Bryan v. Commonwealth

• Citation: 109 S.E. 477
• Court: Supreme Court of Virginia
• Decision Date: 17 November 1921
• Parties: BRYAN. v. COMMONWEALTH.

109 S.E. 477

BRYAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov 17, 1921.

Error to Circuit Court, Botetourt County.

E. B. Bryan was convicted of murder in the second degree, and he brings error. Affirmed.

Haden & Haden, of Fincastle, and Wm. R. Allen, of Buchanan, for plaintiff in error.

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

KELLY, P. This case is here upon a writ of error to a judgment of the circuit court of Botetourt county, sentencing the defendant, E. B. Bryan, to a term of 20 years in the penitentiary upon a conviction of murder in the second degree.

About noon of the 28th day of October, 1920, Bryan walked into the office of the Virginia Western Power Company in the town of Buchanan, and, practically without warning, shot to death W. P. Headrick, an electrician employed by that company.

The evidence produced by the commonwealth, standing alone, makes a case of murder in the first degree. The defense relied upon is that the act was committed in the heat of passion, engendered a few minutes prior to the killing by a confession made to the defendant by his wife of an illicit intimacy between her and the deceased. The testimony tending to support this defense may be stated in abbreviated form, but with substantial accuracy and completeness, as follows:

The defendant and his wife had been married for 25 years. Their children were grown and away from home. The defendant was 45 and his wife 42 years of age. They lived in is second floor apartment over a restaurant in Buchanan. The night before the killing, while the defendant's wife was on a visit to her father's home in the country, he found certain letters in her room which aroused his suspicion, and which, upon some further investigation, he concluded were probably written by the deceased. He says he was greatly troubled and worried by this discovery, and spent a sleepless and miserablenight. The next morning he hired a car, went to see his wife, and asked her about the letters. She said she would go back home with him, and, after arriving there, would tell him all about them. They returned together, went immediately to their room, and, according to the testimony of both of them, they sat together on the side of the bed, with their arms around each other, while she related to him all the details of an illicit relationship and intercourse, seductively brought about by the deceased, which had existed between her and him for some weeks. The particulars of her confession may be omitted. Suffice it to say that, if the jury believed that the confession, as testified to by both of them, was made, that the defendant was actuated by no other and independent grievance against the deceased, and that the natural and normal effect of such a confession by the wife to the husband was not affected by any previous similar misconduct on the part of his wife, and known to him, then the jury would have been entirely warranted in finding (as no doubt they would have found) that he gave way to rage and indignation, caused by the confession, and killed the deceased in hot blood. The confession included the statement that the deceased had first secured complete control over the sexual passions of the defendant's wife by the surreptitious use of a certain drug, administered in wine, and that thereafter she had been wholly unable to resist him. They both testified that during the confession the defendant made only one remark, and that was, "Did he do that, darling?" and that her reply was, "He did." The commonwealth produced rebuttal evidence which will be mentioned later.

At the conclusion of this interview with his wife, the defendant immediately got his pistol, walked through the kitchen, which was on his way out, picked up in that room an electric flatiron, or smoothing iron, which he had bought from the deceased and which will be mentioned again later, and, with the pistol in his right hand, and the iron in his left, went out on the street in search of Headrick. The distance from Bryan's house to Headrick's office was about 125 yards, and he went almost immediately there, entering a drug store on the way to inquire about Headrick, saying that he was "going to kill his damn soul, " and also telling Dr. C. W. Barker on the way, in answer to a question as to what ho was going to do, that he was "going to kill the damned s——of a b——." On en-entering the Virginia Western Power Company's office, he saw Headrick sitting at a desk inside of a compartment or pen surrounded by a railing, and thereupon he pitch ed the electric iron into the compartment and opened fire on Headrick, saying at the same time "God damn you, I will kill you." He fired three shots, the first two failing to take effect, the third entering Headrick's temple and producing death a few hours thereafter.

