Banner v. Com.

• Decision Date: 02 December 1963
• Docket Number: No. 5624,5624
• Court: Virginia Supreme Court
• Parties: JACK BANNER v. COMMONWEALTH OF VIRGINIA. Record

Page 305

133 S.E.2d 305

204 Va. 640

JACK BANNER v. COMMONWEALTH OF VIRGINIA.

Record No. 5624.

Supreme Court of Appeals of Virginia

December 2, 1963.

M. M. Long and A. G. Lively, for the plaintiff in error.

Harold V. Kelly, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: SNEAD

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

Jack Banner, sometimes hereinafter referred to as defendant, was indicted under the Maiming Act, § 18.1-65 Code of 1950, as amended. ¹ The indictment charged that he 'unlawfully, feloniously and maliciously did make an assault, upon B. J. Atwood, and him the said B. J. Atwood, unlawfully, feloniously and maliciously shoot, wound and shoot with a pistol * * * causing bodily injury to said B. J. Atwood with intent, * * * to maim, disable, disfigure and kill, * * *.' Under this indictment the defendant could have been found guilty of any felony or misdemeanor substantially charged therein, namely, (1) malicious wounding with intent to maim, disable, disfigure or kill; (2) unlawful wounding with such intent; or (3) assault and battery. Williams v. Commonwealth, 153 Va. 987, 992, 151 S.E. 151; Crutchfield v. Commonwealth, 187 Va. 291, 293, 46 S.E.2d 340.

The jury returned this verdict as amended in open court: 'We the Jury find the defendant Jack Banner guilty of unlawful maming (sic) and fix punishable (sic) by confinement in the penitentiary for a period of five years.'

A motion to set aside the verdict was overruled and the defendant was sentenced in accordance with the verdict. We granted him a writ of error.

The evidence of the Commonwealth and that of the defendant is in hopeless conflict. The sufficiency of the Commonwealth's evidence is not questioned and, under familiar principles, it will be summarized in the light most favorable to the Commonwealth.

On May 27, 1961, at about 11:30 p.m., State Trooper B. J. Atwood and Silas Hay, Deputy Sheriff of Dickenson county, were patrolling Route No. 80 in Dickenson county when they met a Chevrolet sedan traveling in the opposite direction. This automobile was approximately two feet across the white line and it crowded the police car onto the shoulder of the road. Atwood immediately made a U-turn to follow the vehicle which was proceeding about 25 to 30 miles per hour. He had just caught up with this car when the driver of it 'suddenly slammed' on his brakes and pulled the front part of the vehicle onto the shoulder leaving the rear end on the hard surface. Atwood and Hay both got out of their car and walked up to the stopped automobile, which was operated by Claude Rickman. Seated beside him was Mrs. Rickman, his wife. The rear seat was occupied by the defendant, owner of the car, and Mrs. Alma Cline.

Trooper Atwood asked Rickman to exhibit his operator's license and the registration card for the vehicle. Banner, the defendant, who was seated behind the driver, 'stuck' a Russell county deputy sheriff's badge out of the front window. Rickman handed Atwood his operator's license and Atwood inquired of him why he stopped so suddenly. The defendant then asked: 'What the Hell do you fellows want?' and Atwood replied that it was a routine check and again asked Rickman the reason for the sudden stop. The defendant then stated: 'Them God Damn Fellows ain't pulling nothing over on me' and he started to alight from the opposite side of the car. Atwood returned the operator's license to Rickman and proceeded to the rear of the car. There Hay informed him that the man who occupied the back seat was Jack Banner, a deputy sheriff of Russell county. Atwood requested the defendant, who was standing nearby, to 'Step back here,' but he refused. Hay said to Atwood: 'Watch him, [defendant] he has got a gun in his hand.' Atwood then walked up to the defendant, who had a gun partially concealed behind his coat, and told him to surrender his gun but the defendant refused. According to Atwood, the defendant was weaving and had a strong odor of alcohol on his breath. As they stood there Atwood said 'You are drunk. You are under arrest.' 'Give me your gun.' The defendant cursed Atwood and again refused to surrender the gun. Then Mrs. Cline begged Banner to 'get back in the car' and also requested Atwood for permission for them to take him home, which was refused.

Atwood again asked for the gun and Rickman and Hay made the same request without success. Banner backed up against the rear fender of the car with the gun in his hand 'waving it back and forth.' As Atwood reached for the gun Banner hit him in the chest with it. When Atwood turned from the blow Banner 'fired' striking him in the left side. He shoved Banner away and drew his own gun from the holster. The two men, facing each other at a short distance, opened fire. Atwood shot six times and the defendant fired four shots. In addition to being hit in the side Atwood was shot in the right thigh. During the exchange of shots the defendant went backwards over a bank by the side of the road.

