Abdell v. Commonwealth

• Decision Date: 10 April 1939
• Court: Virginia Supreme Court
• Parties: ABDELL. v. COMMONWEALTH.

2 S.E.2d. 293

ABDELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 10, 1939.

Rehearing Denied June 20, 1939.

Error to Corporation Court of Norfolk; Richard B. Spindle, Judge.

J. C. Abdell was convicted of murder, and he brings error.

Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Ivor A. Page, Jr., and Venable, Miller, Pilcher & Parsons, all of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin H. Gibson and Walter E. Rogers, Asst. Attys. Gen., for the Commonwealth.

CAMPBELL, Chief Justice.

This writ of error brings under review the judgment of the Corporation Court of the city of Norfolk, overruling the motion of the accused, J. C. Abdell, for a new trial and sentencing him to be electrocuted for the murder of his wife, Audrey Abdell, in accordance with the verdict of the jury.

It is assigned as error that the trial court erred in refusing to exclude from jury service venireman R. L. Gornto after he had been examined upon his voir dire and accepted as a juror by the court. When examined upon his voir dire, Gornto stated that he had formed a "hypothetical" opinion of the guilt of the accused from what he had read in the newspapers; that it was not a fixed opinion; that he was not sensible of any bias for or prejudice against the accused; that he could give accused a fair and impartial trial according to the law and the evidence; that he did not know either accused or his wife.

It is true that Gornto, when examined by counsel for accused, stated that the opinion he had formed was not favorable to accused. However, when asked this question by the court: "Mr. Gornto, can you go into this jury box with an open mind and wait until all the evidence is introduced before reaching a conclusion in this case?" His reply was, "I think so; yes sir."

In Ballard v. Commonwealth, 156 Va. 980, 159 S.E. 222, 229, Mr. Justice, Holt said:

"If intelligent jurors are to be secured, then there must be some relaxation of rules as to their competency. Most intelligent men and all educated men read newspapers, and they would have to be more than human if they did not form some opinion from accounts which they give of homicides like this, locally of intense interest to everybody. To reject them for this reason is to put a premium upon ignorance. What these men in substance say is that they have opinions based upon what they have read, but that they can go into the jury box and give fair judgment on the case as it is unfolded during the progress of the trial. More than this could not be expected from honest men of good intelligence.

"Where, as here, jurors are examined in detail both by counsel and by the judge, the rule that a judge's judgment should be given weight applies with particular force. He better than any one else can gauge their candor and their purpose to give fair judgment on the evidence."

The doctrine announced in that case was approved in Cox v. Commonwealth, 157 Va. 900, 910, 162 S.E. 178, 182, in an opinion delivered by Mr. Justice Hudgins. In the course of the opinion this is said:

"In Robinson's Case [Robinson v. Commonwealth], 104 Va. 888, at page 892, 52 S.E. 690, 691, Judge Keith quoted the syllabus in the McCue Case [McCue v. Commonwealth], 103 Va. 870, 49 S.E. 623, as follows:

" 'The trend of recent decisions is in the direction of limiting, rather than extending, the disqualification of jurors by reason of mere opinion, hence the courts inquire into the character of that opinion. If it is a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground formed, the juror is incompetent; but if the opinion is merely hypothetical, and the court is satisfied from an examination of the juror on his voir dire, or otherwise, that he is not biased or prejudiced, and that he can give the prisoner a fair and impartial trial according to the law and the evidence, he should be accepted. No fixed and invariable rule can be laid down whereby to testthe competency of jurors, but each case should be determined by its own facts and circumstances, and great weight should be attached by an appellate court to the opinion of the trial judge.'"

A careful examination of the questions propounded to Gornto and the answers given thereto plainly demonstrates that he was an impartial juror. However, his name was stricken from the panel. The assignment of error is without merit.

There are twenty-nine additional assignments of error set forth in the petition, but in view of our ultimate conclusion, no good purpose can be accomplished by a minute discussion of those assignments, which in our opinion, are without merit.

Assignments of error 8, 16, 18 and 29 challenge the action of the trial court in refusing to strike the evidence of the Commonwealth at the conclusion of the Commonwealth's case, and in refusing to set aside the verdict of the jury as contrary to the law and the evidence.

