Bausell v. Commonwealth

• Decision Date: 19 September 1935
• Citation: 181 S.E. 453
• Parties: BAUSELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

181 S.E. 453

BAUSELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 19, 1935.

Error to Circuit Court, Wythe County.

Bernace Bausell was convicted of murder in the first degree, and he brings error. Reversed and remanded.

See, also, 181 S. E. 462.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, CHINN, and EGGLES-TON, JJ.

S. B. Campbell, of Wytheville, Wilson, Burns & Wilson, of Lebanon, and T. F. Walker, of Wytheville, for plaintiff in error.

A. P. Staples, Atty. Gen., and E. H. Gibson, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

Bernace Bausell, son of Henry F. Bau-sell, has been convicted of murder in the first degree and sent to prison for a term of 32 years.

On July 5, 1928, he married Virginia Cornett, the daughter of T. Eugene Cor-nett and his wife, Laura Clarke Cornett. At that time the Cornetts lived in Wythe county, and the Bausells in Bristol. Upon his marriage, Bernace took his wife to his father's home and continued to live there until the summer of 1932, when they went to Lebanon, the old home of the Bausells. They again lived in the same house, the father in one apartment and the son in another.

To this marriage two children were born, Jean and Anne. At the date of the homicide Jean was not quite three years old and Anne not quite one. Conditions at first appeared to have been fairly normal, but Mr. Cornett did not approve of the marriage and afterwards did not approve of the manner in which his daughter was supported by her husband, and told him so.

Virginia left her husband and her Lebanon home early in the summer of 1932, but at his request came back and lived with him for about two months, when she again left him, taking with her the younger child, Anne, and went to her father's home in Wythe county to stay. Jean was taken by her father on several occasions to visit her mother at the Cornett home. On January 7, 1934, the father took Jean again to visit her mother and stayed there until about 9 o'clock at night. The mother asked him to let Jean stay with her for awhile. He was unwilling to let her stay, and Virginia was unwilling to let her go. In this situation it is said that the father made threats to the effect that he was going to have Jean, or kill every one who attempted to prevent him. He and the mother caught hold of the child, and each struggled for its pos session. Mr. Cornett intervened, a fight followed, and Bausell was shot, receiving a flesh wound in his side. Cornett finally threw Bausell to the floor, and sat upon him until a nearby doctor was summoned. This doctor took Bausell to the railroad station at Rural Retreat, and left him there. He went to Bristol and to the hospital for treatment. Thereafter Henry Bausell attempted the role of peacemaker between his son and Virginia, the wife.

On Saturday, January 13, Henry and Bernace Bausell went to the Cornett home, arriving there between 12 and 1 o'clock. Both declared they went for peaceable purposes, but both were armed. The father went in first and talked to Mrs. Clarke, the grandmother of Virginia. She received him in the living room. He repeatedly asked for Virginia, but without avail. He returned to the car in which Bernace had remained and reported the situation to his son. He then took a dress which he had bought for Jean and they both went to the house. In the meantime Mrs. Eugene Cornett had taken her daughter Virginia and her grandchildren upstairs to Virginia's room, and on her way took from her own room a pistol, and gave it to her husband, who was in his daughter's room taking a bath.

Without detailing the evidence, suffice it to say that when father and son came into the house, Virginia, her two children, and Eugene Cornett were in the same room upstairs with the door locked. The accused and his father claim that while they were in the hall upstairs they heard Jean call to her father. Then the door was broken open by the Bausells, or one of them. Bernace Bausell entered and picked up his daughter Jean. Both heard Virginia state to Mr. Cornett, "Daddy, don't shoot." They then for the first time saw Cornett in a corner of the room with a pistol. Virginia stepped in front of her husband; Cornett fired; the Bausells returned the fire, and in the general shooting Virginia and Cornett were killed, and both Bernace and Henry Bausell were struck, but not fatally wounded. The Bausells and Cornetts were people of some prominence. Reports of the shooting were carried in the local papers and widely discussed in that section of the state.

With this background, as might be expected, it was somewhat difficult to obtain a jury free of exception from the county of Wythe. A motion was made fora change of venue. The commonwealth filed an answer to the petition in support of the motion, and on this issue evidence was submitted to the court and the motion overruled. Inasmuch as this evidence is not made a part of the record, we cannot consider this assignment of error.

