Bradshaw v. Commonwealth

• Decision Date: 09 October 1939
• Citation: 4 S.E.2d 752
• Parties: BRADSHAW. v. COMMONWEALTH.
• Court: Virginia Supreme Court

4 S.E.2d 752

BRADSHAW.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 9, 1939.

CAMPBELL, C. J., dissenting.

Error to Circuit Court, Halifax County; N. S. Turnbull, Jr., Judge.

Willie Bradshaw was convicted of murder, and he brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Martin A. Martin, of Danville, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Walter E. Rogers, Sp. Asst. Atty. Gen., for the Commonwealth.

HOLT, Justice.

On the afternoon of December 18, 1938, Willie Bradshaw shot and killed Herbert A. Boelte. At the March term, 1939, of the Circuit Court of Halifax County he was indicted for murder and at that term was tried, convicted and sentenced to death. He has appealed, and his case is now before us on a writ of error.

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

The deceased, together with John Hatcher, another deputy sheriff of that county, and Roger Suddarth, driving in an automobile went to the home of Gladys Buckner, in which Willie Bradshaw had been living for a year and one-half. This car was driven along the old Halifax courthouse road and was halted at a point about seventy-five feet from the Buckner home. The two officers then went to it, leaving Suddarth in charge of the car. These officers wished to interview Bradshaw for some purpose not disclosed by the record and had visited the Buckner home on the preceding day for the same purpose but were then unable to find him. On the ground floor of this cabin home is a small cook room which opens into the main or living room, used also as a bedroom by Gladys Buckner, her son, Elgin, and Bradshaw. When Hatcher knocked at the cook room door, all three of the occupants were at that time in the living room. In response to this bid for admission, Gladys Buckner and her son went into the cook room and invited the officers to come in. After a moment's talk, they, this woman and her son and the officers, went into the main room where they asked for Bradshaw, to which inquiry Gladys answered saying that she had not seen him since the preceding day. In the meantime Bradshaw had gone to the floor above, which was reached by a winding stairway hidden from view by a curtain. The character of this upper cabin story is not shown, but it was unoccupied since all three of these people lived in the room below. When they were told that Bradshaw was not there, Boelte pushed the curtain aside and started upstairs. This is Hatcher's account of the situation at that time:

"Q. I wish you would go a little more in detail about the occurrence in the room when you and Boelte came from the cook room into the big room; Gladys Buckner followed you, is that correct?

"A. That is right.

"Q. And it was there that you asked her where Will Bradshaw was, and she said she hadn't seen him for some time?

"A. That was after we had gotten in the larger room.

"Q. Were you and Boelte standing together?

"A. Practically together.

"Q. Was it at that time that Boelte started up the stairs?

"A. He was walking along at that time.

"Q. And she ordered him not to go up the stairs?

"A. 'Don't go up them stairs.'

"Q. What did Boelte say?

"A. 'Let me alone.'

"Q. Did she immediately turn and get the axe?

"A. Turned into the corner and got the axe.

"Q. Did she get the axe before Boelte started upstairs? "A. No, sir.

"Q. What did you say when she got the axe?

"A. 'Go back. Don't come up on me.'

"Q. What did she say?

"A. She was screaming and hollering.

"Q. What else did you say to her?

"A. Didn't say anything else.

"Q. Did you have a gun drawn on her?

"A. Not directly pointing to her. I had it in my hand.

"Q. Did you tell her to put the axe down?

"A. I told her to go back--not to come up on me.

"Q. And she was hollering and screaming?

"A. Yes, sir.

"Q. And it was at that time Boelte was starting upstairs, and was shot?

"A. Yes, sir."

We do not know if Boelte had a pistol; certainly it was not drawn when he started up the stairway. In a minute or a minute and one-half after he was shot the gun barrel was pushed through the curtain. Hatcher turned and shot at it, but his attention was distracted by the woman. Bradshaw then came through the curtain with his gun drawn upon Hatcher, and with Hatcher thus covered made his escape. He was afterwards arrested in the adjoining county and then had with him the same shotgun, his gun, but, being covered, he was made to drop it, and his arrest followed.

