dissenting.
Not only is the evidence in this case ample, as stated in the opinion, to justify the conclusion of the jury that Deal’s death was caused by criminal violence. It is also ample to justify the conclusion of the jury that beyond any reasonable doubt Plymale, the defendant, was the author of the criminal violence, the perpetrator of the crime of killing Deal to get his money and then setting fire to the house to conceal his crime.
The fire was discovered about three-thirty in the morning in the living quarters of Deal, who was 76 years old and known to possess considerable money. All the occupants *598of the building were aroused and escaped except Deal, who could not be aroused. He was already dead from multiple fractures of the skull and face, inflicted by some blunt instrument. The defendant said the blunt instrument was an iron bar which he had left stuck up in the chimney in Deal’s room. He asked his brother-in-law, Rogers, to get it and hide it, because that was the only thing that would incriminate him in the killing of old man Deal. Rogers and Plymale’s wife found the iron bar and hid it. The sheriff found it where Rogers said it was hidden.
Plymale was out of a job and out of money at the time of the killing. Immediately thereafter he was in funds and spending freely. About midnight of the third day after the fire he had Rogers drive him to an alley behind the Deal place. He explained that he had something up the alley that he wanted to get. He got into the car again a little later as Rogers slowed up at an appointed place. He asked Rogers to drive up a hollow and there he took a large, sum of money out of his pocket, told Rogers to. turn out his lights, then disappeared into the woods for some fifteen minutes. He told Rogers he had killed for this money once and would do the same for him if he told. A day or two later he told Rogers that he would not have set fire to the building if E. K. Bowen had not turned yellow on him; that they had planned to throw the body into the river, but after Bowen turned yellow he went over to the house and poured on some oil and stuff and set fire to it.
Unless he has not had the fair trial to which he was entitled under the law, the verdict of the jury, finding him guilty of first-degree murder and fixing his punishment at forty years in the penitentiary, and the judgment of the court approving it, ought not to be set aside.
It is said that the testimony of Sheriff Thompson and Deputy Fire Marshal Goode relating to accusations made by the sheriff to the defendant was hearsay and inadmissible.
“In civil and criminal cases, all objections to * * the admissibility of evidence # * shall state with reasonable *599certainty the ground of objection, and unless it appears from the record to have been so stated, such objections will not be considered by this court except for good cause shown, or to enable this court to attain the ends of justice.” Rule 1:8.
When the sheriff was called as a witness he was asked:
“Will you state to the Court and Jury what was said in the presence of the defendant and what he said to you?
“Mr. Collins [counsel for defendant]: We don’t want the witness to state any hearsay evidence.
“The Court: If the' statements were made in the presence of the defendant it is admissible or anything said by the defendant it is admissible.
“Mr. Collins: May we ask the Court on [sic] question.
“The Court: Mr. Thompson, don’t give in your answers any hearsay testimony or any statement based on hearsay. You understand what I mean? Ask the question Mr. Stephenson.”
No further objection and no exception was made to the testimony of the sheriff, who was fully examined and cross-examined. He related that he accused the defendant of murdering Deal and burning the building, showing him first the iron bar he murdered Deal with; accused him of not borrowing money from his brother-in-law to pay off a lien against his car, but attempting to establish an alibi; of telling the driver of the cab who had taken him to see E. K. Bowen that night to forget that he had seen him. The defendant was then sitting on a bench and at times held his head in his hands and at other times sat erect. The only thing the defendant said in response was that “he could not tell us anything.” This occurred about eleven-thirty at night after defendant had been arrested.
The next morning at ten-thirty the sheriff walked into the defendant’s cell, the floor of which “was literally covered with cigarette butts,” and said to him, “you know everything I told you last night was so, and to this he said yes."
*600When the sheriff said on cross-examination that he assumed the defendant knew what he was talking about, the sheriff said also that he only talked to the defendant one time the night before.
When Goode was being examined he was asked what accusations were made in the defendant’s presence and answered that the sheriff brought out the iron bar and told the defendant that was the bar he had killed Deal with and defendant made no reply. After the answer was made defendant’s counsel said, “We object to this, it’s hearsay all the way through.” The court replied, “I don’t think that is hearsay when he was right there. Objection overruled.”
