Bailey v. Com.

• Decision Date: 27 November 1950
• Docket Number: No. 3753,3753
• Citation: Bailey v. Com., 62 S.E.2d 28, 191 Va. 510 (1950)
• Court: Virginia Supreme Court
• Parties: JODIE BAILEY v. COMMONWEALTH OF VIRGINIA. Record

Page 28

62 S.E.2d 28

191 Va. 510

JODIE BAILEY v.COMMONWEALTH OF VIRGINIA.

Record No. 3753.

Supreme Court of Appeals of Virginia

November 27, 1950.

S. W. Tucker and Martin A. Martin, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

L. P. Brockwell, Sr., service manager of a garage in Greensville county, was killed as the result of a stab wound which entered his heart, inflicted by the defendant, Bailey.A jury convicted Bailey of first-degree murder, fixed his punishment at life imprisonment and he was sentenced accordingly.He contends here that the trial court erred in overruling his motion to quash the venire, and that the evidence was not sufficient to support a conviction of murder in the first degree.We shall look first to the sufficiency of the evidence, viewed in the light most favorable to the Commonwealth, the jury's verdict having settled the conflicts.

Brockwell was a large white man six feet, three inches tall and weighing 200 pounds.Bailey was a small Negro, five feet, four inches tall and weighing 108 pounds.On the afternoon of the difficulty Bailey came to the garage to get a car belonging to his father-in-law which had been left there for repairs.He was drinking but not drunk.He entered the garage and went to Brockwell's desk, saying he had come to get the car and 'he was going to ride tonight.'Brockwell called his son, B. G. Brockwell, and told him to add up the bill and let Bailey know what it was.When that was done Bailey questioned the amount.Young Brockwell told him he would have to pay the bill or wait until the insurance man came the following Tuesday.Bailey's reply was, 'You all are nothing but a bunch of white crooks.'Brockwell reported this conversation to his father.While he was doing so Bailey came up and threw a check down, stating that was all he was going to pay.L. G. Brockwell told him to come back Tuesday, whereupon Bailey put the check in his pocket and was 'mumbling and mouthing' about white crooks.There was a boy with him who tried to get Bailey to go on out.

In checking the bill for repairs B. G. Brockwell took Bailey to see the parts manager in the show room.The latter gave Bailey a list of the necessary parts, told him what the bill would be and advised him to wait until Tuesday when the adjuster would be there so the car could be fixed right.Bailey replied that 'he was going to ride that night regardless.'

After L. P. Brockwell told Bailey he could not get the car, a colored employee at the garage talked to Bailey and told him to go on out.Bailey did not go but kept on talking about the car, saying, 'The whole bunch is a bunch of crooks.'The colored boy testified that Brockwell then said, 'I have done took enough,' went over to Bailey and hit him; that they were fighting or 'scuffling,' got outside, and he couldn't say what happened then.This witness told the chief of police, however, three days after the killing, that after Bailey said the whole outfit was a bunch of crooks, Brockwell got up and pushed Bailey out of the door and that was all he saw.

Other witnesses, five of them, who saw the encounter, or parts of it, testified that Brockwell was at his desk when Bailey, with his hands in his pockets, was saying that there was a bunch of white crooks there; that Brockwell got off his stool, told him he had better go on out and started to shove his shoulder, whereupon Bailey began striking him.One witness said that Brockwell was standing at his desk with his hands at his sides when Bailey struck him, whereupon Brockwell caught Bailey by the shoulder and shook him and then proceeded as if to push him out.They then disappeared behind a truck which was parked at the door of the garage, and when they next came into view Bailey made a lunge at Brockwell with a knife and struck him in the chest.

Following that, the son stepped between them, not knowing his father had been cut.The son struck or struck at Bailey, who then 'started as if he was going,' but stopped about the middle of the street and looked back.He then had a knife in his right hand which he shifted to the palm of his hand with the blade up and put it in his pocket.

Brockwell, in the meantime, not realizing that he had been seriously injured, came back to his desk and started to work.When it was seen he was bleeding, a doctor was summoned but Brockwell died about five minutes after the doctor arrived.

In addition to the stab wound in his heart there was a stab wound in his left side and an abrasion below his left rib.There was also a distinct scratch on his belt five or six inches long, made by a sharp cutting instrument.

