characterized as "verbal acts." Mr. Wigmore (3 Wigmore, Ev. § 1772) credits Mr. Justice Clifford with having first used this expression, in Traveler's Ins. Co. v. Mosley, 8 Wall. 411, 19 L. ed. 442, where he says: "Declarations of a party to a transaction, though he was not under oath, if they were made at the time any act was done which is material as

-state of minddeclarations.

evidence in the issue before the court, and if they were made to explain the act, or to unfold its nature and quality, and were of a character to have that effect, are treated, in the law of evidence, as verbal acts, and, as such, are not hearsay, but may be introduced with the principal act which they accompany, and to which they relate as original evidence, because they are regarded as a part of the principal act, and their introduction in evidence is deemed necessary to define that act and unfold its true nature and quality."

While Mr. Wigmore, in discussing the admission of "verbal acts," criticizes the suggestion as to unfolding, elucidating, and explaining the nature of the act, he fully agrees with the view that the words accompanying such acts are clearly admissible. Such words, together with the act, constitute the completed action. To exclude them is to incur the danger of either losing or misinterpreting the significance of such action. Whether called part of the res gestæ or not is immaterial. Instead of withholding any available information by the application of rigid rules of exclusion, the "more excellent way" is to admit all testimony which will enlighten the triers of fact in their quest for the truth. The better view is not how little, but how much, logically competent evidence,' is admissible. 10 R. C. L. 976; note in 97 Am. St. Rep. 732.

In this case, the evidence tending to show that the accused had any motive for committing the crime is very slight indeed, if not negligible, whereas, there is much tending to create the suspicion that possibly Agee was the guilty agent, such as the fact that he had been supplanted in the woman's favor by the accused; that she was afraid of him; that he was following her on the evening of the murder and not long before its commission; that he had possession of a pistol, and that he was seeking to buy cartridges for it a short time before the crime was

committed; and it is well settled that, where there is a trend of facts and circumstances tending clearly to point out some other person as the guilty party, the prisoner may introduce any legal evidence which is available, tending to prove that another person committed the crime with which he is charged. 8 R. C. L. 185; Carlton v. People, 150 Ill. 181, 41 Am. St. Rep. 346, 37 N. E. 244, 9 Am. Crim. Rep. 62; Stout v. State, 174 Ind. 395, 92 N. E. 161, Ann. Cas. 1912D, 37; note in 37 L.R.A. (N.S.) 346.

We have two cases in Virginia in which the declarations of the deceased not made in the presence of the accused have been admitted as tending to show his guilt: Cluverius v. Com. 81 Va. 803; Tilley v. Com. 89 Va. 153, 15 S. E. 526. In the former case, the statement of the deceased was admitted that a letter which she had received was the inducement and cause of her going from her home to Richmond, where the crime was committed.

While a large discretion must and should remain vested in the trial court as to the admission of this class of testimony, it is always safer, in cases depending upon circumstantial evidence alone, to admit rather than to reject, and this is the tendency of modern statutes and decisions relating to evidence. The testimony to which we have referred would have been clearly admissible on behalf of the commonwealth in the prosecution of Agee for the crime, and in our judgment it is equally admissible in favor of the accused, as tending to show that he was not guilty. This evidence tending to show motive on Agee's part should have been admitted on behalf of the accused, and its rejection was prejudicial error.

-declarations of fear of other persons.

4. The court, at the instance of the commonwealth, and over the objection of the prisoner, gave this instruction: No. 2. "The court further instructs the jury that when a mortal wound is given with

a deadly weapon in the previous possession of the slayer without any, or upon very slight, provocation, it is prima facie wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances, for the rule of law is that a person shall be taken to intend that which he does, or which is the necessary consequence of his act. Therefore the court tells the jury that, if you believe from the evidence beyond a reasonable doubt that the accused shot and killed the deceased as charged in the indictment with a deadly weapon, which was in the previous possession of the accused without any, or upon very slight, provocation, prima facie the accused is guilty of wilful, deliberate, and premeditated killing, unless it has appeared from the evidence in the case that there were extenuating circumstances."

That such an instruction has been frequently given in murder cases in which it was appropriate is true. It is also true, however, that instructions should relate to the evidence in the case on trial, Trialand that it is harm- instructionrelevancy. ful error to give an instruction based upon assumptions of fact which do not appear in the evidence. In this case, while true that the deceased was shot with a pistol, there is no testimony which indicates that the prisoner ever had a pistol or any other deadly weapon. In cases where the Appealevidence shows or instructions tends to show that not based on the accused was in possession of such a weapon, and used it, such an instruction is manifestly proper, and the inferences which the jury may draw from the fact of such possession and use are correctly stated in the instruc tion complained of. As there is no evidence in the record upon which the instruction could properly be based, the giving of it constitutes harmful error.

evidence-error.

The court refused to give two instructions offered for the prisoner.

One (C) reads thus: "The court instructs the jury that the law pre'sumes that A. H. Karnes is innocent of the crime with which he now stands charged, and before there can be a conviction in this case, the law requires the commonwealth to prove by clear, distinct, and reliable evidence, beyond a reasonable doubt, that A. H. Karnes fired the shot that killed Mrs. J. B. Kelly, and the fact alone that he was present at the time she was killed is not sufficient to justify the jury in convicting him."

