Opinion. Mills, 7 Pet. 142, 8 L. Ed. 636; U. S. v. Cook, 17 Wall. 174, 21 L. Ed. 538; Bish. New Cr. Proc., secs. 77, 86, 88, 98a, 100a (4), 325; Rose's Case, 116 Va. 1023, 82 S. E. 699; 14 R. C. L., pp. 174, 180; Heard's Cr. Pl., pp. 70-1; Blair's Case, 122 Va. 798, 94 S. E. 185; 22 Cyc. 319-320; Beal's Cr. Pl., sec. 151, p. 156; Old's Case, 18 Gratt. (59 Va.) 930; Matthews' Case, 18 Gratt. (59 Va.) 989; People v. Jackson, 191 N. Y. 293, 84 N. E. 65, 15 L. R. A. (N. S.) 1173, 14 Ann. Cas. 243. The principle established by these authorities is that an indictment is fatally defective which does not allege the time at which an offense was committed, when time is an essential element, and, hence, of the essence of the offense; and some of these authorities hold that where there are two statutes, either of which may apply to the offense charged, and the one of subsequent date changes the nature of the offense, or the punishment of the same, the indictment must, by proper averment, allege the time at which the offense was committed, so as to bring it within the subsequent statute, and so that the court may see the exact character of the offense and the nature and the measure of the punishment to be imposed. See Cool's Case, supra (94 Va. 799, 26 S. E. 411), especially relied on for the accused, and the case therein referred to of State v. Wise, 66 B. C. 120. We need not stop here to inquire whether a subsequent statute falls within said principle and holding, where, although it changes the punishment, it does not require a certain penalty fixed by the statute to be imposed without discretion by the judgment of the court, but leaves the punishment to be fixed by the jury within certain limits mentioned, so that the rights of the accused may be protected by the instructions given by the court, or the charge delivered by the clerk under our practice, as to the statute applicable to the case. A Opinion. more far reaching distinction now to be made concerning the present procedure in this jurisdiction renders that subject immaterial. The decisions in Virginia, applying the principle referred to and holding that the defect in the indictment mentioned is fatal, even if objected to only by motion in arrest of judgment, were prior to the recent change in our statute law made by section 4877 of the Code of 1919; and essentially and fundamentally, the reason for the holding that such defect could be taken advantage of at any stage of the trial, and by motion in arrest of judgment, was this: The law, as it then stood, provided no means by which the indictment could be amended after its return by the grand jury, so as to satisfy the constitutional provision giving the accused in all criminal prosecutions "the right to demand the cause and nature of his accusation." (Const., sec. 8.) The defect was, therefore, fatal to the validity of the indictment on demurrer, because, as the law then stood, the indictment could not be amended. For the same reason, as the law then stood, the defect was fatal to the validity of the indictment on motion in arrest of judgment. As said in 16 C. J. 66* 1258: *the court will determine the validity of objections on a motion in arrest (of judgment) by ascertaining whether they would have prevailed on demurrer, and whatever would be fatal under the latter would be fatal under a motion in arrest; Conversely, it must be true that when the law has been so changed that such a defect as that under consideration may be cured by amendment of the indictment by the court, so that the defect is not fatal to the indictment or demurrer thereto, motion in arrest of judgment will not lie for such defect. * * It is, of course, still true that where time is of the essence of the offense, the time must be alleged in the in * Opinion. dictment, if the accused demands it before he pleads, but, under the aforesaid recent statute, this may be done by amendment of the indictment by the court. Section 4877 of the Code of 1919, in force when the instant case was tried, provides as follows: "At any time before the defendant pleads, a defective indictment for treason or felony may be amended by the court before which the trial is had that does not change the character of the offense charged. It appears from the Revisors' note to this section that it was intended to and, by fair construction, we think it does authorize, before the general issue is pleaded, any amendment of the indictment which does not change the nature of the offense charged. Thus the accused is given timely and ample opportunity to avail himself of his constitutional right aforesaid to be informed of the nature and cause of the accusation against him. That satisfies such constitutional requirement. If he does not exercise this right. when he should, in conformity with the reasonable and orderly procedure provided by the statute, namely, "before he pleads"-meaning before he pleads putting himself upon his trial on the merits-he must be taken to have waived such right and, under the procedure put in force by the statute under consideration, it is too late for him afterwards to claim such right by motion in arrest of judgment. See Flanary's Case, 133 Va. 665, 112 S. E. 604. [8] 3. On the merits of the case we will say this: The evidence before the jury showed that on the night of November 28, 1920, there was a social gathering at the home of Bob Biers; that among those present were the accused, the deceased, John Henry Deel, Ted Honaker and others; that about nine o'clock an unprovoked assault was made on the accused, who was unarmed at the time, by Ted Honaker, in which, however, Opinion. according to the testimony for the Commonwealth, no weapon was used by either; that this resulted in a fight between these two persons, in which they struggled, first on the back porch and then on the ground of the back yard, until they reached the back fence, at which time Ted Honaker was on top of the accused, but neither seemed to be doing the other much injury at that time. At one time during this fight a brother of Ted Honaker started to get into it, but was pulled away by a bystander. Soon after the contestants reached the back fence, the deceased and three or four or five others parted them, taking Ted Honaker behind the house; that thereupon the accused jumped up and ran away, saying just as he started, "Damn you, I am going home now, but I will see you later," or words to that effect; that the accused went a distance of about 250 or 300 yards to his home and got the shot gun with which the homicide was committed-a single-barrel breech-loading gun---returned with the gun, not to the dwelling house of Bob Biers, in or about which Ted Honaker and his companions, the deceased and others, who came with them to the place, then were, but stationed himself by a bush in the county road not far from the Biers house, about fifty-one feet away from the path along which Ted Honaker and companions came to the Biers house, and along which they in all probability would go when they started home; that as a matter of fact Ted Honaker and companions were on the point of leaving for home soon after the accused stationed himself on the wayside as just stated; that the night was very dark; that as Ted Honaker and companions started for home and had gone only about fifty feet from the house, with only two lights carried by them, one a flashlight, carried by the deceased, and the other a carbide light, carried by another of the par Opinion. ties, neither giving sufficient light to enable the accused to identify one individual from another-the deceased who carried a pistol and had been drinking considerably (with the flashlight in his left hand, which was on his side next to the accused, and with his pistol in his right hand, on his side away from the accused, as he walked along the path-the other parties with him all at the same time walking along the same way-fired several shots from his pistol into the ground; that the direction of these shots was not towards the accused, which was apparent to him from the flash of the pistol; that the position of the accused was unknown to the deceased and those with him going along their way (and the jury were well warranted in inferring from all the circumstances that the accused well knew this at the time); that thereupon the accused fired the shot from the gun which killed the deceased; and that the only excuse which the accused gave for the deed was that, when shortly afterwards he came to the home of Biers, on being asked by one of the women present, "What made you do it?" he replied: "I would rather have been killed myself, and would not have done it, if it had not been the way the boys treated me." The only question in the case, on the merits, which we think admits of serious debate, is whether the evidence showed that the accused was so beside himself with sudden passion, aroused by the provocation of the unprovoked assault upon him by Ted Honaker, that the jury were not warranted in finding that the shooting was done of malice aforethought, which was essential to the crime of which they convicted the accused. On this question we need say only this: The deceased did not assault the accused or take any part in that assault; on the contrary he helped to put an end to that assault by acting the part of a peacemaker. And even |