The pertinent facts relied upon to sustain the conviction of J. C. Abdell are: On Monday, the 11th day of May, 1938, the body of Mrs. Audrey Abdell, wife of the accused, was found in the kitchen of her residence in the city of Norfolk. H. A. Shannon, a police sergeant of the city, stated in substance that he lived in the neighborhood of the Abdell residence; that at approximately 4:30 P. M. he was called to the Abdell residence; that as he approached the front of the house he smelled the odor of gas; that he went to the door and tried to gain an entrance, but found the door and windows securely closed; that he broke out a window pane and unlatched the window and entered the kitchen; that he observed the body of Mrs. Abdell upon the floor; that after opening the door to permit the circulation of air, he went back to the gas stove and cut off the six open burners; that he took hold of Mrs. Abdell's arm, but that rigor mortis had set in and artificial respiration could not be given; that the body was lying immediately in front of the gas stove with a blanket covering the body, except the head and feet; that a second blanket was tucked into the flanges over the gas jets of the stove and hung down, tent-like, in front of the body which was facing the stove approximately eighteen inches therefrom; that underneath the nose there was a stream of blood extending ten feet or more to a pantry door; that there was no blood upon the blankets or wearing apparel; that all the doors and windows of the house were tightly closed; that he notified certain police officers and the city investigator.

Dr. C. D. MacDonald, coroner of Norfolk, stated that he performed an autopsy upon the body of Mrs. Abdell; that he ascertained from tests that she died of carbon monoxide poison; that upon examination of the body he found multiple bruises and abrasions on the body; that they consisted of a black discoloration around the right eye, a bruise over the right cheek from the right ear to within a half inch of the right eyelid, a bruise on the left cheek, a bruise and cut on the inside of the mouth, bruises and abrasions' on the arms and elbows, a bruise on the left leg the size of a man's hand, an abrasion on the left shoulder, an abrasion on the outside of the right knee, an abrasion on the frontal bone, deep bruises and swelling on both sides of the chin, and on the scalp, back of the head a bruise that measured across two inches and up and down one inch. The witness further stated that in his opinion the condition described was the result of blows administered to the body, sufficient in themselves to produce unconsciousness.

Mrs. A. J. Wright stated that she lived in the upstairs of the Abdell residence; that she saw Mrs. Abdell on the morning of May 11th; that her condition was normal; that Mrs. Abdell consented to deliver her laundry to the laundryman that morning; that "she said she was going to be there all morning doing some ironing and would see me down town that afternoon"; and that a young son of the Abdells' was in the house when she left to go to work.

The Abdells' son, James C. Abdell, Jr., stated that on the morning of the tragedy his mother was in good spirits, and perfectly normal; that on the day before her death his mother informed him that she found two notes (which will be later referred to) in his father's room; that at her request he put an extra latch on her door; that his father came to the house frequently, but had not spent the night in the home for years--two or three; that he heard his father threaten his mother; that "he told her that one of these days she would be among the missing"; that on one occasion he had threatened to kill his fa-ther. The two notes found by Mrs. Abdell are as follows:

"My Dear Clifton and Bobby, "I'm going away on a long trip and not coming back. I want you both to love and obey your Daddy for I realize that even with his mistakes he has been far better than the average father. I also realize more than ever, these past few weeks, that I have not been the kind of wife I should. You boys do not understand now, but with God willing I hope some day you will.

"So now before leaving, may I again say, be good, be kind, be true and mind your Daddy and I'm sure he will always stick by you.

"Lovingly

"Mum."

And:

"Dear Clifton,

"I am going away but before I go away I wish you all the luck and happiness in the world. I know you have done many things you should not of done, but I let my jealousy and madness get the best of me and now I realize there is little or no happiness for us together because of my many shortcomings, and I beg you to forgive me for leaving, forgive me for being the deceitful and rotten wife I have been and forgive me for causing you so much worry, so many heartaches, by talking about you to everyone, by pulling always against you, by making the children work against you and by letting my meanness ruin you and everything you worked and strived for. I am leaving the children...