The defendant does not contend in his brief that this evidence from the sheriff and Goode should have been rejected because it was hearsay. He says it was inadmissible because the defendant was under arrest and that this court should adopt the rule of inadmissibility in that case followed by some courts, as pointed out in Owens v. Commonwealth, 186 Va. 689, 703, 43 S. E. (2d) 895, 901. In that case the defendant was not under arrest and we held that evidence that he remained silent when accused was admissible.
Not only was there no adequate objection to the testimony of the sheriff and Goode on the ground on which the defendant now claims it was inadmissible; but that testimonv, if inadmissible to show a silent admission, became admissible as part of the vocal admission made by the defendant to the sheriff the following morning.
Under the circumstances shown by the record the admission of this testimony was not, in my opinion, error for which this case should be reversed.
The opinion states that an atmosphere most detrimental to the accused was created by asking him on cross-examination whether Sheriff Thompson, Rogers, Goode and another witness had “falsified.” If proper objection had been made the court should and probably would have forbidden the question in that form because argumentative, but no objec*601was made and the experienced counsel for defendant may-have had good reason for not objecting. There is not only no request for reversal but not even any complaint here on that score.
While the defendant assigns error to permitting the sheriff to remain in the courtroom “and have custody of the jury,” the sheriff did not in fact have custody of the jury. This jury was not kept together, as permitted by Code § 19-188, and the record shows that at each adjournment or recess the jurors were instructed not to mention the case to anyone and not to allow anyone to mention the case to them. So far as the record shows this injunction was strictly obeyed. The court said it needed the sheriff in the conduct of the court. It was in the sound discretion of the court whether he should be excluded. Code, § 19-219; Burford v. Commonwealth, 179 Va. 752, 760-1, 20 S. E. (2d) 509, 512.
This sheriff had been in office some eight years and, of course, was known to the jurors. There is nothing in the record to indicate that his presence in the courtroom during the trial gave the jury any different impression of his attitude than his appearance and testimony on the witness stand alone would have done. It may be conceded that it would have been better under the circumstances to exclude him, but there is no showing of prejudicial error in allowing him to remain. Campbell v. Commonwealth, 194 Va. 825, 834, 75 S. E. (2d) 468, 474.
It cannot be questioned that it is a long established principle of our criminal law that every unlawful homicide is presumed to be murder in the second degree, and an instruction to that effect is usually necessary in a homicide case. But it is not always necessary. Taylor v. Commonwealth, 186 Va. 587, 591, 43 S. E. (2d) 906, 908. In criminal cases, as in others, instructions should be based on the evidence and the character of the evidence controls the character of the instructions. Here, according to the Commonwealth’s evidence, the defendant admitted that he killed Deal for his money. That sort of killing is first-*602degree murder, made so by statute, Code § 18-30, and no other degree is recognized or provided for. The defendant said he did not kill Deal for his money or any other reason. He was not there and had nothing to do with it, he said. There was no middle ground here. The evidence made a case of first-degree murder or no offense at all. The presumption of second-degree murder yields to facts. Thomas v. Commonwealth, 186 Va. 131, 138, 41 S. E. (2d) 476, 479. There is no room for the presumption where the facts are shown and where under the facts as shown there could be no question as to the degree of the murder if murder was committed. While the jury could have returned a verdict of second-degree murder in spite of the evidence, and nothing could have been done about it, it would have been an improper verdict and there was no reason in law or logic for the court to have suggested the propriety of that sort of verdict by giving Instruction H. Bell v. Commonwealth, 167 Va. 526, 541, 189 S. E. 441, 448.
It has been said that there is no such thing as a perfect trial. It may be conceded that this trial does not disprove that saying, but it presents evidence clearly sufficient to establish that this defendant committed a cruel and ruthless murder. His punishment was fixed in a trial in which, in my opinion, no substantial error was committed in prejudice of his legal rights. I think his conviction ought to be affirmed.
Eggleston and Smith, JJ., join in this dissent.