The first assignment of error complains of the action of the trial court in refusing to set aside the verdict of the jury as being contrary to the evidence. We are unable to say that the court erred in this respect. Every homicide is prima facie murder in the second degree, and the burden was upon the defendant to establish to the satisfaction of the jury any justification or excuse relied upon by him. Minor's Syn. Crim. Law, p. 57, and cases cited. The effect of the verdict in tills case was to determine: (1) That the commonwealth did not successfully carry the burden of proof resting upon it to raise the grade of the offense to murder in the first degree by showing that the killing was "willful, deliberate and premeditated" (Code, § 4393); and (2) that the defendant failed to successfully carry the burden of showing that the killing was without malice on his part, and therefore a lesser crime than murder in the second degree. The law presumes malice from the fact of the killing, but it does not presume that the act was willful, deliberate, and premeditated. The sufficiency of the evidence on the one hand to establish the willful, deliberate and premeditated character of the act, or, on the other, to rebut the presumption of malice, is generally a question which lies peculiarly within the province of the jury. In this case the trial court, by refusing to interfere with the verdict, held, in effect, that the evidence was such as to warrant the jury in finding that the defendant had failed to successfully rebut the legal presumption against him as to the grade of his crime. In this finding we concur.

The books abound in cases in which convictions of even first degree murder have been sustained when the killing followed the alleged provocation more quickly than in the present case. If the evidence disclosed no circumstance at all to discredit the defendant's claim that he acted solely under the propulsion of hot blood and frenzy, engendered by his wife's confession, it is, to say the least, not at all certain that the court would not have improperly invaded the province of the jury if it had set aside the verdict as being insufficient to show that the killing was malicious. That was for the jury to decide. Shepherd v. Commonwealth, 119 Ky. 931, S5 S. W. 191, cited with approval in Shipp v. Commonwealth, 124 Ky. 643, 99 S. W. 945, 10 L. R. A. (N. S.) 335, 339.

Moreover, there were, as a matter of fact, certain circumstances in the case, as shown by the evidence, entirely proper for the consideration of the jury, and which may have influenced them in attaching less weight to the effect of the confession than was claimedfor it by the defendant. These circumstances will now be mentioned.

The alleged letters from Headrick to defendant's wife were not produced at the trial. He claimed that they had been lost, but his testimony as to their contents and as to their loss was vague and unsatisfactory. As they were alleged by him to be the beginning and basis of his original suspicion and subsequent anger, they would naturally be regarded as of much importance, and it is not entirely easy to understand the uncertainty of the testimony with respect to them.

With reference to his own account before the jury as to the details of his wife's confession, while that account is corroborative of and harmonious with practically all that his wife had previously testified to in his presence, it can hardly be characterized as a connected and convincing narrative. Due allowance must be made for the effect which the jury may have given to his manner and bearing on the stand.

Some importance may have properly been attached by the jury to the fact that the defendant carried the electric iron along and pitched in into the office by the side of the deceased before opening fire upon him. There was evidence tending to show that the iron had not been paid for; that the defendant had received one or more bills for it; that there had been some misunderstanding on the part of the bookkeeping department of the Virginia Western Power Company as to the terms upon which he was to make payment therefor; and that this misunderstanding had subsequently been the subject of an interview between him and the deceased, resulting in what seems to have been a satisfactory adjustment of the matter. The transaction and its incidents were gone into very fully in the testimony on both sides, and the jury and the trial judge were in much better position than we are to estimate the bearing of these incidents on the mental attitude of the defendant toward the deceased. We are frank to say that, as the evidence appears in type, we see nothing in the account of what had passed between the defendant and the deceased to indicate bad feeling on account of the purchase of the iron; but when the defendant undertook to explain why he had carried it with him when he started out to wreck vengeance on the deceased, his testimony is not satisfactory. Upon this latter point he was asked the following question and gave the following answer:

"Q. Now, why was it that on the...