Syllabus. the presumption that the homicide is murder in the second degree continues until overcome by evidence on behalf of the prisoner which raises a reasonable doubt as to the guilt of the prisoner of the particular offense presumed. 12. INSTRUCTIONS-Read as a Whole.-Instructions ought to be read as a whole. 13. CRIMINAL LAW-Evidence-Reasonable Doubt.-The prisoner never has to prove any fact either beyond a reasonable doubt, or by a preponderance of the evidence. All he has to prove in any case is such a state of facts as will raise a reasonable doubt in the minds of the jury as to the existence of the fact or facts sought to be established by the Commonwealth. 14. HOMICIDE-Instructions-Or Substituted for And.-The trial court instructed the jury that "If the killing of a human being be malicious, but not willful, deliberate or premeditated, then such killing is murder in the second degree." By apparently a mere clerical error the word or is substituted for and before the word "premeditated." Held: That the jury could not have been misled to the prejudice of the accused by this error. 15. HOMICIDE-Degrees of Homicide.-Every malicious homicide is murder. If in addition, the killing be willful, deliberate and premeditated it is murder in the first degree. So are the cases specifically enumerated in the statute. All other murder is murder of the second degree. Code, section 4393. 16. HOMICIDE Instructions - Reasonable Doubt Instructions Read Together. In a prosecution for homicide the court instructed the jury that "if they believe from the evidence" that the prisoner killed deceased on a sudden quarrel without malice prepense then such killing was manslaughter. It was objected that there should have been inserted after the word "evidence" the words "beyond a reasonable doubt." Held: That as the subject of reasonable doubt was fully covered by another instruction given by the court, there was no merit in the objection. 17. HOMICIDE-Instructions Profane or Abusive Language.-In a prosecution for homicide the court refused an instruction that the law gives no man the right to curse or swear in front of another man's place of business in a public road during business hours. Held: No error. The mere fact that the deceased did such cursing and swearing would not justify, excuse or palliate the offense of the accused in killing him. 18. CRIMINAL LAW-Instructions-Duty of Jury-Principles Understood by Everyone. In a prosecution for homicide the court refused to give an instruction upon the responsibility of the jurymen, and that each juror should realize that his own mind must be convinced beyond a reasonable doubt, and that if after consultation with his fellow Syllabus. jurors a juror entertained a reasonable doubt, it was his duty not to give up his own opinion simply because the jury were of a different opinion. Held: That the instruction might probably have been given with propriety, but it embodied principles so well understood and so fully covered by the oath of each juror that its refusal could not be deemed error. 19. JURY-Duty of Jurors.-No juror should ever yield a conscientious opinion deliberately formed after a full and fair investigation of the case, as to the guilt or innocence of the accused, but jurors should not be invited to disagree if they can. 20. JURY-Duty of Jurors.-The jury room is no place for pride of opinion or obstinacy. It is the duty of the jurors to discuss the evidence in a spirit of fairness and candor with each other, and, if it can be done without a sacrifice of conscientious convictions, to agree upon a verdict. 21. INSTRUCTIONS-Directing Verdict on Partial View of the Evidence.—It is error to give an instruction directing a verdict upon a partial view of the evidence. 22. HOMICIDE-Instructions-Directing Verdict on Partial View of the Evidence-Case at Bar.-In the instant case, a prosecution for homicide, the court refused to give instructions for the accused which omitted all reference to the origin of the controversy; to the fact that deceased disclaimed the application of offensive words used by him to the prisoner; to the fact that the prisoner compelled deceased to take his hands out of his pockets, and to an assault made upon deceased by the accused. Held: That the trial court committed no error in refusing to give the instructions. 23. INSTRUCTIONS-Request to Court to Modify Instruction-Instruction by Court on its own Motion.-On a trial for homicide, after the trial court had refused to give an instruction offered by counsel for accused, counsel requested the court to modify the instruction to conform to the court's view, and to give an instruction of its own motion on the subject of self-defense. This the trial court refused to do. Held: No error. 24. INSTRUCTIONS-When Instructions Should be Given-Amendment and Modification-Correction by Court.-If an instruction is right and there is evidence to support it, it should be given. If it be equivocal, it should be amended. If it be wrong in form or substance, it should be rejected, and there is no obligation on the court to correct it and then give it. A party cannot, by asking an erroneous instruction, devolve upon the court the duty of charging the jury on the law of the case. But if the point upon which the instruction asked is a vital one, the jury should not be left wholly in the dark as to what the law on the subject is. Syllabus. 25. HOMICIDE-Self-Defense-Difficulty Brought on by the Accused.—Homicide in self-defense may be either justifiable or excusable. If it is either, it entitles the prisoner to an acquittal. But if the difficulty is brought about by the accused and he finds that it is necessary to kill his assailant in order to save his own life, such killing is not in the eye of the law excusable. 26. HOMICIDE-Self-Defense-Necessity of Instruction on Self-Defense.