The other (D) reads thus: "The court instructs the jury that, notwithstanding the fact that A. H. Karnes was present at the time Mrs. J. B. Kelly was shot and killed, he is not to be prejudiced by the inability of the commonwealth to point out any other criminal agent or person who committed the crime, nor is A. H. Karnes called upon to vindicate his own innocence by naming, or identifying, the guilty man, but he rests secure in the presumption of innocence until proof is adduced, which establishes the fact beyond all reasonable doubt that he actually shot and killed the deceased, Mrs. J. B. Kelly, and if the commonwealth has failed to prove by clear, distinct, and reliable evidence beyond all reasonable doubt that he shot and killed the deceased, the law requires the jury to find him not guilty."

The other instructions which had been given, both for the commonwealth and for the prisoner, with one exception, contained only the usual general statements of law governing trials in homicide cases, and were correct. The accused, however, was entitled to have the minds of the jury directed to the specific evidence in the case. They had nowhere been told that the mere presence of the accused at the time the

Va. 826, 30 S. E. 454; Goldman v. Com. 100 Va. 878, 42 S. E. 923.

In McBride v. Com. 95 Va. 826, 30 S. E. 454, it was held that it was error to instruct a jury that failure of the prisoner to disclose any other criminal agent was a circumstance to be considered by them in determin- inability to point out ing his guilt, and criminalthat he is not to be prejudiced by his own or the commonwealth's inability to point out any other criminal agent.

effect.

In view of the evidence in this case, the accused was entitled to have the jury told distinctly and clearly that his mere presence at the time the crime was committed was not alone sufficient to justify a conviction. The refusal of these instructions was also harmful error.

Several other instructions offered for the prisoner were refused, and exceptions thereto taken; but, as they were either er- Trial-refusal

roneous or mere of requested

repetitions in sub- instructions. stance of instructions which had already been given in the case, the court properly refused them.

5. The prisoner moved the court to set aside the verdict upon the ground that the evidence was insufficient to justify the verdict of guilty. No good purpose would be served by summarizing all of this evidence. We will content ourselves with stating that, according to the prisoner's testimony, his relations with the deceased were friendly; that he had neither motive nor provocation to commit the crime; that the shot which killed the deceased was fired while the accused and she were together, out-of-doors, on a dark night, supposing themselves to be alone; that she was instantly killed by a bullet fired by some unknown person, whether directed towards him or towards the deceased, he could not say; and that he immediately ran away from the place. There is much to support and little to controvert this evidence. In our opinion, the circumstances relied upon to show the guilt

General rule.

The reported case (KARNES V. COMMONWEALTH) appears to be the only decision at variance with the general rule, which is that testimony as to acts or declarations of the deceased which tend to show fear of a person other than the defendant is not admissible on a trial for homicide. Goodlett v. State (1902) 136 Ala. 39, 33 So. 892; Tatum v. State (1901) 131 Ala. 32, 31 So. 369; Woolfolk v. State (1890) 85 Ga. 69, 11 S. E. 814; State v. McCoy (1892) 111 Mo. 517, 20 S. W. 240; State v. Patrick (1856) 48 N. C. (3 Jones, L.) 443; State v. Duncan (1846) 28 N. C. (6 Ired. L.) 236; Brown v. State (1913) 74 Tex. Crim. Rep. 356, 169 S. W. 437; Wallace v. State (1904) 46 Tex. Crim. Rep. 341, 81 S. W. 966; Murphy v. State (1896) 36 Tex. Crim. Rep. 24, 35 S. W. 174.

en

In Wallace v. State (1904) 46 Tex. Crim. Rep. 341, 81 S. W. 966, it was said: "We do not believe it was competent for the appellant to prove that deceased had certain emies, and that he was apprehensive of harm from them. The evidence was too remote; the rule being that before testimony of this character is admissible, the evidence must tend, at least in some degree, to show that such other person did the killing. The mere fact that other parties may have entertained feelings of hostility or ill will, or had made threats against deceased, will not be sufficient."

Application of rule.

In Murphy v. State (1896) 36 Tex. Crim. Rep. 24, 35 S. W. 174, a trial for murder, it was proposed to prove by

certain witnesses that some time prior to the homicide, the deceased, who was superintendent of a poor farm, expressed apprehension that some of the convicts or escaped convicts of the poor farm would kill him, saying that he had had to whip a great many negroes on the poor farm, and that they had threatened to kill him. It was held that the testimony was not admissible. The court said: "It was the statement of no fact, but merely an opinion of apprehension on the part of the deceased, and was hearsay. As to the evidence of threats to kill, made by other parties, the general rule has heretofore been stated by this court in effect as follows: In a case of cir cumstantial evidence, it is relevant to prove motive on the part of some other person than the accused to have committed the killing. See Kunde v. State (1886) 22 Tex. App. 65, 3 S. W. 325. We would further observe, in regard to this character of testimony, that, in a case wholly depending on circumstantial evidence, it is the duty of the jury to explore every reasonable hypothesis consistent with the innocence of the defendant before they would be authorized to convict him. In other words, if the evidence reasonably shows that some other person than the accused committed the offense charged, it is their duty to acquit; or if the circumstances which tend to show that some other person may have committed the crime are sufficient to raise a reasonable doubt of the defendant's guilt, an acquittal should follow. This is in accord with the rule on circumstantial evidence. It must not only be sufficient to con