Clinton v. Commonwealth

• Decision Date: 11 January 1934
• Parties: JAMES CLINTON v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1084

161 Va. 1084

JAMES CLINTON v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 11, 1934.

Present, All the Justices.

1. HOMICIDE — Instructions — Homicide of Officer Following an Unlawful Arrest — Heat of Passion — Case at Bar. — In the instant case, a prosecution for homicide, the accused asked the court to tell the jury that if they believed from the evidence in the case that the officer arrested accused without a warrant of arrest, when no misdemeanor was being committed in his presence and there was no reasonable cause to think that a felony had been committed, and in resisting the arrest, accused killed the officer in the heat of passion, then the killing was manslaughter.

Held: That there was no error in rejecting this proffered instruction, as there was nothing to show "heat of passion."

2. HOMICIDE — Instructions — Rejected Instruction — General Statement — Case at Bar. — In the instant case, a prosecution for homicide, the court refused a requested instruction by accused. The instruction was but a general statement and did not touch the issue.

Held: That the court did not err in rejecting this instruction.

3. HOMICIDE — Instructions — Homicide of an Officer Following an Unlawful Arrest — Case at Bar. — In the instant case, a prosecution for murder, accused contended that in no circumstances can malice be implied where the homicide follows an unlawful arrest. An objection to an instruction, that malice aforethought necessary to constitute the crime of murder may be either expressed or implied, was assigned as error. The instruction embodied settled principles of law, and in other instructions the court told the jury that, when the Commonwealth has shown deliverate killing it has made out a case of murder. The accused may reduce the grade of the offense, and justify or excuse it in many ways. He may show, for example, that he was unlawfully arrested, but the burden of doing these things is upon him.

Held: That the court did not err.

4. HOMICIDE — Instructions — Unlawful Arrest — Presumption that Mind of Accused Was Beclouded by Passion — Case at Bar. — In the instant case, the court was asked to tell the jury that in resisting an unlawful arrest, prisoner may rely on the presumption that his mind was beclouded by passion, and the Commonwealth must prove actual malice.

Held: That the court did not err in rejecting this instruction.

5. HOMICIDE — Unlawful Arrest — Killing of Officer. — In cases of homicide a defendant who has been illegally arrested may successfully interpose that defense only when he acts in hot blood induced by the indignity which has been offered him.

6. HOMICIDE — Res Gestae — Conduct of Accused after He Killed Decedent — Case at Bar. — In the instant case, a prosecution for homicide it was alleged by accused that it was improper to admit any evidence of the conduct of the accused after he had killed decedent. As accused ran from the scene of the homicide he shot at others. Evidence to that effect was obtained as part of the res gestae and it showed a purpose on the part of the accused to shoot anyone who might interfere with his escape. There is nothing more intimately connected with a homicide than the things done by the accused instantly in his attempt to escape.

7. HOMICIDE — Presence of Accused during Trial — Case at Bar. — In a prosecution for homicide it was contended on appeal that the prisoner was not present throughout his trial. All the evidence in the case was completed by lunch time. The judge adjourned court and the sheriff took the accused back to jail. During the lunch hour, while the accused was in jail, the court considered the instructions offered by the Commonwealth and the attorney for the accused, and after hearing argument, pro and con, marked on the instructions his notations, either allowing or refusing the instructions. During that time the judge heard all the objections made by the attorney for the accused and passed on the instructions. After lunch the court reconvened, the sheriff brought the prisoner into court and then read to the jury, in the presence of the accused, the instructions that he had decided upon and on which he had made notations.

Held: That the situation did not differ in essentials from that in Hagood Commonwealth, 157 Va. 918, 162 S.E. 10, 601, and for the reasons there stated the objection that the accused was not present throughout his trial was not well taken.

8. HOMICIDE — Instructions — Failure of Accused to Object to the Giving and Refusing of Instructions. — In a prosecution for homicide, where the record failed to show that any exception whatever was taken by the accused to the rulings of the trial court in giving the instructions at the instance of the Commonwealth, or in refusing the instructions asked for by the accused, the judgment of the trial court for murder in the first degree must be affirmed, notwithstanding that the trial court erroneously refused to submit the degree of homicide to the jury.

Error to a judgment of the Circuit Court of Southampton county.