It is not contended on behalf of the accused that he is guiltless, but that in the circumstances under which this homicide was committed, he might properly have been convicted either of murder in the second degree or of voluntary manslaughter. For the Commonwealth it is contended that under the evidence no other verdict than that of murder in the first degree could properly have been returned.

In criminal cases, as in all other cases, instructions should be based upon evidence, and one which in substance told the jury that they might find the accused guilty of involuntary manslaughter, in a case where murder in the first degree was established beyond all doubt by undisputed testimony, would be misleading. No jury should return such a verdict and hold, for example, that the deliberate giving of deadly poison in order to collect insurance was involuntary manslaughter. It is true that in such a case were it to so find, that verdict should be sustained, not because it is a proper verdict but because it amounts to an acquittal of murder in the first degree, and if not sustained the accused would go unpunished. Burton & Conquest v. Commonwealth, 108 Va. 892, 62 S.E. 376; Bell v. Commonwealth, 167 Va. 526, 189 S.E. 441; Little v. Commonwealth, 163 Va. 1020, 175 S.E. 767. It would permit the jury to do that which it had the power to do but not the right, although this power, if exercised, could not be overborne-- not at the instance of the accused, because he would escape all punishment, and not at the instance of the Commonwealth, because it has no right of appeal. In Tucker v. Commonwealth, 159 Va. 1038, 167 S.E. 253, it was held error not to have instructed the jury on the law of manslaughter, but that was a case in which there was some evidence to show palliating circumstances. It there appears that Burton & Conquest v. Commonwealth, supra, was in the mind of the judge who wrote the opinion, for he cites it without suggesting that it was bad law or that there was any intention to overrule it. It was the evidence which made proper an instruction on the law of voluntary manslaughter. Nor is this contrary to anything which was decided in Fleming v. Commonwealth, 170 Va. 636, 196 S.E. 696, 697, for it was there said:

"The most casual consideration of this evidence negatives the statement that the verdict of the jury is contrary to the law and the evidence and without evidence to support it."

Under Code, section 4393, murder by any wilful, deliberate and premeditated killing is murder in the first degree. All other murder is murder of the second degree.

But it is likewise true that every malicious homicide is prima facie murder in the second degree. Bryan v. Commonwealth, 131 Va. 709, 109 S.E. 477.

"The test of murder is malice. Every malicious killing is murder, either in the first or second degree--the former if deliberate and premeditated, and the latter if not. Furthermore, there is a prima facie presumption of malice arising from the mere fact of a homicide, but there is no presumption therefrom of deliberation and premeditation. This is merely another way of stating the familiar rule of law that every homicide is prima facie murder in the second degree, and that the burden is on the accused to reduce, and on the commonwealth to elevate, the grade of the offense. Hill's Case, 2 Grat. (43 Va.) [594] 595; Potts' Case, 113 Va. 732, 73 S.E. 470; Bryan's Case, 13; Va. [709], 109 S.E. 477, 478. This, of course, does not mean that the accused may not rely upon circumstances of extenuation appearing in the evidence produced by the commonwealth with the same effect as if brought out in evidence offered by him." Jacobs v. Commonwealth, 132 Va. 681, 111 S.E. 90, 92.

Objection is made to Instruction No. 4 given to the Commonwealth. It reads:

"The court instructs the jury that to constitute wilful, deliberate and premeditated killing--murder in the first degree-- it is not necessary that the intention should exist for any particular length of time prior to the actual killing, it being only necessary that such intention should come into existence for the first at the time of the killing, or any time previous."

This instruction has been many times approved.

"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's Case, 33 Grat. 880, 74 Va. 880, 893, opinion by Moncure, P.

"There cannot be any doubt, that at Common Law, if one man kills another with a previously formed design to kill, that it is murder, although the design may have been formed only the moment before the fatal act is committed." Whiteford v. Commonwealth, 6 Rand. 721, 27 Va. 721, 722, 18 Am.Dec. 771.

"No time is too short for a wicked man to frame in his mind a scheme to murder." Smith's Trial, page 230.

"If the Defendant has time to think and did intend to kill for a minute, as well as an hour or a day, it is a wilful, deliberate and premeditated killing." Cited with approval in note appended to King v. Commonwealth...