Compton v. Commonwealth

• Decision Date: 21 September 1933
• Citation: 170 S.E. 613
• Parties: COMPTON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

170 S.E. 613

COMPTON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 21, 1933.

Error to Circuit Court, Russell County.

John Compton was convicted of voluntary manslaughter, and he brings error.

Reversed and remanded for a new trial.

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

B. T. Wilson and Clarance C. Burns, both of Lebanon, for plaintiff in error.

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

CAMPBELL, Chief Justice.

This case is hero upon a writ of error to a judgment of the circuit court of Russell county, sentencing the defendant, John Compton, to a term of five years in the penitentiary, upon a conviction of voluntary manslaughter.

The undisputed facts are: On the morning of the 15th day of August, 1932, the deceased, Melvin Strouth, a cousin and brother-in-law of the defendant, went to the home of Charles Compton (a brother of defendant), and, observing one of his horses hitched near by, inquired of Mrs. Grace Compton the reason for his horse being there. Mrs. Compton informed Strouth that his son Joe had brought the horse, and had requested her to deliver the horse to his grandfather. Strouth then inquired as to the whereabouts of Joe and was informed that Joe, at the request of defendant, had gone off with a threshing machine. Upon receiving this information, Strouth became greatly angered and began to curse, and stated that he was going to get his son Joe if he had to kill him, and that he would "get" the defendant if he had to go into the latter's house to get him. Mounting his horse, Strouth rode through a field to the public road in the direction of the home of defendant. The state road force was engaged in work upon the highway and was operating a scarifier drawn by a tractor. The operation had drawn a number of people to the scene. The defendant, who resided near by, was on his way to the place of operation when he was met by Strouth, who asked defendant why he sent Joe off with the threshing machine. Defendant replied that he had not done so. Thereupon, Strouth dismounted from his horse, called the defendant a damned liar, and struck him with his fist. After being struck several times, defendant picked up a rock, and Strouth, who was armed with a pistol, reached into the bib of his overalls and told him if he did not throw the rock down he would shoot his "G--d--guts out." Defendant dropped the rock and was again struck by Strouth. Finally, the defendant requested Strouth to go with him to the home of Charles Compton and said he could prove by Grace Compton that he did not send Joe with the threshing machine. Defendant in front, with Strouth immediately behind him, making gestures, proceeded to the Charles Compton home. When the two men arrived at the Compton home, a number of women were on the porch. A short distance therefrom, several men, who had witnessed the altercation upon the highway, were observing the actions of the two men. Instead of verifying the statement of defendant, Grace Compton informed Strouth that defendant did send Joe with the threshing machine.

There is a conflict of evidence regarding the happenings from that point until the shot was fired by defendant. Witnesses for the commonwealth stated that just prior to the shooting, Strouth was standing immediately in front of the doorway; that he had been scratching his head with his right hand, but had lowered his hand to his side, whereupon the defendant shot him.

According to the testimony for the defense, when defendant arrived at the home he went into a room of the house and picked up a pistol lying on a bed; Strouth had threatened to kill defendant if Grace Compton did not corroborate his statement; when informed by Grace Compton that defendant had sent Joe with the machine, Strouth made four or five "surges" for his pistol, and then the defendant fired one shot which struck Strouth in the body. There is no dispute that immediately after the shot was fired Strouth was seen with a pistol in his hand and delivered the same to one Arthur Davis, a witness for the commonwealth in the trial.

The record further discloses that Strouth was placed in an automobile by Davis and another person and conveyed to the hospital at Richlands, a distance of several miles. During the progress of the journey, Strouth stated several times that "he thought he was killed." After making the statement, "I believe I am killed, " he then asked Davis if he thought the wound was serious. Davis replied that he could not tell. Strouth then said, "I want to tell you how this thing happened." He said when Compton went in the house and came back with the pistol he stated, "Damn you, I have got you where I want you now, and I am going to kill you." Over the objection of the defendant, the statement was admitted as a dying declaration.

Upon Strouth's arrival at the hospital, he informed Dr. Williams that he had been shot by Compton and he did not think he would get well. The doctor informed him that he could not tell; that he would have to be operated upon. Strouth was operated on in the afternoon and died during the night.

Again over the objection of the defendant, Dr. Williams was permitted to testify that Strouth stated to him that just before thefellow shot him he told him he would shoot his heart out.

Peyton Strouth, a brother of the deceased, was permitted to testify: "He told me after he said he was bound...