University of Virginia Library

CHAPTER X.

INSTRUCTIONS.

The evidence all in, there was nothing between the jury and its entire
control of the case, except the instructions of the court and the
argument of counsel. The instructions are given here, and the argument
in succeeding chapters.

After a few hours' conference between counsel for prisoner and those
representing Commonwealth and Judge Morris, the following instructions
were given for the guidance of the jury:

"The court instructs the jury that in all criminal prosecutions a man
has a right to be confronted with his accuser and the witnesses against
him, and no statement made by any witness or other person, elsewhere
than in the court and in the presence of the accused, constitutes evidence
against him. The sole purpose for which evidence, if any such
statement is admitted, or for which it can be used, is to enable the
jury to judge whether or not the witness is entitled to credit.

The court instructs the jury that the law presumes every person
charged with crime to be innocent until his guilt is established by the
Commonwealth beyond a reasonable doubt, and this presumption of
innocence goes with the accused through the entire case and applies
at every stage thereof; and if, after having heard all of the evidence
in this case, the jury have a reasonable doubt of the guilt of the accused
upon the whole case, or as to any fact, essential to prove the
charge made against him in the indictment, it is their duty to give the
prisoner the benefit of the doubt and find him not guilty.

The court further instructs the jury that upon the trial of this case,
if a reasonable doubt of any fact necessary to establish the guilt of
accused as charged in the indictment be raised by the evidence or
lack of evidence, such doubt is decisive and the jury must acquit the
accused since a verdict of "not guilty" means no more than that the
guilt of the accused has not been established in the precise, specific
and narrow form prescribed by law.

The court instructs the jury that when upon a charge of murder, the
evidence is wholly circumstantial, as is the case here, the absence of
all evidence of an inducing cause or motive to commit the offence
charged affords of itself a strong presumption of innocence.

The court instructs the jury that murder by poison, lying in wait,

imprisonment, starving, or any wilful, deliberate, and premeditated
killing, or in the commission of, or attempt to commit arson, rape, robbery,
or burglary is murder of the first degree. All other murder is
murder of the second degree.

The court instructs the jury that in the application of circumstantial
evidence to the determination of the case, the utmost caution and vigilance
should be used. Such evidence is always insufficient where assuming
all to be true, which the evidence tends to prove, some other
reasonable hypothesis may still be true, for it is the actual exclusion

ALBEMARLE COUNTY COURT-ROOM.

of every other reasonable hypothesis which invests mere circumstances
with the force of truth. Where the evidence leaves it indifferent,
which is several hypothesis is true, or establishes only same finite
probability of one hypothesis, such cannot amount to proof, however
great the probability may be.

And the court further instructs the jury that all the evidence in this
case which tends to establish that the accused is guilty of the crime
which he is charged, is circumstantial and not positive evidence.
Therefore, although the jury may believe from the evidence in this

case that there is a strong probability that the accused is guilty of
the offence charged in the indictment, still, if upon the whole evidence,
there is any other reasonable hypothesis consistent with the innocence
they cannot find the accused guilty, and this is true, although
it may appear from the evidence that the probabilities of his guilt are
greater than the probabilities of his innocence.

The court instructs the jury, even if they are satisfied from the
evidence beyond a reasonable doubt, that the accused took the life of
the deceased, then the jury are instructed that the law presumes prima
facie that such killing was murder of the second degree, and the burden
rests upon the Commonwealth to elevate the offense to murder in
the first degree, by proving beyond a reasonable doubt all the elements
of that crime as defined by another instruction.

The court instructs the jury that even though they may believe
from the evidence that the witnesses, William McCue and John Perry,
may have made statements in conflict with or in contradiction of the
evidence given by them on the witness stand, in considering the guilt
or innocence of the accused, of the crime with which he is charged, the
jury are not at liberty to take into consideration any such contradictory
or conflicting statements of the said witnesses, or either of
them, but must consider the case of the accused as if such statements
had never been made, except that they may consider such statements
for the sole purpose of determining whether said witnesses, or either
of them, are worthy of belief.

"Offered by the Commonwealth:" The court instructs the jury that
a reasonable doubt is such a doubt as may be honestly and reasonably
entertained as to any substantial and material fact essential to prove
the offense charged. Reasonable doubt must be based upon the evidence,
or that suggested by the evidence, or grows out of the evidence
itself. It must not be arbitrary doubt, without evidence to sustain it.
It must be serious and substantial in order to warrant an acquittal. It
must be a doubt of material fact or facts necessary for the jury to believe
to find a verdict of conviction, and not of immaterial and nonessential
circumstances.

The court further instructs the jury that circumstantial evidence is
legal and competent in criminal cases, and if it is of such a character
as to exclude every reasonable hypothesis other than that the defendant
is guilty, is entitled to the same weight as direct testimony.

The court further instructs the jury that a mortal wound, given with
a deadly weapon, in the previous possession of the slayer, without
any provocation, or even with slight provocation, is prima facie wilful,
deliberate and premeditated killing, and throws upon the prisoner the
necessity of showing extenuating circumstances.

The court further instructs the jury that to constitute a wilful,
deliberate and premeditated killing, it is not necessary the intention to
kill should exist any particular length of time prior to the actual killing.
It is only necessary that such intention should come into existence
for the first time at the time of killing, or any time previously.

The court further instructs the jury that the rule of law is that a
man shall be taken to intend that which he does, or which is the
necessary consequence of his act.

