Campbell v. Com.

• Decision Date: 18 January 1960
• Docket Number: No. 5014,5014
• Citation: 201 Va. 507,112 S.E.2d 155
• Parties: GEORGE T. CAMPBELL v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 155

112 S.E.2d 155

201 Va. 507

GEORGE T. CAMPBELL v. COMMONWEALTH OF VIRGINIA.

Record No. 5014.

Supreme Court of Appeals of Virginia

January 18, 1960.

Robert Whitehead and paul Whitehead (Whitehead & Marshall; Paul Whitehead Associates, on brief), for the plaintiff in error.

Frank V. Emmerson, Jr., Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: SNEAD

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

A grand jury of the Circuit Court of Nelson County at the March, 1958, term returned four joint indictments against George T. Campbell, appellant, and his wife, Virginia T. Campbell, resulting from events which occurred on February 24, 1958. Indictment No. 1 contained two counts. The first count charged that they did feloniously, maliciously and unlawfully wound and cause bodily injury to Rhonald Lowe Hayes by striking him on the head with a revolver, with intent to maim, disfigure or kill. The other count charged them with feloniously shooting Hayes with the revolver and with like intent. The commonwealth's attorney elected to prosecute this indictment first, and over the objection of appellant, the trial court sustained the Commonwealth's motion for a separate trial as to Campbell and his wife. On May 7, 1958, a jury found Campbell guilty of the lesser crime of 'common assault' on each count, fixing his punishment under the first count by a fine of $250, and under the second count by a fine of $250 and confinement in jail for twelve months. Campbell's motion to set the verdicts aside and award him a new trial was taken under advisement and on July 31, 1958, it was overruled and judgment was entered in accordance with the verdicts.

Appellant's assignments of error challenge the court's rulings on instructions, the admissibility of certain evidence, and its ruling which permitted the Commonwealth to prosecute him separately on the indictment returned jointly against him and his wife.

The Commonwealth's evidence may be summarized as follows: Rhonald L. Hayes, an investigator employed by the Virginia Alcoholic Beverage Control Board, was engaged in 'undercover' work in the Piney River section of Nelson County on February 24, 1958. He concealed his identity as a law enforcement officer and used the alias of Grady Christian in attempting to make purchases from persons suspected of selling alcoholic beverages in violation of the laws of the Commonwealth. About 9 o'clock that night he and Boyd Lee Tyree, an informer, drove to the residence of George T. Campbell for the purpose of buying whiskey. Tyree went to the front door and Campbell responded to his knock, whereupon Tyree asked him if he had 'anything'. When Campbell was advised by Tyree he had someone with him in the car who was there with him on a previous occasion, Campbell instructed Tyree to invite him in, which was done. Hayes left his gun, badge, billfold and pocket commission in his vehicle and proceeded to the house with Tyree. Upon being admitted, Campbell accused Hayes of being a federal officer, which he denied. He then secured a pistol which was nearby, searched Hayes' pockets for a gun and called Mrs. Campbell, who was in another room, and handed her the pistol with instructions to keep them in the room while he searched their automobile for evidence that they were officers. At her command both of them took seats.

While Campbell was outside Hayes stood up and approached the stove pretending to warm his hands, grabbed for the gun and a scuffle ensued into the adjoining bedroom. Thomas G. Campbell, appellant's half-brother who lived at the home, appeared on the scene and beat Hayes with his fists, but Hayes was successful in seizing the gun from Mrs. Campbell. In the meantime Tyree had left to obtain police assistance. Hayes returned to the living room, advised Mrs. Campbell and Thomas Campbell he was an officer and that they were under arrest. About that time Campbell returned through the front door 'in a great burst of speed' and attacked Hayes. With the assistance of Mrs. Campbell, he seized the gun, causing it to discharge. Mrs. Campbell screamed and withdrew from the attack. Hayes was knocked down on his knees and Campbell beat him on the head with the revolver. In a dazed condition he staggered about two steps and fell back into a chair. After being in the chair for an interval between thirty and sixty seconds with his hand on his head Campbell shot him with the revolver. The bullet penetrated his right wrist and lodged in his neck. According to Hayes, Campbell said just before the shot was fired: 'I ought to kill him, I ought to shoot him.' He also testified only two shots were fired during the evening, but the Commonwealth produced three empty shells found by investigating officers and three pellets from them. Robert M. Zimmers, an FBI agent, stated that all three shells were fired by the pistol in question.

Some of the evidence on behalf of appellant was in sharp conflict with that of the Commonwealth. With regard to the events which occurred at the home, the evidence consisted of the testimony of Campbell, Mrs. Campbell and their son George T. Campbell, Jr., who was eleven years of age. Their testimony may be succinctly stated thus: Campbell returned home in his pick-up truck about 9 p.m. He left the parking lights on so that he could see his way to the house. He answered a knock at the front door and Hayes and Tyree informed him they wanted to see him on some business. They were invited in and offered seats. Campbell excused himself to cut off the lights on his truck. While he was outside Hayes disturbed Campbell's four year old daughter, who was in the living room, by 'pulling her hair' and 'picking at her.' Mrs. Campbell told Hayes to desist, and when he failed to respond she obtained a revolver from the bedroom and ordered him to stop annoying the child. Hayes atempted to take the gun from her and during the struggle he shot her in the arm. While returning to the house, Campbell saw Tyree running and heard the shot fired. When he entered his wife said she had been shot and he found her on the living room floor with Hayes on top of her with a gun in his hand. He 'made a dive' for Hayes and struggled with him. Hayes struck him several times with the pistol. He took the gun from Hayes' possession and struck him several times with it. During the struggle the gun went off twice and Hayes was shot. Campbell said Hayes had the gun when it fired the first time but he did not know who had it when the second shot was fired.

The crucial question involved is whether the acts of appellant constituted a single offense or as charged in the indictment two offenses.

Appellant contends the Commonwealth has divided a series of acts occurring in the same transaction in order that he may be prosecuted twice for the same offense. On the other hand the Commonwealth maintains that count No. 1 in the indictment which charged appellant with felonious wounding by striking Hayes with a pistol and count No. 2 which charged felonious shooting with the revolver are two separate offenses and punishable as such.

Appellant tendered instruction J in support of his theory of the case which the trial court refused. It reads:

'The Court instructs you that even if they believe from the evidence beyond a reasonable doubt that the accused is guilty of beating and shooting Hayes, as charged in the indictment, nevertheless, under the facts disclosed by the evidence, you cannot find him guilty...