dissenting.
A jury has found that an eleven-year-old, helpless child has come to her death by a cruel, vicious beating administered to her by her father in a heartless display of anger and rage. An able and learned trial judge has approved the verdict. On review by this court, the life of the accused is at stake. It is a grave matter to say that his life should be forfeited. It would be far easier to agree that death is too severe a punishment for his offense and grant him another trial; but the administration of law and the welfare of society is involved. We must solemnly determine whether or not the accused has had a fair and just trial, according to the law and the evidence.
The appalling nature of the accused’s offense and its tragic results are fairly set out in the majority opinion.
Based on the evidence, eleven instructions were given to the jury. They related to murder in the first and second degrees, voluntary manslaughter, and simple assault. Of course, they must be read and considered in connection with each other.
Instruction number 4 is a standard or stock instruction, which states the law in Virginia as it has been established for more than a century. It is a statement of general principles to be applied to facts ascertained by the jury. Nowhere does it state that the weapon used by the accused was a deadly weapon, as a matter of law. It says that: “If the prisoner, with a deadly weapon in his possession, without any or upon very slight provocation gave to the deceased a mortal wound, he, the prisoner, is prima facie guilty of wilful, deliberate and premeditated killing, * * * .”
*258The word “If” presented the question of fact. It qualified the application of the principle stated to the employment of a deadly weapon as the instrument of death.
The statement of the principle was justified by the evidence of Dr. H. H. Hammer, the coroner,, a physician who testified that the fracture of the child’s skull could have resulted from a lick with the stick introduced in evidence, and that the fracture and the beating she received were the cause of her death. Neither the personal character nor the professional ability of Dr. Hammer was attacked. His evidence was uncontradicted. In fact, his report as to the nature of the extent of the child’s injuries was fully corroborated.
The accused claimed that he did not use the stick 'exhibited in evidence. The jury evidently did not believe him. They believed that he did use it, that it was capable of being used and was used to inflict the fatal injuries.
The instruction was further justified by the vicious, cruel and inhuman attack, the result of which demonstrated the deadly capacity of the stick.
Instruction number 9 also presents the issue of fact whether the stick used by the accused was a deadly weapon. This instruction reads, in part, as follows:
“The Court instructs the jury that they should find the defendant, Henry Pannill, not guilty if they believe from the evidence that he struck the deceased, Louise Pannill, with an ordinary switch or branch of a tree without intent to kill her or to do her great bodily harm, or if they believe the deceased came to her death from an attack of apoplexy or spasms, and that the fracture of the skull was the result of falling on the rock step, or from any other cause than the licks inflicted by the defendant.”
No one contends that the stick involved is a deadly weapon as a matter of law, any more than an ordinary walking stick or an ice pick. As Mr. Justice Gregory says: “It is the manner of its use which determines its capacity as a deadly weapon.” Our statute, Virginia Code, 1942, (Michie), sec*259tion 4393, does not confine murder to a killing with a deadly weapon. Any wilful, deliberate, and premeditated killing is murder, however, regardless of the nature of the weapon or means used to cause death.
I know of no rule or reason which justifies us to reject arbitrarily both the evidence of the physician, one peculiarly qualified to determine the extent of injuries which might be inflicted by the stick, and the conclusion of the members of the jury, as competent as are the members of this court to evaluate the capacity of the stick and the result of its use, and say that, having seen the stick, we do not believe that it could have been used to produce death or great bodily injury.
There were no extenuating circumstances for the horrible crime of the accused. He secured a stick, called the child from the house to the barnyard, stripped her of her clothes, and, while she cried in terror and ran around and around, beat her until she collapsed. The result of his attack was apparent to him. He had ample time for reflection and meditation. The time and opportunity for deliberation, the terrible wounds and bruises on the body of the child from her knees to the top of her head, on her throat and face, and the blow on the side of her head, all afford tragic evidence which. proclaims aloud an act of premeditation and malice. The nature of his act and its immediate and necessary consequences furnish the presumption that he was either indifferent to the fate of the child, or wilfully, and deliberately intended to kill her.
Of course, we ought not to require such a strict performance of Rule of Court XXII as to cause injustice. It is far more important that a man should have a fair trial than that mere rules of procedure, however necessary in the administration of justice, should be strictly observed; but no man is entitled to more than one fair trial.
I cannot subscribe to the view that a single circumstance in the facts or in the pleadings warrant any exception to Rule XXII.
*260The accused was represented in the trial court and in this court by able and experienced counsel of his own choosing. The record shows that he has been forcefully and capably represented.
From the record, it seems apparent that counsel for -the accused realized that if the jury believed Pannill beat his child with the stick in evidence, in the manner related, it had the right to consider whether the stick became a deadly weapon as a matter of fact through the use made of it. That was, in truth and in reality, the principal issue before the jury. The accused asked for no instruction describing or defining a deadly weapon. In this court no point was made of his failure so to do. Such an instruction would have merely defined a deadly weapon. The evidence supplied the essential requirements of the definition. An instruction pointing out this feature of the case could not have been helpful to the accused.
In my opinion, the record amply sustains a conviction of murder in the first degree,—premeditated, malicious, cold, brutal, and cowardly. Rarely does a more brutal murder come before us. Under the circumstances, this court should not be alert to discover a loophole through which the accused can escape merited punishment. As I see it, the opinion of the majority does violence to long established rules of law.
Campbell, C. J., and Holt, J., concurring in dissent.