Syllabus. Richmond. E. S. BARNARD V. COMMONWEALTH. November 16, 1922. 1. EXCEPTIONS, BILL OF Record-Identification of Evidence and Instructions.-The better practice is for the trial judge so to identify the evidence and the instructions to which the bills relate as to make it impossible to question such identification. 2. EXCEPTIONS, BILL OF-Record-Identification of Evidence and Instructions-Case at Bar.-In the instant case the evidence was stated by the trial judge to be "here filed and identified by the stamp thereon, 'Archie P. Johnson, shorthand reporter, Christiansburg, Virginia,' which the court here certifies as all of the evidence that was taken in the case, and certifies the said stenographic report as a part of the record for the trial of this case." Held: That this sufficiently identified the evidence and made it a part of the record. 3. EXCEPTIONS, BILL OF -Record-Identification of Evidence and Instructions-Case at Bar.-In the instant case the instructions given and refused were identified, some by numbers and some by letters. While it did not affirmatively appear that these identifying numbers and letters were made thereon by the judge, it is fair to assume that they were made either by him or by his direction. Held: That the identification was sufficient, but such method of identifying the instructions is worthy of criticism, and the practice should be discouraged. 4. EXCEPTIONS, BILL OF Record—Identification of Instructions.—Trial judges should by some unmistakable mark of their own so clearly identify instructions which are intended to be embodied in the record as to conclude the parties, and to give the clerk an unerring guide when making up the transcript. There should be neither any question nor any ground for raising a question as to what constitutes the record when the case reaches the Supreme Court of Appeals. 5. HOMICIDE-Res Gestae-Statements of Deceased held not to Form Part of the Res Gestae, and their Admission to Constitute Reversible Error.-In a prosecution for homicide the sister of deceased was allowed to testify as to statements of deceased after the shooting. She testified that deceased said, "Mamma, she was right in bed with him" (meaning that the wife of deceased was in bed with the accused) and Syllabus. "Mamma, who would have thought any one would have shot me," and her mother testified to the same effect. The witnesses estimated that these statements of accused were made within half a minute after the last shot, but from evidence as to the mother's movements between the time of the last shot and the statements in question, it appeared that these estimates were not very reliable. Held: That, whether the statements were made half a minute, or more or less, after the last shot, it is apparent that they were the mere recital of a past occurrence, and could not be considered as part of the res gestae, and under the circumstances, the admission of the testimony was highly prejudicial to the accused, and entitled him to a reversal. 6. HOMICIDE-Evidence-Declarations of Deceased. In a prosecution for homicide, statements of deceased to the effect that his wife was right in bed with accused, and "who would have thought any one would have shot me," while they might have been admissible if the deceased had shot the accused, as showing the state of his own mind and the facts as they appeared to him, in order to determine the degree of his responsibility, are inadmissible against accused, as the state of mind of deceased and the matter as it appeared to him has little, if any, relation to the rights of the accused, who could not be either convicted or prejudiced because of the state of mind of the deceased. As to the accused, the statements were hearsay. 7. HOMICIDE-Evidence-Cross-Examination-Attempts to Show Improper Intimacy between Accused and the Wife of Deceased.-On a prosecution for homicide, the only evidence in the case tending to show any improper relations between the accused and the wife of deceased was that the wife of deceased was at or inside the door of the bedchamber occupied by the accused. The wife testified that she went to the room of accused to get something she had placed in the room during the day. The attorneys for the prosecution undertook, by insinuating questions to the accused and to the wife of deceased, to show undue and improper intimacy, as by the writing and receiving of a note and being confronted therewith by a sister of the deceased. All of this was categorically denied by the witnesses, and no effort was thereafter made to establish the facts insinuated. Held: That while the liberties of a cross-examiner are very great, they do not extend far enough to justify such a practice. 8. HOMICIDE-Instruction Denying Self-Defense-Conflicting Instructions— Reversible Error.