The opinion states the case.

James T. Gillette, for the plaintiff in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

HOLT, J.,¹ delivered the opinion of the court.

In this case the accused stands convicted of first degree murder.

This certificate of fact appears in the record:

"On the morning of the tenth of May, 1932, Vernon Wilson Jones, the deceased, an officer of the town of Franklin, Virginia, found five bags of peanuts about twenty feet from the county road near Franklin cemetery. While Officer Jones was there with the peanuts James Clinton came up and said that the peanuts were left there by his brother, who lived on the farm of Job Harrell, who lived on the Cypress Bridge road, when his (meaning his brother's) wagon broke down; that he, James Clinton, dame there to get the peanuts for his brother. Officer Jones then went to Franklin, about a half-mile away, followed by Clinton. After a short time Officer Jones returned to the scene of the peanuts with W. E. Darden, chief of police of Franklin. In a short time Clinton also returned to the scene of the peanuts and talked there with Officer Jones, Chief Darden and Mr. Elmer Bradshaw, who had appeared on the scene just before that time. They talked about the peanuts. Mr. Darden, the chief of plice of Franklin, Virginia, told Jones that there were no reports on any stolen peanuts nor any stolen cars and that he would not fool with it further.

"Clinton told Jones to go with him near Courtland down the Cypress Bridge road, by the Joyner Service Station and he would there prove the ownership of the peanuts. Clinton got in his own car and drove off in front of the car driven by Mr. Bradshaw, in which Officer Jones rode. Just before Clinton got to the Joyner Service Station at the intersection of the Cypress Bridge road with the Franklin-Courtland highway, Bradshaw and Jones drove their car past the Clinton car and Jones demanded that Clinton stop at the service station. Both cars stopped at the service station. Jones went into Joyner's Service Station and asked Mr. Joyner if a Mr. Job Harrell lived on Cypress Bridge road (which road ran by Joyner's station). Joyner said no such man lived on this road and that he didn't know Mr. Job Harrell. Then Jones said, speaking to James Clinton: `Put your car on the side of the road and get in my car and go with me to Courtland.' All of which was done without one word from either party. Then and there Clinton got in the Jones car and rode on the front seat beside Mr. Bradshaw, the driver; Mr. Jones was riding on the rear seat. They rode together up the road towards Courtland about two miles until they came near another service station owned by Andrew Sipiscky. As they approached the Sipiscky station, Jones said: `We will take you to Mr. "Bossie" Bell. Do you know Mr. "Bossie" Bell?' Clinton replied, `I know "Bossie" Bell very well.' At once Clinton drew his pistol from his shirt and fired at Jones, killing him with one shot. Then he turned to fire on Bradshaw. Bradshaw overpowered Clinton and took the gun away from him. Just at that time Jones fell over in the back seat and Clinton reached over and took Jones' gun from the deceased officer's pocket. Bradshaw then began to shoot at Jones and shot him three times. He tried to shoot the fourth time, but his gun snapped. Thereupon Bradshaw ran around the Sipiscky Service Station. At that moment Clinton got out of the car on his left-hand side, ran around the car and shot at the fleeing Bradshaw. As Clinton passed Sipiscky, who was standing in the door of his service station, he fired a shot in his direction and ran away. (Bradshaw said that Clinton fired one shot and Sipiscky said Clinton fired two shots.)

"Jones was an officer of the town of Franklin and had on an officer's uniform at that time. He also wore an overcoat.

"Jones had no warrant of arrest for Clinton nor did he have any warrant of any kind for any person."

Just after Clinton shot Jones he turned to fire on Bradshaw. Bradshaw overpowered him and took his gun away. Clinton then reached over and took Jones' gun from the deceased officer's pocket. Then follows this recitation: "Bradshaw then began to shoot at Jones and shot him three times." It is plain that there is some error here in names, but there is no confusion about the statement we just made. Both of these men then jumped from the car and Clinton shot at Bradshaw as he ran.

1-3 Error is assigned to this instruction, numbered 7, and given on behalf of the Commonwealth:

"The court instructs the jury that malice aforethought necessary to constitute the crime of murder may be either expressed or implied. The word `malice' is used in a technical sense, and includes not only anger, hatred and revenge, but every unlawful and unjustifiable motive. It is not confined to ill will...