Blankenship v. Com., 3951

• Decision Date: 21 April 1952
• Docket Number: No. 3951,3951
• Citation: 70 S.E.2d 335,193 Va. 587
• Parties: GLADYS BLANKENSHIP v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 335

70 S.E.2d 335

193 Va. 587

GLADYS BLANKENSHIP v. COMMONWEALTH OF VIRGINIA.

Record No. 3951.

Supreme Court of Appeals of Virginia

April 21, 1952.

J. Livingstone Dillow, for the plaintiff in error.

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

JUDGE: SPRATLEY

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

Gladys Blankenship was indicted for the murder of her husband, Drewey Blankenship, tried by a jury, and convicted of involuntary manslaughter. Her punishment was fixed at one year in the penitentiary.

These are the pertinent facts and circumstances attendant upon the homicide.

Mrs. Blankenship, 38 years of age, was married to the deceased about 16 years before his death. They had lived together since their marriage and seven children, ranging in age to 15 years, had been born to them. In the month following his death, she gave birth to an eighth child.

In response to calls from the children of the couple, Doctor E. S. Carr and a police sergeant went to the Blankenship home early in the morning of the day the deceased was shot. They found the defendant lying across a bed with her arms around her wounded husband. She was rather hysterical and crying. She told Dr. Carr and the police officer that she had gotten up from her bed that morning, had gone to a toilet near the rear of the house, and, upon her return, had seen a strange man running off the back porch and found her husband shot.

Drewey Blankenship had received a bullet wound in the back of his head, had bled profusely, and was unconscious. He was removed to a hospital, where he died several hours later. The police sergeant, assisted by other officers, said he searched the home from top to bottom in an effort to find the lethal weapon; but found none and gave up the search. Later the same day, after the death of Blankenship, the defendant was arrested and lodged in the county jail on a charge of murder. On the next day the sergeant of police received word from the defendant that she wanted to talk with him. She requested that he bring with him the pastor of her church.

The police sergeant and her pastor went to the jail. They found defendant somewhat hysterical. She told them she wanted to tell the truth; that what she had said previously about seeing a strange man running from her home was not true; that she had seen no such person; and that if they would return to her home and look in a garbage can in the rear hall near the kitchen they would find the pistol beneath some potato peelings, where she had placed it. According to her statement, she and her husband had gone to bed about ten o'clock the night before, she suddenly awoke at an early hour the next morning, found her husband's pistol lying across or near her hand, and saw that her husband had been shot. Frightened she placed the pistol in the garbage can.

In explanation of her reason for telling a different story the day before, she said she was so scared that she did not know what to do, and did not want her young children to think that she had shot their father. After she had hidden the pistol, she awakened her children, told them that their father had been shot and asked them to call the neighbors for help. She told the children that she was asleep, and had no recollection of anything that may have happened, and that if she shot the deceased, she shot him in her sleep.

Upon her trial, Mrs. Blankenship testified that she and her husband were a loving and devoted couple, and that there had never been any kind of trouble between them; that her husband owned a pistol which he usually kept hanging on a nail on the wall in the bedroom; and that sometimes he put the pistol in a locker and at other times slept with it under his pillow. She repeated the same account of the shooting made by her to the sergeant of police and her pastor on the day after her arrest, saying that she had no reason to shoot or kill her husband. She added that he was good to her always and provided for her well. She said she did not know whether or not he carried any life insurance.

A number of witnesses, relatives of the deceased and neighbors of the couple, testified to the effect that the couple had been living happily for many years in complete harmony, and that the defendant bore a good reputation for truth and veracity.

Dr. G. B. Arnold, a practitioner of medicine, who specialized in psychiatry, testified that, based on the facts related to him, he was of opinion that it was not only possible but probable that the defendant was asleep and unconscious when the gun was fired against the head of the deceased. He thought that the false story first told by the defendant was brought on by a fear psychosis, and was natural under the circumstances.

There was some evidence that two days before the homicide, the deceased had made a statement in the presence of his wife that 'Well, if anything happens to me there is sufficient insurance to take care of Gladys and the kids. ' But the witnesses who heard that statement were unable to say that it was heard by the defendant. It was shown that deceased carried insurance policies with benefits amounting to $6,328, and that action had been brought by the defendant and her children to recover thereon.

The Commonwealth asked for a conviction of murder in the first degree. The defendant contended that the evidence was wholly insufficient to show that she was guilty of any offense whatever.

The trial court, over the objection of the defendant, gave the jury an instruction which defined murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter, and assault and battery, and told them that the defendant could be convicted of any one of said offenses, if they believed from the evidence, beyond all reasonable doubt, that she was guilty of such offense.

Defendant's objections were based upon the grounds that there was no evidence tending to prove voluntary manslaughter, involuntary manslaughter, or assault and battery, and that the instruction was confusing and misleading in that it invited the jury to return a compromise verdict.

The guilt or innocence of the defendant as to any grade of the offense charged was dependent upon the inferences which the jury was entitled to draw reasonably from the established facts and circumstances. The record shows no outward evidence of motive, malice, or ill will, actual or implied, on the part of the defendant. While she undertook to prove that the killing was done accidentally in her sleep, she neither denied nor admitted that she fired the fatal shot. She did not say whether she heard the sound of the pistol shot fired by her own hand. Notwithstanding friendly relations with her husband, she concocted a story of the shooting contrary to the truth. She cunningly undertook to hide the pistol with which the fatal shot was fired. She gave fear as the reason for her false statement and the concealment of the deadly weapon.

In appraising defendant's testimony and the circumstances shown, the jury had the right to give due effect to the manner and bearing of the defendant on the stand. They obviously thought that her story was not in harmony with the circumstances. It was difficult to believe that she could have slept without hearing the shot of the pistol fired by her own hand. If her final story of the shooting was true, it was not entirely easy to understand why she did...