Colvin v. Commonwealth

• Decision Date: 17 March 1927
• Citation: 137 S.E. 476
• Parties: COLVIN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

137 S.E. 476

COLVIN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 17, 1927.

Error to Circuit Court, Fauquier County.

One Colvin was convicted of malicious wounding, and he brings error. Affirmed.

Grimsley & Miller, of Calpeper, and Chas. G. Stone, of Warrenton, for plaintiff in error.

John R, Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. The accused was convicted of malicious wounding and sentenced to the penitentiary for three years. The person wounded was Lamar Colvin, his cousin, with whom he was on very friendly terms. The theory of the prosecution was that he intended to shoot his brother-in-law, Cal Heflin, and shot his cousin by mistake. The defense of the accused was that the shooting was accidental.

Eleven years or more prior to the present controversy, and before Heflin had married the sister of the accused, he had shot Heflin in the ear, claiming to have found him and his sister in a compromising position. "There was a little scrap afterwards over it, " but nothing further was done. Heflin "had some trouble with him, " but had. "gotten along with him." Mrs. Heflin testified that "theyhad trouble several times." The accused, when drinking, was "fussy, " and Mrs. Heflin testified that "more or less every time he is drinking he takes his spite out on me, " that he struck her once or twice, and that "whenever he gets drunk I just try to keep out of his way."

On Saturday night, November 21, 1926, there was a corn shucking at the home of the father of the accused, at which there were present, on the invitation of the father, the accused, Cal Heflin and his wife, Lamar Colvin, Will Colvin, and several others of the family connections. During the shucking, some kind of intoxicating drink was passed around several times, and all of them, more or less, "felt their liquor." About 10 o'clock they were invited to the house to supper. The house contained but two rooms, a kitchen and another room, which were separated by a vestibule or hall about four feet square. When the parties came to the house, Mrs. Heflin was in the kitchen, and the accused walked up to her, and, as she says, hit her on the top of her head. Lamar Colvin remonstrated with him about it, and Cal Heflin came in about that time, and he and the accused engaged in a fight; but they were separated, and Heflin went out of the house, but came back, and he and his wife and children then went home. Heflin says that the accused saw him go out, but whether he saw him go when he went with his family he does not know, but thinks he could not have seen him from the position he occupied. Heflin further testified that he wont back again into the house, and as soon as he went in he heard the accused "hollering for his gun"; that the accused called to his wife to get his gun; that the accused said: "I shot him eleven years ago, and, damn him, I will get him this time sure." When the parties were separated in the kitchen, the father of the accused pushed him back into the other room and against the window which was broken out. The accused then got possession of his rifle, and it was discharged, resulting in seriously wounding Lamar Colvin, his cousin, who was just entering the room, which was dark. The accused claims that the gun fell across his feet in the scuffle, and that he picked it up and it went off accidentally in his hands; but the wound showed that the bullet had gone straight through Lamar, horizontally, and on the night of the shooting and shortly thereafter the accused told a disinterested witness, "Mr. Crabtree, I got the wrong man." The doctor who attended Lamar Colvin that night also testified that—

"Leroy said words to the effect that he had shot but had not hit the object he shot at; that he did not shoot to hit Lamar Colvin. He used some such expression as Lamar Colvin was not what he shot at."

On cross-examination, he testified, in part, as follows:

"Q. The effect, then, was what you said that he didn't hit the object he was aiming at?

"A. That he shot to hit something or some person, and that hitting Lamar Colvin was an accident, but that the shooting was not an accident. That was what I got from his expression."

The testimony shows that all of the parties were drinking, and one witness, a preacher, says that the accused was "about two-thirds drunk, " but the testimony for the commonwealth abundantly shows that he knew very well "what he was doing."

No complaint is made of the action of the trial court in granting and refusing instructions, and it is admitted that—

"The evidence for and against the petitioner on the merits of the case was such as that the jury could have convicted or acquitted, the petitioner claiming the shot fired was the result of an accident, while the theory of the commonwealth was that it was a willful and deliberate shooting."

Hence, the verdict cannot be said to be contrary to the evidence.

The ground on which reversal is sought is the admission of improper evidence. There are a number of specifications on this subject, but they may all be reduced to two: (1) Did the trial court err in permitting Cal Heflin to testify as to the reputation of the accused for peace and good order? (2) Did the trial court err in permitting Cal Heflin and his wife to testify as to the shooting of Cal Heflin in the ear by the...