After Atwood called his headquarters for assistance and had reloaded his gun the defendant as directed came up the bank with his 'hands up.' Hay took the defendant's gun. The defendant had been shot four times. Atwood and Hay drove him to Prater where State Trooper Douty met them and drove the defendant to the Grundy hospital for treatment of his severe injuries.

Silas Hay corroborated Atwood's testimony in all material respects. He testified that Banner refused to submit to arrest, fired the first shot, and was intoxicated and abusive. Hay claimed that he fired three shots at the defendant after the defendant had fired the first shot at Atwood. Trooper Douty also testified that he smelled something 'intoxicating' on Banner's breath.

The defendant's evidence was that Claude Rickman, the driver of the car, had pulled off the road because the accelerator was stuck. They had not seen the police car. The defendant was not intoxicated and had drunk not more than one glass of beer that night. Trooper Atwood ordered everyone out of the car by merely stating 'unload.' He did not arrest the defendant and he shot him for no reason. The defendant claimed he drew his gun and fired only after Atwood first shot him. None of the other passengers in Banner's automobile saw the defendant fire his gun and they said that Hay did not shoot but merely kept Rickman covered on the opposite side of the car.

The first assignment of error challenges the validity of the jury verdict. The defendant contends that it is fatally defective and that no valid judgment can be entered thereon. With this contention we agree.

Lane v. Commonwealth, 190 Va. 58, 55 S.E.2d 450, is controlling of this issue. In that case Lane was indicted under the Maiming Act, § 4402, Code 1942 (now § 18.1-65). The jury returned a verdict which read:

''We, the jury, find the defendant Barron Lane guilty of unlawful wounding and fix his punishment at three (3) years in the State Penitentiary.' (Italics added).' 190 Va. at p. 63.

The trial court set this verdict aside and a new trial was awarded the defendant. At the second trial the jury found him guilty of 'unlawfully wounding Archer G. Tate, with intent to maim, disfigure, disable or kill * * *.' His punishment was fixed at 3 years in the penitentiary. On appeal from the judgment entered on this verdict one of the errors assigned involved the effect of the verdict rendered in the first trial. We said:

'In this case the jury, on the first trial, found the defendant guilty of 'unlawful wounding,' merely. The verdict failed to name the person wounded, to recite that the wounding was done 'with intent to maim,' etc., or to state that it was committed 'as charged in the indictment.' It was not a complete finding in due form upon the issue presented and was silent on some of the material elements of the offense charged. It was fatally defective, and no valid judgment of the court could have been rendered upon it. 190 Va. at p. 66.

* * *

'Here the first clause of the verdict found Lane guilty of an alleged offense not embraced in the statute under which he was being tried; the second clause fixed his punishment as though he had been found guilty of a felony. The fact that the jurors used the word 'unlawful' instead of the word 'malicious' clearly indicates that they found him not guilty of malicious intent. These considerations show that the jury intended to find the defendant guilty of unlawful assault, with intent to maim, etc., and to acquit him of the charge of malicious assault. It is equally clear that they did not find him guilty of a misdemeanor. We, therefore, hold that the trial court did not err in overruling the defendant's plea of former jeopardy and in allowing him to be tried upon the charge of unlawful assault, with intent to maim, etc.' 190 Va. at p. 69.

In the case at bar the verdict found the defendant guilty of unlawful maiming. We have held that 'unlawful wounding,' 'unlawful shooting' and 'unlawful stabbing' standing alone are not crimes embraced under § 18.1-65. Lane v. Commonwealth, supra, 190 Va. at p. 68. Unlawful maiming takes the same status. Here, as in those instances, the verdict failed to recite that the wounding was done with the requisite 'intent to maim, disfigure, disable, or kill' or to state that it was committed 'as charged in the indictment.' The failure to name the person wounded in the verdict was not of itself fatal (Hoback v. The Commonwealth, 28 Gratt. (69 Va.) 922, 929), but the failure to recite the requisite intent to maim, etc. or to state 'as charged in the indictment' rendered the verdict and the judgment entered thereon a nullity.

The use of the word 'unlawful' rather than 'malicious' in the verdict clearly shows that the defendant was acquitted of malicious wounding with intent to maim, etc. The attempted conviction of unlawful wounding necessarily manifests an acquittal of malicious wounding. The...