— Where upon the whole evidence it was plain that accused brought on the trouble resulting in the homicide, and even accepting accused's own statement of what occurred at the time of the shooting, it was so plain that he brought about the affray resulting in the death of the deceased that reasonably fair-minded men could not entertain different opinions on the subject, accused is not entitled to an instruction on self-defense. 27. HOMICIDE-Murder or Manslaughter-Provocation-Sharp Words.-Sharp words do not constitute adequate provocation to reduce a killing by the use of a deadly weapon from murder to manslaughter. 28. HOMICIDE-Assault-Self-Defense-Fault of Assailant.-The general rule is that one cannot provoke an attack, bring on a combat, and then slay his assailant, and claim exemption from the consequences on the ground of self-defense. No one can avail himself of the plea of self-defense, in a case of homicide, or assault with intent to murder, when the defendant was himself the aggressor, and willfully brought on himself, without legal excuse, the necessity for the killing, or the assault made. 29. HOMICIDE-Self-Defense-Argument of Counsel-Where Court has Decided that there is no Case of Self-Defense.—When the trial court has decided that no question of self-defense was involved in the case, counsel for accused had no right to make an argument before the jury contrary to the instructions of the court. 30. CRIMINAL LAW-Questions of Law and Fact-Jury not Judges of the Law.— In Virginia the jury are not judges of the law in criminal cases any more than they are in civil cases. 31. ARGUMENTS OF COUNSEL-Dispute between Counsel as to Testimony of Witnesses-Reference to Jury.—Where in a criminal case there was a dispute between counsel as to whether or not a certain statement had been made by the accused, the court properly said that whether or not such a statement had been made was a matter for the jury. If it had been desired, the argument could have been suspended long enough to refer to the notes of the testimony and verify what the accused had stated, but no such request was made, and in view of the situation there was no error in the ruling of the court. 32. HOMICIDE-Argument of Counsel-Opinion of Counsel.—A statement by the attorney for the Commonwealth on a trial for homicide that the only question the jury had to determine was whether or not it was murder of the first or second degree was merely an expression of Opinion. opinion by him and allowable. It was not a statement of the testimony in the case but his deductions from what that testimony showed. 33. HOMICIDE-Argument of Counsel-Retreat.-In a prosecution for homicide where there was no dispute about the fact that accused did not retreat, accused could not have been prejudiced by a statement in the argument of the attorney for the Commonwealth that before a man can claim self-defense he has got to retreat. 34. INSTRUCTIONS—Scintilla Doctrine-Criminal Cases.-The scintilla doctrine is repudiated in Virginia in criminal as well as in civil cases. In a civil case an instruction will not be given where there is so little evidence to support it that the verdict in favor thereof would have to be set aside for lack of evidence to support it. As a verdict of not guilty cannot be set aside, it would seem that the reason for refusing to apply the doctrine was, at least, as strong in a criminal case as in a civil case. Error to a judgment of the Circuit Court of Botetourt county. The opinion states the case. Benjamin Haden, for the plaintiff in error. Affirmed. John R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon M. Bazile, Second Assistant Attorney-General, for the Commonwealth. BURKS, J., delivered the opinion of the court. Houston Sims was convicted of murder in the second degree, and sentenced to the penitentiary for a term of twenty years. The murder occurred in the public road immediately in front of a small store that was conducted by the accused. The road is a narrow country road and nearly entirely occupied by the roadway. Peter Philpot, who was killed, and the accused, and all of the eye witnesses to the killing-in fact, practically all of the witnesses in the case-were negroes, and Opinion. the differences between the witnesses as to what they observed at the time of the trial is such that it is not easy to state the facts exactly. There was testimony on behalf of the Commonwealth of previous threats which Sims had made against the deceased, and Sims himself says that, during the watermelon season, when he sent a message to Dorothy Philpot to accompany him to the watermelon patch, the deceased poked his head out of a window and told the messenger to tell Sims to go to hell. Sims having overheard this called out, "If you have got anything against me why don't you come out in the road and tell me yourself?" He testified, however, at the trial, that the deceased had been to his house several times after that, and he always spoke every time they met, and there did not seem to be anything wrong with him, and he (Sims) knew there was not anything wrong with himself. His account of what took place at the time of the shooting, as given in connected form, is as follows: "Yes, Jennie Hunt, she came, and we was all there laughing and talking, and when he came in that night, when Peter came in that night, just before he came in my brother had sent me my supper, and I had been to Roanoke that day and I had bought me some fish, and I was standing there eating, and Jennie asked me to give her a piece of fish, and I gave it to her, and then Lucy Jane asked Jennie to give her a piece and she gave it to her, and Dorothy was standing there, too, and Peter Philpot walked in and spoke, and we all spoke, and he says, 'Lucy Jane, when are you going home?' She says, 'I am going now just as soon as I finish eating this fish.' He says, 'Yes, and I am going to burn you up for being up here,' and I was standing behind the counter and I never did quit eating; I stayed there, and he walked on outside, and when he |