It appears that the accused was tried and acquitted for the killing of Virginia Cor-nett Bausell. To show somewhat the extent of the feeling against the accused, and the atmosphere in which the jury was selected, we quote the following statement made by N. J. Wright, a justice of the peace: "That one night around the 28th of April, 1934, shortly after Henry F. Bausell and Bernace Bausell were acquitted of the murder of Virginia Cornett Bausell, he (N. J. Wright) was attending a revival meeting at Cripple Creek, at which Rev. Sanders Boyer, of Fries, Grayson county, Virginia, was preaching to an audience of at least a hundred; that during his sermon he stated in effect, if not in exact words, that 'John Dillinger had offered to give himself up if they would try him in Wythe county; that a double murder was committed up here in the upper end of this county. It was as dirty a thing as ever took place and they have acquitted the murderers.'"

With this situation confronting the trial court, it was imperative that it should have taken extraordinary care to secure a fair and impartial jury to try the case.

The record discloses that ten of the veniremen, who were finally accepted by the court, had neither formed nor expressed any opinion as to the guilt or innocence of the accused. The other ten stated, on their voir dire, that they had either expressed or formed an opinion, also stated that they could disregard that opinion and try the accused on the evidence introduced on the trial. Judge Prentis, in dealing with a similar situation in the case of Parsons v. Commonwealth, 138 Va. 764, 773, 121 S. E. 68, 70, said:

"If this talesman, out of his own consciousness and appreciation of the inquiry, had said affirmatively that the opinion which he had previously formed was hypothetical, being only based upon alleged facts, and that it would in no wise interfere with him when he came to hear the evidence from the witnesses as to the actual facts, and that he felt, notwithstanding his opinion, that he could enter upon the service as a juror and disregard his previous opinion and let his deliberations de pend upon the evidence heard in the court room, and that he felt he could give the prisoner a fair and impartial trial notwithstanding the opinion he had previously formed, then he would have been a competent juror. It is observed, however, that these qualifying facts did not emanate from him, but were suggested by the leading, argumentative, and persuasive questions which were addressed to him. All that he did was to assent thereto. We will go far to sustain the trial judges in their effort to select impartial jurors, because their task is frequently difficult, and exceptions are frequently frivolous. Sometimes it is made more difficult than it otherwise would be because the persons summoned desire to evade jury service. In such instances the conscience of the venireman should be probed, and, if, notwithstanding his previous expressions of opinion based upon common rumor, he is nevertheless fair and unprejudiced, he should be accepted as qualified. The true test, however, lies in the mental attitude of the proposed juror, and the proof that he is impartial and fair should come from him, and not be based on his mere assent to persuasive suggestions."

In the case at bar the trial court not only propounded to the jurors leading, argumentative, and persuasive questions, but, in the presence of other prospective jurors, condemned in no uncertain terms several jurors for stating that the opinion held by them was so positive that they could not disregard it and go upon the jury with an impartial and unbiased mind.

In the examination by the court of W. R. Pettigrew, he made the following answers to the questions propounded:

"Q. Have you made up or expressed an opinion as to the guilt or innocence of the defendant?

"A. Yes, sir.

"Q. What did you base that opinion on?

"A. Newspapers.

"Q. Did you hear anybody discuss it?

"A. No, only around town.

"Q. Just general discussion?

"A. Yes, sir.

"Q. Do you know what the parties you heard discuss it knew about the case?

"A. No, sir.

"Q. Don't suppose you talked to the witnesses, those who know something about it?

"A. No, sir.

"Q. You were talking to people who just wanted to talk and landed on the Bausell case to talk?

"A. Yes, sir.

"Q. And do you know whether or not the newspaper had everything exactly correct, or whether the Editor was sworn?

"A. No, I don't know that the Editor was sworn?

"Q. Just read the newspaper?

"A. Yes, sir.

"Q. So you formed an opinion?

"A. Yes, sir.

"Q. If you are accepted as a juror, would you try it from that or the evidence of the case?

"A. It would have to be very different evidence from what I read if my opinion could be changed.

"Q. I just don't quite understand. Do you mean to tell me that you are so constituted that you could not go into this jury box with an open mind and try this case, or are you going to let what you think influence you in this trial?

"A. I don't...