The defendant had no wounds and showed no bruises.His version was that in questioning the repair billhe said, 'It looks like a clique.'Then he turned his head and Brockwell hit him on the back of the neck; that he fell and then Brockwell kicked him in the groin; that as he was trying to go out into the street Brockwell was behind him, beating him, 'and then I -- well, I struck him.'He said he took his knife out while Brockwell was behind him beating him; that he was not angry enough to want to hurt anybody.His attorney asked him, 'But at the time you took your knife out were you afraid?'He replied, 'Yes, sir.'

Later that day Bailey told the sheriff that he did not own or carry a knife and again the next day he repeated to the sheriff that he did not have a knife and stated that he did not cut Brockwell.

Whether Bailey was guilty of murder in the first degree was a question for the jury under the evidence as they had a right to view it and the inferences they had a right to draw from it.

A willful, deliberate and premeditated killing is murder in the first degree.Code, 1950, sec. 18-30.It must be a predetermined killing upon consideration, and not a sudden killing done in the momentary excitement and impulse of a passion which was engendered by adequate provocation.Wells v. Commonwealth, 190 Va. 619, 625, 57 S.E. (2d) 898, 900.

But that does not mean that a measurable period of time for pondering must have elapsed.The intention to kill may have come into being only at the time of the killing and the act still be first-degree murder.It is the will and purpose to kill and not the interval of time which fixes the grade of the offense.Mosby v. Commonwealth, 168 Va. 688, 694, 190 S.E. 152, 154;Bryan v. Commonwealth, 131 Va. 709, 716, 109 S.E. 477, 479;Wright v. Commonwealth, 75 Va. 914, 920.

To constitute a willful, deliberate and premeditated killing, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should come into existence for the first time at the time of such killing or any time previously.' Wright v. Commonwealth, 33 Gratt. (74 Va.) 880, 893.Bradshaw v. Commonwealth, 174 Va. 391, 398, 4 S.E. (2d) 752, 755;9 M.J., Homicide, sec. 21, p. 362.

It is an established principle of our criminal law that a mortal wound given with a deadly weapon in the previous possession of the slayer, without any, or upon very slight provocation, is prima facie willful, deliberate and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.Scott v. Commonwealth, 143 Va. 510, 518, 129 S.E. 360, 363.

Whether the evidence in this case showed such extenuating circumstances was peculiarly within the province of the jury to decide.Bryan v. Commonwealth, supra.

Because of the offensive language of the defendant, the deceased had a right to request him to leave the premises, and upon his refusal to do so, the further right to remove him by reasonable force.Montgomery v. Commonwealth, 98 Va. 840, 842, 36 S.E. 371, 372;6 C.J.S., Assault and Battery, sec. 94, p. 952; 4 Am. Jur., Id., sec. 70, p. 165.

There was evidence that the defendant struck first; in any event there was evidence to support a finding that the deceased used no more force than was reasonably necessary.Either in making the initial assault or in refusing to yield to a lawful effort to eject him, the defendant was the aggressor.The announced purpose of the defendant, in demanding his automobile, 'to ride regardless;' his repeated insults spoken while he kept his hands in his pockets where he had his knife; his refusal to leave the premises and his resort to a deadly weapon to resist being ejected in a reasonable manner and without physical harm to him, coupled with his readiness to inflict death, made it a question of fact for the jury, and not a question of law for the court, whether there was any provocation for the killing, or too slight provocation to amount to extenuating circumstances.Scott v. Commonwealth, supra;Honesty v. Commonwealth, 81 Va. 283, 292;Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E. (2d) 476, 480;Sims v. Commonwealth, 134 Va. 736, 762, 115 S.E. 382, 390;Howell v. Commonwealth, 26 Gratt. (67 Va.) 995, 1006-7;Mitchell v. Commonwealth, 33 Gratt. (74 Va.) 872;9 M.J., Homicide, sec. 40, p. 378 ff.

The grade of the defendant's crime being a question for the jury, it was essential that the jury which tried him be properly constituted.The defendant filed a written motion to quash the venire facias on the ground that his right to the equal protection of the law, secured to him by the Fourteenth Amendment of the United States Constitution, had been violated, in that there had been discrimination against colored persons, solely because of their race, in the selection of the jurors summoned for his trial.

He alleged, in substance, that according to the United States census in Greensville county more than 50 per cent. of the male persons twenty-one years old and upwards were colored, approximately one-half of whom were qualified for jury service;...