Barber v. Com.

• Decision Date: 14 June 1965
• Citation: Barber v. Com., 142 S.E.2d 484, 206 Va. 241 (1965)
• Parties: William Leon BARBER, Sr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 484

142 S.E.2d 484

206 Va. 241

William Leon BARBER, Sr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 14, 1965.

Donald Grant Wise, Portsmouth (Horace L. Wise, Wise, Wise & Wise, Portsmouth, on brief), for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

CARRICO, Justice.

William Leon Barber, Sr., the defendant, was indicted by the grand jury for the murder of his wife, Sadie P. Barber. A plea of not guilty was entered and a trial by jury was held. The defendant was convicted of murder in the first degree and his punishment was fixed at confinement in the penitentiary for life. The trial court approved the verdict and sentenced the defendant to the penalty fixed by the jury. The defendant was granted a writ of error.

On November 21, 1960, the police department of Norfolk County received a telephone message that Sadie Barber was missing. On the following day, the defendant appeared at police headquarters and filled out a 'missing persons' report.

On December 5, 1960, W. A. Caudle, a deputy sheriff of Dinwiddie County, received information that a body had been discovered in his county. He drove to the location and found the body covered by brush and leaves, lying in a wooded area near a dirt road one hundred feet from the public highway. The body was that of a woman, dressed in a nightgown. The deceased woman was lying on her back with her hands tied. The county medical examiner was called and the body was removed to the state medical laboratory in Richmond.

The description of the woman's body fitted that of Sadie Barber. The police attempted to contact the defendant, without success. Later, the defendant telephoned police headquarters to inquire about the 'missing persons' report and was then advised of the discovery of the body in Dinwiddie County.

Accompanied by his son-in-law and several police officers, the defendant went to the medical laboratory in Richmond. When he was taken to view the body, he gave it a cursory glance from a distance of several feet and said 'that's Sadie all right.' He stated that he 'didn't know why anybody would kill Sadie.'

According to the testimony of the Chief Medical Examiner of the Commonwealth, the body was in a state of 'considerable decomposition * * * not in any wise due to weather conditions.' Two .22 caliber bullets were found in the back of the head, one of which had penetrated and 'almost completely destroyed' the left cerebellum. The other bullet had lodged near the vertex of the head but had not penetrated the skull. There was a laceration above the left ear three and one-half inches in length and a laceration on the back of the head two and one-half inches long. In addition, there were other lacerations about the head.

In the opinion of the Chief Medical Examiner, the bullet wound in the left cerebellum was the cause of death. The Examiner was unable to find any powder burns about the body and he expressed the opinion that the muzzle of the death weapon 'had to be in excess of three feet from the head of Sadie Barber when the shots were fired.'

The defendant was questioned by J. Arthur Hodges, Sheriff of Norfolk County, and members of the Norfolk County Police Department. An examination of the defendant's automobile revealed a substance in the trunk 'appearing to be blood.' The defendant agreed to leave the vehicle with the police so that an analysis could be made of the substance.

The car was parked in front of police headquarters with its doors locked, the police taking possession of the keys. The next morning, on December 7, it was discovered that the automobile had been removed from its location in front of the police department. The defendant could not be found. An alarm was broadcast and the next day a state trooper apprehended the defendant driving the vehicle which had been removed from police headquarters.

An examination of the defendant's home revealed a substance on a television set, a wall and a picture which, upon analysis, proved to be human blood.

The defendant was again questioned by Sheriff Hodges and the police on December 8. He requested an opportunity to talk with his attorneys and, in response to his telephone call, two attorneys appeared at police headquarters and discussed the case with him for approximately an hour.

The defendant then notified Sheriff Hodges that he was prepared to make a statement. He informed the sheriff that he had told his attorneys the truth and said, 'I killed her.' The sheriff advised the defendant of his right to counsel and warned him that 'if he said anything it could be used for or against him.'

