Hensley v. Commonwealth
Hensley v. Commonwealth
Opinion of the Court
delivered the opinion of the court.
At the October term, 1933, of the Circuit Court of Rockingham county, a grand jury returned an indictment in
On the night of October 16,1933, at Fairview schoolhouse in that county, under church auspices there was held an oyster supper and lawn party. Among the amusements provided was a cakewalk in which the accused and his sister, Miss Arbutus, were numbered among the competitors. They won the prize but the award was contested. The protest was upheld and it was agreed that they should “walk it over.” They walked once more and won again, and it was out of this incident the trouble came. There is.no doubt about the fact that someone struck Phillips over the head several times with a blunt instrument. He was wounded severely but not dangerously. With the assault established it is only necessary to find the assailant. A jury was of the opinion that Layton Hensley was the guilty party, and the trial judge was of the opinion that the evidence sustained its verdict.
For the defendant it was contended that the assault was made by Hurtle, the son of Hensley. Hurtle said that Phillips applied to his father a foul epithet, struck him, and with his friends was “ganging in” upon him when he came to the rescue, caught up a paling, and inflicted the wounds for which his father stands convicted.
Forty witnesses have undertaken to tell us what happened at the festival. Since this case must be tried again upon its merits we shall not undertake to comment upon their testimony.
Among errors assigned is the giving of Instruction 5 on behalf of the Commonwealth. This is that instruction: “The jury are instructed that even though Hurtle Hensley has testified it was he who inflicted the blow on the head of Phillips, and that his father, Layton Hensley, did not do so, yet, as to this witness, as with all other witnesses, the jury
The court had already, in Instruction 2, properly told the jury how it should consider and weigh testimony. That instruction reads: “The court instructs the jury that in determining weight to be given the testimony of different witnesses in this case, the jury are authorized to consider the relationship of the witness to the parties, if the same is proved; their interest, if any, in the result of this case; their temper or feeling, or bias, if any has been shown; their demeanor whilst testifying; their apparent intelligence; their means of information, and to give such credit to the testimony of such witnesses as under all the circumstances, such witnesses seem to be entitled.”
With this instruction given, it was error to single out Hurtle Hensley and to tell the jury that they were the sole judges of his credibility. They were the judges of the credibility of every witness. It was error to single out, emphasize, and give undue prominence to any particular bit of testimony. These matters, in this State, under settled rules, are within the province of the jury. Moreover, the instruction was exceedingly harmful in that the jury might well have gathered from it that the judge did not believe Hurtle had told the truth. Whatever the facts may have been, this was a fair deduction.
In Jarrell v. Commonwealth, 132 Va. 551, 110 S. E. 430, 436, the court was called upon to consider this instruction, tendered and refused: “The court instructs the jury that if they believe that Harry Jarrell and J. P. Thomas, or either of them, have knowingly testified untruthfully on any material matter in this case, they are at liberty to disregard the whole of their testimony.”
It commented upon the fact that in certain jurisdictions instructions of like nature are approved, but said: “Our own views upon the subject under consideration are as follows : The credibility of witnesses is so peculiarly and exclusively within the province of the jury that we think it would be improper for the court to give such an instruction
This statement of the law was approved in Limbaugh v. Commonwealth, 149 Va. 383, 140 S. E. 133.
In the late case of Evans v. Commonwealth, 161 Va. 992, 170 S. E. 756, 763, we approved the action of a trial court in rejecting this instruction: “The court instructs the jury, that in the case at bar the defendant, McKinley Evans, is a competent witness in his own behalf, and that you should weigh and consider his evidence in accordance with the same principles that should actuate you in weighing and considering the evidence of the other witnesses in the case, and the jury are instructed that you can not arbitrarily disregard or reject his testimony because he is charged -with an offense.”
We find no other error in the record.
For reasons stated the judgment of the trial court is set aside and this case is remanded for a new trial.
Reversed and remanded.
Reference
- Full Case Name
- Layton Hensley v. Commonwealth of Virginia
- Status
- Published