The court further instructs the jury, as a matter of law, that in considering
the case the jury are not to go beyond the evidence to hunt
up doubts, nor must they entertain such doubts as are merely chimerical
or conjectural. A doubt, to justify an acquittal, must be reasonable
doubt, and it must arise from a candid and impartial investigation of
all the evidence in the case; and unless it is such that the same kind
of doubt in the reposed in the graver transaction of life, it would cause
a reasonable and prudent man to hesitate and pause, it is insufficient
to authorize a verdict of not guilty. If, after considering all the evidence,
you can say that you have an abiding conviction of the truth
of the charge, you are satisfied beyond a reasonable doubt on the other
hand, the jury must not go beyond the evidence to hunt up inferences
of guilt.

The court instructs the jury that whoever kills a human being with
malice aforethought is guilty of murder; that a murder which is perpetrated
by a person lying in wait, or any other kind of wilful, deliberate
and premeditated killing, is murder in the first degree.

The court instructs the jury that on a charge of murder, malice is
presumed from the fact of killing. When the killing is proved and is
unaccompanied with circumstances of palliation, the burden of disproving
malice is thrown upon the accused.

The court instructs the jury that murder is distinguished by the law
of Virginia as murder in the first degree and murder in the second
degree.

The court further instructs the jury that every homicide in Virginia
is presumed in law to be murder in the second degree. In order to
elevate the offense to murder in the first degree, the burden of proof
is upon the Commonwealth, and to reduce the offense to manslaughter,
the burden of proof is upon the prisoner.

The court further instructs the jury that whenever the killing is
wilful, deliberate and premeditated, the law infers malice from this
fact.

The court instructs the jury that the credulity of witnesses is a
question exclusively for the jury, and the law is that where a number
of witnesses testify directly opposite to each other, the jury is not
bound to regard the weight of the evidence as equally balanced; the

jury have the right to determine from the appearance of the witnesses
on the stand, their manner of testifying and their apparent candor and
fairness, their apparent intelligence, or lack of intelligence, and from
all the other surrounding circumstances appearing on the trial which
witnesses are more worthy of credit and to give credit accordingly.

The court further instructs the jury that in determining the weight
to be given the testimony of different witnesses in any case, the jury
are authorized to consider the relationship of the witnesses to the
parties, if the same is proved; their interests of any in the result of
this case; their temper, feeling or bias, if any has been shown; their
demeanor whilst testifying; their apparent intelligence and their
means of information, and to give such credit to the testimony of such
witnesses as under all the circumstances such witness seem to be
entitled.

The jury are finally instructed that the instructions given are all
the instructions of the court, and must be considered as a whole.

The court instructs the jury that all the statements made by John
Perry and J. William McCue to other persons, not in the presence of
the accused, can only be considered by the jury for the purpose
of discrediting the said William McCue and the said John Perry,
and the jury are instructed that such statement should not be
considered by them as evidence against the accused, but only for the
purpose above stated, and said statements should be considering the
question of guilt or innocence of the accused, and be wholly disregarded
by the jury and treated as if they had never been made.

The court instructs the jury that where evidence is adduced of any
statement of the accused, such statement must be considered as a
whole. A part of it cannot be considered and a part rejected.

The jury must consider all or none; and if the prosecutor uses the
declaration of the prisoner, he must take the whole together, and cannot
select one part and leave another.

The court instructs the jury that if, upon the whole evidence in the
case, there is any reasonable hypothesis consistent with the innocence
of the accused, they must find him not guilty. The court instructs the
jury that the failure of the evidence to disclose any other criminal
agent than the accused, is not a circumstance, which may be considered
by the jury in determining whether or not he was guilty of the
crime wherewith he is charged. The prisoner is presumed to be innocent
until his guilt is established, and he is not to be prejudiced by
the inability of the Commonwealth to point any other criminal agent,
nor is he called upon to vindicate his own innocence by naming the
guilty person.

The court instructs the jury that, upon the trial of a criminal case
by a jury, the law contemplates the concurrence of twelve minds in

the conclusion of guilt before a conviction can be had. Each individual
juror must be satisfied beyond a reasonable doubt of the defendant's
guilt before he can, under his oath, consent to a verdict of guilty. Each
juror should feel the responsibility resting upon him as a member of
the jury, and should realize that his own mind must be convinced beyond
a reasonable doubt of the defendant's guilt before he can consent
to a verdict of guilty. Therefore, if any individual member of the jury,
after having duly considered all of the evidence in this case, and after
consultation with his fellow-jurors, should entertain such reasonable
doubt of the defendant's guilt, as set forth in certain instructions in
this case, it is his duty not to surrender his own convictions, simply
because the balance of the jury entertain different convictions. The
court instructs the jury that upon the trial of a criminal case by a jury,
the law contemplates a concurrence of twelve minds in the conclusion
of guilt before a conviction can be had. Not only is this true with
respect to the guilt of the accused, but it is likewise true with respect
to the degree of the crime. Therefore, although the jury may believe
from the evidence that the accused is guilty of the killing of the deceased,
still if any individual member of the jury, after having duly
considered all of the evidence in this case, and after a consultation
with his fellow-jurors should entertain a reasonable doubt as to the
degree of guilt of the accused, it is his duty not to surrender his own
convictions as to such degree of guilt simply because the balance of
the jury entertain convictions with respect to such degree.

CAPT. MICAJAH WOODS,
Associated with Commonwealth's Attorney in Prosecution.