Bailey v. Com.
| Decision Date | 16 June 1958 |
| Docket Number | No. 4795,4795 |
| Citation | 104 S.E.2d 28,200 Va. 92 |
| Parties | EARL M. BAILEY v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
A. Jeffery Bivins (Bivins, Jacobs & Bivins, on brief), for the plaintiff in error.
Thomas M. Miller, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.
Earl M. Bailey, sometimes hereinafter called the defendant, was indicted for the murder of Charles Jackson Pittman. He pleaded not guilty, and a jury having been waived in the manner prescribed by Code, § 19-166, Acts 1952, ch. 349, p. 649, he was tried by the lower court which found him guilty of voluntary manslaughter and fixed his punishment at confinement in the penitentiary for four years. Imposition of the sentence was suspended upon good behavior after service of ninety days in jail. The defendant appeals claiming that the judgment is contrary to the law and evidence.
The essential facts are not in dispute. Charles Jackson Pittman and Alice Rue were married on February 5, 1942. They had a son and daughter. Marital difficulties over a period of several years culminated in their separation on January 13, 1956, and in the following May the wife secured a decree of divorce a mensa on the ground of constructive desertion and cruelty. On January 7, 1957, with some misgivings on the wife's part, they resumed marital relations at their former residence in Hampton.
Earl M. Bailey, the defendant, had been a friend of the Pittmans before their marital difficulties arose. After the couple had separated, and even before, Mrs. Pittman and Bailey had been keeping company. She testified that they had planned to marry after her divorce had become final. This situation provoked the jealousy of Pittman who on a number of occasions before the homicide had voiced threats to kill Bailey.
On January 24, 1957, about noon, Mrs. Pittman telephoned Bailey requesting that he meet her at 2:00 p.m. on that day at her mother's apartment in the city of Warwick, stating that she desired that he bring her some pictures which her son wanted for his scrapbook. Bailey demurred, reminding Mrs. Pittman of the recent threats which her husband had made against him. Mrs. Pittman replied that her difficulties with her husband had increased and that, in fact, just two days before he had shot at her and she desired to discuss the matter with him, Bailey. She suggested that she would let him into her mother's apartment through the rear door. Bailey agreed to the meeting. Before leaving home he put in the pocket of his topcoat a pistol which, he said, he had recently been carrying because of Pittman's threats against him. Bailey went to the apartment at the agreed time and was admitted by Mrs. Pittman through the rear door leading into the kitchen. Mrs. Pittman locked the rear door and bolted and put the safety chain on the front door. She and Bailey were then the only occupants of the apartment.
The apartment, which is on a second floor, consists of a combination living and bedroom, a kitchen, a bathroom, and front hall, the latter leading from the bedroom to the bathroom.
The couple went into the bedroom and while they were standing there Bailey produced the desired pictures. He removed his topcoat and placed it on the bed and they sat together on the foot of the bed. After they had been together a few minutes, and while they were examining and discussing the pictures, they heard what Mrs. Pittman described as a 'soft knock' at the front door. This was immediately followed by a 'loud knock and the crashing of wood.' Mrs. Pittman ran to the front door and tried to hold it. She was unsuccessful in this and her husband crashed through the door and came into the hall. He rushed into the bedroom where Bailey was standing. Pittman was carrying under his leather jacket some object which both Bailey and Mrs. Pittman said they thought was a gun. According to Bailey's testimony, he grabbed his topcoat and took the pistol from the right-hand pocket. He said to the advancing Pittman, 'Jack, I have a gun too.' He fired at or toward Pittman but the bullet went astray and struck the television set which was just to Pittman's right. Pittman continued to advance and as he neared Bailey raised over his head the implement which he was carrying, indicating the purpose of striking Bailey with it. Bailey then saw that the implement was not a gun, as he had first thought, but was a lug wrench. Thinking that Pittman was about the strike him with it, he (Bailey) fired the second and fatal shot. When the police arrived shortly after the shooting the heavy lug wrench was found on the floor near Pittman's body.
Bailey testified that as Pittman advanced upon him from the front door and along the hall into the bedroom, he (Bailey) had no way of escape to either the front or rear door, except by going past his assailant. In this he was corroborated by the sketch of the apartment prepared by a police officer. This shows that the only doorway from the bedroom led into the hall, and that the only door from the hall into the kitchen was opposite the front door.
The case was defended in the court below on the ground that the killing was in justifiable or excusable self-defense. It is true, as the Commonwealth argues, that the homicide was presumed to be murder in the second degree and the burden was on the defendant to show that it was a case of justifiable or excusable homicide. Smith v. Commonwealth, 192 Va. 186, 189, 64 S.E.2d 761, 762, 763. The defendant insists that he has borne this burden and that despite the finding of the lower court that the killing was in self-defense, it erroneously convicted him.
As we interpret the finding of the lower court, it held that while the killing was shown to have been in self-defense, the defendant was deprived of the right to assert that defense because, it said, he was partly at fault in bringing about the difficulty which necessitated the killing, in that he was meeting Mrs. Pittman clandestinely at the time of the encounter.
After the evidence had been concluded the court said: ...
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