Dawkins v. Commonwealth
| Decision Date | 03 March 1947 |
| Citation | 41 S.E.2d 500,186 Va. 55 |
| Court | Virginia Supreme Court |
| Parties | DAWKINS . v. COMMONWEALTH. |
Error to Corporation Court of City of City of Lynchburg; S. DuVal Martin, Judge.
D. J. Sidney Dawkins was convicted of unlawfully causing bodily injury to another within intent to maim, disable, disfigure, or kill, and he brings error.
Judgment affirmed.
Before HOLT, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.
T. W. Messick and L. E. Hurt, Jr., both of Roanoke, and Shuler A. Kizer, of Lynchburg, for plaintiff in error.
Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.
D. J. Sidney Dawkins was indicted under Virginia Code, 1942 (Michie), section 4402, the charge being that he "in and upon one Robert C. Rogers feloniously did make an assault and him, the said Robert C. Rogers then and there unlawfully, feloniously and maliciously did strike, beat and wound and did then and there unlawfully, feloniously and maliciously cause bodily injury to the said Robert C. Rogers by means of divers and sundry blows with his fist and by kicking and kneeing him, the said Robert C. Rogers in the groin and in and about the legs with intent him, the said Robert C. Rogers, then and there to maim, disable, disfigure and kill, against the peace and dignity of the Commonwealth of Virginia."
He was tried by a jury, which returned this verdict:
"We the jury find the defendant, D. J. Sidney Dawkins, sometimes also called Scotty Dawkins, guilty of unlawfully causing bodily injuries to Robert C. Rogers with intent to maim, disable, disfigure or kill him, as charged within the indictment, and fix his punishment at 3 years confinement in the penitentiary."
A motion to set aside the verdict on the ground that it was contrary to the law and the evidence was overruled, and the defendant was sentenced in accordance with the verdict.
The evidence in the case is in hopeless conflict. Since the jury has believed that presented by the witnesses for the Commonwealth, and their verdict has been approved by the trial court, we must accept as proven those facts sustained by credible evidence. That evidence may be summarized as follows:
About 4:30 p. m. on October 22, 1945, Robert C. Rogers drove his car out of a public garage into the line of traffic proceeding west on Church street, in the city of Lynchburg. He entered into the line of traffic immediately in front of an automobile driven by Dawkins. It was his intention to drive westwardly as far as 5th street, turning off there. As Rogers approached the first intersection (apparently 7th street), the light being green, the defendant's car bumped into him "from the rear, very hard." Continuing in the line of traffic, moving slowly, at a distance of fifty feet farther on, Rogers' car received "another hard bump from the rear." Traf-fic had speeded up somewhat by this time, and there was sufficient space for any car in the rear to pass the car of Rogers, if the driver so desired; but while in the block between 7th and 6th streets, Rogers' car was bumped for the third time by the car of the defendant. Rogers speeded up his car somewhat; but, nevertheless, as he entered the block between 6th and 5th streets, the defendant bumped into his car a fourth time. Determined to find the reason for such actions, and holding out his hand for a stop, Rogers pulled over toward the curb, cars being parked next to the curb, headed into a small space and stopped. After he had stopped, the defendant's car gained momentum and hit him again, "a definitely hard blow, harder than any of the others."
Rogers, irritated, got out of his car and went back to the defendant's car and said to Dawkins: "What is the meaning of this damn foolishness?" Rogers positively denied that he used any profanity or vile epithet towards Dawkins. The reaction of Dawkins towards Rogers' inquiry was immediate. He struck through the open window of his car door at Rogers, and exclaimed, The anger of Dawkins being apparent, and Rogers, realizing that he could not match the physical powers of the defendant, tried to keep the door of the car closed so as to prevent Dawkins from getting out to the street. Dawkins, however, forced the door open, got out, immediately assaulted Rogers, hitting him in and about the face with his fists, kicking him on the legs, and striking him at least twice in the groin with the knee. Rogers said his face was beaten to a pulp, both eyes were closed, his nose was broken in several places and mashed over on his cheek bone, and that he suffered much pain and physical anguish.