-In a prosecution for homicide, the court instructed the jury that if the accused "allowed the wife of the deceased to get in his bed or allowed her to enter into acts leading in the mind of a reasonable man to a commission of the wrongful act of illegal intercourse with the wife of the deceased, and had in contemplation that the deceased, the husband, would or might interfere or would or might make an assault upon the accused because of great passion Opinion. aroused by such act on the part of the accused, and the accused armed himself with a deadly weapon with intent to take the life of the deceased or do him some serious bodily harm should it become necessary to save his own life in the course of such interference or of such attack; that accused under such circumstances did take the life of the deceased in pursuance of such intent-then such killing is willful, deliberate, and premeditated killing, and is murder in the first degree." There was no evidence that accused allowed the wife of deceased to get in his bed, or that accused armed himself with a deadly weapon with the intent to take the life of deceased. Held: That the instruction, based upon these erroneous views of the evidence, absolutely denied the accused the right of self-defense, and was, moreover, in conflict with another instruction, which told the jury, under substantially similar conditions, that accused had the right to defend himself. 9. HOMICIDE-Self-Defense-Right of Paramour to Defend Himself.—In the instant case the fault, if any, of the wife, however grave it may have been, was past. She had been taken to her own room by her husband, and the accused was resting quietly in his own chamber. If, under these circumstances, the husband undertook to take the law in his own hands and attack accused, the accused clearly had the right to defend himself. Error to a judgment of the Circuit Court of Floyd county. The opinion states the case. Reversed. J. E. Proffit, Lawson Worrell, and Hoge & Darnall, for the plaintiff in error. John R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon M. Bazile, Second Assistant Attorney-General, for the Commonwealth. PRENTIS, J., delivered the opinion of the court. E. S. Barnard was indicted for the murder of Dr. Herman Poff, and upon his trial was convicted of murder in the second degree. Opinion. [1] It is insisted for the Commonwealth that the judgment must be affirmed because there are no proper bills of exception. These bills are subject to criticism, for unquestionably the better practice is for the trial judge so to identify the evidence and the instructions to which the bills relate as to make it impossible to question such identification. [2] In this case the evidence is stated by the trial judge to be "here filed and identified by the stamp thereon, 'Archie P. Johnson, shorthand reporter, Christiansburg, Virginia,' which the court here certifies as all of the evidence that was taken in the case, and certifies the said stenographic report as a part of the record for the trial of this case." This identification is certainly as complete as that which was held sufficient in the case of Norfolk & Western Ry. Co. v. Rhodes, 109 Va. 176, 63 S. E. 445, in which it is held that "A bill of exception which after certifying that the plaintiff and defendant each introduced evidence says, 'all of which evidence both for the plaintiff and defendant is found in a typewritten booklet marked "A" and is adopted by the court as the evidence introduced by the plaintiff and defendant,' and that it contains all the evidence offered by them, sufficiently identifies the evidence and makes it a part of the record of the case." [3, 4] The instructions given and refused are identified, some by numbers, and some by letters. While it does not affirmatively appear that these identifying numbers and letters were made thereon by the judge, we think it fair for us to assume that they were made either by him or by his direction. While such method of identifying instructions is worthy of criticism, because it might lead to serious controversies as to the true record in a particular case, we are of the opinion. that here the identification is sufficient. Such a prac Opinion. tice, however, must be discouraged, and trial judges should, by some unmistakable mark of their own, so clearly identify instructions which are intended to be embodied in the record as to conclude the parties, and to give the clerk an unerring guide when making up the transcript. There should be neither any question nor any ground for raising a question as to what constitutes the record when the case reaches this court. Ratcliffe v. McDonald's Adm'r, 123 Va. 788, 97 S. E. 307. The petitioner assigns numerous errors. We shall neither discuss nor refer to several of them. This because where not waived by the petitioner the errors, if existent, are not likely to be repeated on another trial and are not sufficient in our judgment to justify a reversal. There are, however, several errors assigned which are serious in character and require consideration. To comprehend their force it is necessary to make a general statement of the issues involved. We will not undertake to include therein every fact disclosed by the record, but only those which are deemed necessary for the consideration of the legal questions involved. The admissible evidence which tends to support the conviction may be thus stated: The deceased came to his father's home at Check, in Floyd county, where he was expected, on the night of August 6, 1921, to see his wife and three children, who were concluding a ten day visit there, intending to take them, with a servant, back to his own home by automobile the next morning. The accused, who had recently moved to that village, operated a store there but had not yet brought his wife and child, who were then at Salem, Va., at her father's home. He boarded with and had his room in the house of J. J. Poff, the father of the deceased. The automo |