The defendant's statement, as shown by the testimony of Sheriff Hodges, was a follows:

'Mr. Barber stated that he and Sadie Barber were at their home on the morning of November 21, 1960. Mrs. Barber came at Mr. Barber with a kitchen knife which he took from her and hid. She then procured an iron bar and attacked him and he wrestled the instrument from her hands. She then obtained a gun from the bedroom and pointed the gun at him and pulled the trigger but the gun failed to fire. He said he took the gun from her and laid it down on a table. She then said, 'You son-of-a-bitch, I'm going to kill you'; grabbed the gun and the defendant and Mrs. Barber began to wrestle. It was while they were wrestling that the gun discharged. Mrs. Barber then stated that she was going to call the police. Mr. Barber said that the two bullets 'didn't faze her.' She walked over to the telephone and said she was going to call the police and he pulled the iron bar from his hip pocket and struck her on the head several times. This bar was the same one he had taken from her earlier. He said she fell on the couch and rolled off on the floor; that he attempted to help her while she told him how much she loved him. He obtained water for her and after drinking the water she died. Mr. Barber further stated to Sheriff Hodges and the officers that he took Sadie Barber's body into the junk room of their residence and wrapped her head in plastic bags to keep the blood off the floor. Mr. Barber then said that he took some string and tied her arms so they wouldn't flop around. Mr. Barber said that he took Mrs. Barber by the legs like you would 'pull a damned hog' and pulled her to the utility room. Mr. Barber said he left Sadie's body in this room until about 3:30 a. m. of November 22 when he placed it in the trunk of his car and parked the car in front of their house. The same morning he went to the Naval Hospital for treatment during which time he left Sadie's body in the car trunk. After treatment at the Portsmouth Naval Hospital, he visited a friend in Norfolk and, about 5 p. m. on November 23, he drove his car to Dinwiddie County where he drove up a dirt road, removed the body, put some leaves on it and returned to his home in Norfolk County. He stated he had taken the body to Dinwiddie County so no one would think he had killed her.'

A warrant of arrest was then secured for the defendant, charging him with the murder of his wife. On December 16, 1960, the Circuit Court of Norfolk County committed the defendant to Southwestern State Hospital at Marion for 'determination of his mental condition.'

On December 30, the defendant's attorneys notified the court that they were withdrawing from the case and requested that the court appoint counsel for the defendant. Accordingly, Gordon F. Marsh and Donald H. Sandie were appointed counsel for the defendant and they represented him until the termination of the proceedings in the trial court.

On January 3, 1961, the grand jury returned its indictment against the defendant, charging him with the murder of Sadie P. Barber.

On May 29, 1961, Southwestern State Hospital reported to the court on the defendant's condition and on June 16, 1961, an order was entered directing the defendant's return to Norfolk County for trial. The trial took place on August 3, 1961.

Following the defendant's conviction, Mr. Marsh and Mr. Sandie withdrew from further participation in the case and Horace L. Wise was appointed as the defendant's counsel. He has ably represented the defendant on this appeal.

The defendant has made six assignments of error to the actions of the trial court. They will be discussed in the order assigned.

The defendant first contends that the trial court erred in trying him on the indictment returned by the grand jury. He says that the indictment 'was fundamentally defective in that it failed to state that the defendant murdered the deceased 'with malice aforethought', or that any malice was involved whatsoever.'

The indictment charged that the defendant 'on the 21 day of November, in the year 1960, in the said County of Norfolk, feloniously did kill and murder one said Sadie P. Barber, against the peace and dignity of the Commonwealth.'

The defendant relies upon the decision in the case of The Commonwealth v. Levi Gibson, 2 Va.Cas. (4 Va.) 70, 74, where it was said:

'The Court is further of opinion, that in Indictments for murder, it is necessary to aver that the person indicted, 'of his malice aforethought' killed and murdered the deceased.'

But the Gibson case was decided in 1817, long before the legislature, in 1930, enacted Code, § 19.1-166 in its present form. That Code section provides for a short form of indictment in murder cases. The indictment before us precisely follows the statutory short form.

The form of indictment provided for in Code, § 19.1-166 'is deemed sufficient as an indictment for murder,' Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296, and 'this court has consistently held that an indictment charging murder is sufficient to sustain a conviction of murder in the first degree.' Hurd v. Commonwealth, 159 Va. 880, 884, 165 S.E. 536, 538.

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