The injuries received by Rogers were described by two physicians as multiple fractures of the nose, including a breaking of its inner membrane, a permanent displacement of the nose, and an almost complete obstruction of the right naris, and also severe bruising and discoloration of the genital organs.
As a result of his injuries, Rogers was Confined to his bed, except for visits to his doctors, for three weeks.
After the affray, Rogers immediately summoned the police, and with them returned to the scene, where a crowd had gathered. According to two disinterested witnesses, Dawkins then said to Rogers: "I will twist your nose on the other side of your face, " and "I'll kick the hell out of you, " in addition to other vulgar expressions.
Rogers is a salesman, 45 years of age, 5 feet, l\y2 inches tall, and weighs 155 pounds. He was in bad health, and had been more or less of an invalid since 1944, when he had undergone a serious operation on his bladder.
Dawkins is a promoter of professional wrestling matches. He is 37 years of age, 5 feet, 9y2 inches tall, and weighs 220 pounds. He began professional wrestling at the age of 18, and although he practically gave up that profession in 1938, he still enters the ring sometimes to fill in as a substitute. He said he was discharged from the armed services because his leg "turns red on each of my shanks."
Character witnesses gave each of the parties a good reputation as peaceful, law-abiding citizens, and for truth and veracity.
In contradiction of the above evidence, Dawkins stated that he bumped Rogers' car only twice, and that the bumpings were unintentional. He said that when Rogers complained to him using vile and profane language, that he, Dawkins, then got out of his car to show Rogers that no damage was done; that as he opened the car door Rogers slammed it against his leg, and started hitting him; and as he got out on the street Rogers hit him on the chin. He further said that he struck Rogers with his fists only two or three times in order to protect himself. He denied that he kicked or struck Rogers with his knee, or, after the affray, used the threatening or abusive language attributed to him. His testimony was corroborated by one of his employees, who was a passenger in the car with him at the time of the altercation.
The indictment is in compliance with Code, section 4402.* It includes, among its allegations, a charge of maliciously and unlawfully causing bodily injury, and a description of the means used to inflict such injury, that is, by the fist, foot and knee.
Numerous instructions were given covering malicious injury, unlawful injury, simple assault and battery, and the right of self-defense. Upon the evidence and under the instructions, the accused was found guilty of an unlawful assault, etc.
There are six assignments of error, but they raise only two principal issues. It is contended that the evidence was insufficient to warrant the giving of any instructions on maliciously or unlawfully causing bodily injury, or to sustain a conviction for unlawfully causing bodily injury.
In Harris v. Commonwealth, 150 Va. 580, 142 S.E. 354, 355, 58 A.L.R. 1316, this is said: "The true purpose and meaning of the statute was doubtless conceived to be to define and punish as felonies those acts which had theretofore been considered misdemeanors only in those cases where it also appeared that there was the felonious intent to maim, disfigure, disable, or kill."
Due to the conflicting evidence, there is a sharp difference in the Commonwealth's theory of the case and the theory of the defendant. It is the theory of the...
To continue reading
Request your trial
-
Johnson v. Com.
...to kill will be presumed." Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693, 695-96 (1944); see also Dawkins v. Commonwealth, 186 Va. 55, 64, 41 S.E.2d 500, 504 (1947) (stating that "one may permanently maim, disfigure, disable, or kill with the fists, or knees, if the force is applie......
-
Flanders v. Commonwealth
...at 280, 322 S.E.2d 216 (quoting Williamson v. Commonwealth , 180 Va. 277, 280, 23 S.E.2d 240 (1942) ); see also Dawkins v. Commonwealth , 186 Va. 55, 61, 41 S.E.2d 500 (1947) (defining malice as "the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of i......
-
Fletcher v. Commonwealth
...of fact]." Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473 (1989) (alteration in original) (quoting Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500 (1947) ). "Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed a......
-
Tizon v. Commonwealth
...in the “doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.” Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). “Implied malice may be inferred from ‘conduct likely to cause death or great bodily harm, wilfully or purposefully......