Byrd v. Commonwealth

• Decision Date: 16 June 1932
• Citation: 164 S.E. 400
• Court: Virginia Supreme Court
• Parties: BYRD. v. COMMONWEALTH.

164 S.E. 400

BYRD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 16, 1932.

Error to Circuit Court, Accomack County. Preston Byrd was convicted of malicious shooting, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., ana HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

J. Harry Rew, of Parksley, and Ernest Ruediger, of Onley, for plaintiff in error.

John R. Saunders, Atty. Gen., and Edwin H. Gibson and Collins Denny, Jr., Asst. Attys. Gen., for the Commonwealth.

HOLT, J.

Preston Byrd has been convicted of malicious shooting and sentenced to two years and six months' confinement in the penitentiary. The evidence establishes, or tends strongly to establish, the following facts--certainly it is sufficient to sustain a verdict which depends upon them for support:

Byrd, a married man with a wife and three children, is a citizen of Accomack county and lives in the village of Makemie Park. On an unnamed Sunday morning in January, 1931, he drove from his home into the country and did not return until after supper, or about 6:30 in the evening. In the afternoon Mrs. Byrd, possibly and with some show of reason jealous, went to look for him in company with Sarah Marshall, Grace Bloxom, a daughter of John Bloxom, and with three young men in their car. Before starting out, she placed her children in Susan Hosier's home. They in a short time went over to the home of John Bloxom. All of these people were village neighbors. Byrd came back to Makemie Park before his wife's return, found no one at home, and went to look for his children. He claims to have heard them crying in the Bloxom house. At any rate, he went there, inquired as to the whereabouts of his wife, and asked for them. They were delivered to him, but the Bloxoms could not tell him where his wife was. Her absence seemed to anger him, and with an oath he said, "I'll kill her just as soon as I see her." He then went back to his home and in senseless fury broke up his own furniture, armed himself with a repeating shotgun, and returned to the Bloxom home. In the meantime John Bloxom, alarmed by the threat which Byrd had made, telephoned to Mrs. Byrd's father, George Richardson, telling him of the situation and of his anxiety as to what might happen. Byrd reached John Bloxom's home about the time of the return of the party which had gone to look for him. Mrs. Byrd was not with them, for she, knowing nothing of the trouble, had gone to the Hosier home for her children. They, as we have seen, were not there, and so she set out for John Bloxom's. As she approached the house she became alarmed by the excitement occasioned by the appearance of her husband with a shotgun, ran into the garage, and later into that residence and hid. It was about this time that Byrd ordered the occupants of the automobile out. He then shot at that car striking it in front of the driver's seat and tearing a large hole in the body. A short time thereafter John Bloxom, who had been to his uncle's home to telephone to Mrs. Byrd's father, returned to his own home, found everybody excited and that Byrd had shot up the automobile. In such circumstances anything seemed possible, and so he also armed himself with a shotgun.

Meanwhile Richardson, the father-in-law, had called up G. E. Bunting, constable, who came in answer to that summons. When he reached the Bloxom home he found everything in confusion; that Byrd had shot up the automobile, had threatened to kill his wife, and was still armed with a shotgun; whereupon he summoned Bloxom to aid him in his arrest. Byrd seems then to have disappeared and they believed that he had returned to his own house. To it they went but did not find him. They did find several chairs broken into bits, a refrigerator turned over, and the children locked in and crying. This constable then ordered Bloxom to take the children to his home. While Bloxom was doing this and while the constable was locking the door to the Byrd home, they heard the crash of breaking glass in the Bloxom home, a window of which Byrd had knocked out with his gun. Bloxom and the constable hastened back and saw him run from the porch. Bloxom followed him across the land of John Fletcher while the constable went up the road to intercept him. Bloxom, in an attempt to halt the accused, fired in the air. Byrd then shot at Bloxom, striking him in the face, after which he hid his gun, made off, went to Pennsylvania, and through extradition proceedings was brought back from that state to Virginia for trial.

The issues presented are thus stated in the petition for a writ of error:

"It will appear from the above, as well as a perusal of the evidence, that there are two questions before the court for decision in this case, to-wit:

"1st. Whether or not the said Preston Byrd shot at said John Bloxom while the said Bloxom was a trespasser, or was acting as an officer of the law under Constable Bunting; in other words, was there any malice shown on the part of the said Preston Byrd for the jury to bring in a verdict as it did; and

"2nd. If the said John Bloxom was acting under proper authority, did Preston Byrd, the defendant, know or was it made known to him that the said John Bloxom was acting as an officer of the law at the time the said Preston Byrd shot the said John Bloxom."

The constable had no warrant; there wa3 not time in which to secure one, for the situation was too pregnant with the possibilities of tragedy to admit of delay.

When an officer has a warrant directing an arrest, he has the power to call others to his assistance in its execution (Randolph v. Commonwealth, 145 Va. 883, 134 S. E. 544, 47 A. L. R. 1084; 61 Am. Dec., note 154; 1 Bish. Crim. Proc. [4th Ed.] § 185), and if the arrest be...