Cantrell v. Commonwealth

*399STEPHENSON, J.,

concurring in part and dissenting in part.

I concur in the result reached by the majority. I agree that the trial court erred in permitting the private prosecutor to act under the facts presented and in excluding the expert medical testimony. I cannot agree, however, that it was proper for the court to instruct the jury that “the Commonwealth does not have to prove a motive for the killing.”

In many cases, this instruction is proper because, generally, motive is not an essential element of murder. Ward v. Commonwealth, 205 Va. 564, 570, 138 S.E.2d 293, 297 (1964). However, where, as here, the evidence is wholly circumstantial, “[t]he burden is upon the Commonwealth to prove beyond a reasonable doubt that motive, time, place, means, and conduct concur in pointing out the accused as the perpetrator of the crime.” Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976). (Emphasis added.) See also Boykins v. Commonwealth, 210 Va. 309, 312, 170 S.E.2d 771, 773 (1969); Abdell v. Commonwealth, 173 Va. 458, 470, 2 S.E.2d 293, 298 (1939).

This well-established rule has existed in the Commonwealth since Deans Case, 73 Va. (32 Gratt.) 912 (1879). Twice recently, relying upon the rule reiterated in Inge, we reversed convictions in wholly circumstantial evidence cases. The most recent was Bishop v. Commonwealth, 227 Va. 164, 313 S.E.2d 390 (1984), where we said:

We are guided by familiar principles. Where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.

Id. at 169, 313 S.E.2d at 393. (Emphasis added.) (Citations omitted.)

The other case was Stover v. Commonwealth, 222 Va. 618, 283 S.E.2d 194 (1981), in which we stated:

We believe the evidence in the present case fails to measure up to the Inge standard. We said in Inge that, where the *400evidence is circumstantial, “all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.” We said further that “[t]he chain of necessary circumstances must be unbroken.” . . . We do not believe that the circumstances of motive, time, place, means, and conduct concur in this case to form an unbroken chain linking the defendant to the murder . . . beyond a reasonable doubt.
The chain breaks down in its very first link. If the defendant’s loss to Taylor [the victim] in the dice game can be considered sufficient motive for murder, . . . others than the defendant had a similar motive.

Id. at 623, 283 S.E.2d at 196. (Emphasis added.)

In the face of such clear, settled law, I believe that the instruction constituted reversible error, and that, upon remand, it should be refused. In my opinion, the majority has implicitly overruled this line of cases and repudiated a fair and logical rule that has served the Commonwealth well for over a century.