Brown v. Commonwealth

Decision Date29 June 1921
Citation107 S.E. 809
CourtVirginia Supreme Court
PartiesBROWN v. COMMONWEALTH.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Principal.]

Error to Corporation Court of Norfolk.

Flynn Brown was convicted under two indictments of unlawfully, maliciously, and feloniously shooting another, with intent to maim, disfigure, disable, and kill him, and of simple assault, and he brings error. Affirmed.

William McK. Woodhouse, of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., and J. D. Hank, Jr., and Leon M. Bazile, Asst. Attys. Gen., for the Commonwealth.

KELLY, P. Flynn Brown was indicted and tried under two indictments, one charging him with unlawfully, maliciously, and feloniously shooting Leroy White, with intent to maim, disfigure, disable, and kill, and the other charging him with likewise shooting Hampton Taylor. These two charges against him were, by consent, heard together. The jury found him guilty of a felony upon the first indictment, fixing his punishment at confinement in the penitentiary for one year, and also found him guilty of a simple assault upon the second indictment, fixing his punishment at confinement in jail for 30 days. The trial court overruled a motion for a new trial, and sentenced the defendant in accordance with the verdicts.

The sole error assigned is that the verdicts were not supported by the evidence.

The defendant did not do the shooting, but the commonwealth contended below, and contends here, that he was present, aiding and abetting the crime, and that therefore he was guilty as a principal in the second degree.

From the standpoint of the commonwealth, the evidence either showed or materially tended to show the following facts: On the 21st of June, 1920, about 1 o'clock p. m., the defendant, who was intoxicated, went to the house of Leroy White (a house of bad repute) and asked if a certain girl named Lucy was there. An altercation arose between Brown and White, which resulted in White's pushing or throwing Brown out of the door and into the street so violently that he fell to the ground. After getting up he said to White, "When I come back, you will not stay here any longer, " and then went away. Some hours later, and after the defendant had somewhat recovered from his intoxication, "he got to thinking, " as he said, "about how badly White had treated him, and got very hot, " and determined to go back "to get satis faction about the way he was treated, and if he found out that he was in the right, he was going to fight White about it." He left home alone, and on the way to White's house met up with his brother, Moses Brown, and his nephew, James Brown. They asked where he was going, and when he informed them of the occasion and purpose of his mission, they offered to go with him. It does not appear that he was armed, or that he knew his brother was armed, and he had no gun, and said he did not know his brother had one. The party arrived at White's house about 5 o'clock p. m. White was sitting at the window near the door. No one else was in the room except a girl. The defendant looked through the window and said to Moses and James Brown, "There is the s—— of a b——now, " and knocked at the door. White came to the door, and the defendant immediately seized and pulled him into the street. James Brown said. "Punch the s—— of a b—— in the mouth, " and also said, "Kill him, " or "Kill the s—— of a b——;" and Moses Brown fired two shots, one while the defendant had hold of White, which did not take effect on White, but struck Hampton Taylor, an innocent bystander, and one after White had broken away and was going up the stairway in his house. The second shot struck White in the back. Moses Brown then made his escape, going over a fence, which he was assisted in getting over by the defendant, Flynn Brown.

This narrative of occurrences is, in some important particulars, at variance with the testimony on behalf of the defendant, but is fully warranted by that portion of the evidence which the jury evidently accepted as true. It was their province to settle the conflicts in testimony.

We have no difficulty in holding that the jury was justified in finding the defendant guilty as a principal in the second degree.

"A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance." Minor's Synopsis Crim. Law, p. 11. See also Horton's Case, 99 Va. 848, 38 S. E. 184.

"Every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means, countenances or approves the same is, in law, assumed to be an aider and abettor, and is liable as principal." Plaintiff's instruction No. 1 in Daingerfield v. Thompson, 33 Grat. (74 Va.) 130, 148, 36 Am. Rep. 783, approved by this court as the law.

Mere presence when a crime is committed is. of course, not sufficient to render one guilty as an aider or abettor. There must be something to show that the person present, and so charged, in some way procur-ed, or Incited, or encouraged, the act done by the actual perpetrator. Kemp's Case, 80 Va. 443, 450. But whether a person does in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence. In this case, Moses Brown, the acknowledged principal in the first degree, would not have been present at all, but for the fact that he had learned from Flynn Brown of the unlawful mission on which the latter, the real aggressor, was going to the place. They both undoubtedly went there with a common unlawful purpose, for which the defendant was primarily responsible. The fight would have been unlawful, even if he had first sought an explanation, and had attacked White only after satisfying himself that he had been unjustly treated; but his testimony that he only intended to make the attack if he found out he was in the right is discredited by the commonwealth's evidence tending to show that he assaulted White immediately and without asking any questions. Furthermore, the fact that the shooting began, according to the commonwealth's evidence, almost simultaneously with Flynn Brown's assault upon...

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  • Shaikh v. Commonwealth, Record No. 2614-03-4 (VA 1/25/2005)
    • United States
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    • January 25, 2005
    ...in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737, 107 S.E. 809, 811 (1921) (upholding defendant's conviction where, although he did not do the shooting, he "was present, aiding and abetting the ......
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