Delp v. Commonwealth

• Citation: 200 S.E. 594
• Parties: DELP. v. COMMONWEALTH.
• Decision Date: 09 January 1939
• Court: Supreme Court of Virginia

200 S.E. 594

DELP.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

Error to Circuit Court, Grayson County; Sutherland, Judge.

Howard Delp was convicted of murder in the first degree, and he brings error. Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

S. B. Campbell and G. P. Young, both of Wytheville, for plaintiff in error.

Abram P. Staples, Atty. Gen, and Edwin H. Gibson, Asst. Atty. Gen, for the Commonwealth.

CAMPBELL, Chief Justice.

The accused was tried upon an indictment charging him with the murder of Posey C. Martin. The jury found the accused guilty of murder in the first degree and fixed his punishment at death. This writ of error brings under review the judgment of the court sentencing him to be electrocuted.

On the 21st day of February, 1935, the accused, Howard Delp, was arrested in the town of Calax, upon a charge of drunkenness. The arrest was made by Posey C. Martin, chief of police, at approximately 6 o'clock P. M. At that time the companion of accused, one Dowe Leonard, was also arrested and later both of them were incarcerated in the town jail which is situated on the second floor of the municipal building.

A short time after Delp and Leonard were placed in jail, friends of Leonard secured his release upon bail. However, just prior to the release of Leonard, Delp and Leonard became engaged in a "fuss". Delp produced a knife and made the statement to Leonard that he was going out of the jail first. As it was thought necessary that the bond of Leonard be taken by Martin, he was called to the jail from a near-by hotel for that purpose. When Martin entered the corridor of the jail Delp was standing at the cell door, which is a grated door, and as Martin opened the door, Delp attempted to rush by him. Martin attempted to push Delp back into the cell and a scuffle ensued. Bystanders went to the assistance of Martin, but in the melee which ensued, Delp stabbed Martin in the neck, severing the jugular vein and the carotid artery, ' from which wounds Martin immediately died.

After stabbing Martin, as Delp sought to escape, he was met in the hall by E. F. Dotson, a police officer who had assisted Martin in arresting Delp. When Dotson made an effort to restrain Delp he was cut in the face and head by Delp, and as a result of his wounds, was confined in a hospital eleven days. After cutting Dotson, Delp successfully resisted the efforts of seven or eight men to hold him, rushed down the steps, struck at a boy on the steps, broke the glass in the street door and disappeared in the darkness.

After his escape from the jail, Delp went to the home of a relative. Questioned as to the blood upon his person, he stated that he had a difficulty with a man and had struck at him but missed him and cut himself on a barbed wire. Upon the request of Delp that he be taken to the town of Hillsville, the relative and Delp got in an automobile and started for the town. Just as they approached Hillsville, the car was stopped by an officer who informed them he was looking for Delp. Delp leaped from the car and escaped. After a three day search by the officers, assisted by a number of citizens, Delp was finally arrested near North-Wilksboro, North Carolina. Due to the intense feeling against him Delp was placed in the jail at Wytheville. When first arrested he talked freely with the officers about the killing, where he had been and his efforts to avoid capture.

At the March term of the circuit court an indictment was found against Delp and his trial was set for the '25th day of March. Upon his arraignment, counsel appointed by the court to defend him, made a motion that Delp be committed to one of the State hospitals for the insane, for observation as to his sanity, and, in support' of the motion, introduced as witnesses Doctor George A. Wright, superintendent of the Southwestern State Hospital at Marion, Virginia, and his first assistant, Doctor A. D. Hutton. After stating that he was acquainted with the family and personal history of Delp, Doctor Wright testified as follows:

"Q. Doctor, will you tell the judge the extent of your examination, and describe to him the extent of your examination, so that he may know the extent to which you went, --the effort you made to ascertain this man's condition? A. I think it is proper to state in the outset that I am not fully satisfied, through failure to get this boy's co-operation. We made two intensive efforts to bring out his true condition. The boy is evasive. Whether this was purposely so or not, or whether it is due to a possible mental condition, I couldn't say. That is the point in doubt in my mind. We made a complete physical examination of this boy, stripped him and examined him thoroughly, and we made what we call a neurological examination. That is an examination of the nervous system. And then we attempted two separate mental investigations. The boy does not talk. It is impossible to tell just what is in a person's mind unless you can listen to some of his conversation, or be able to bring out certain points. The boy, if he had nothing at stake; if there was no possibility of his malingering; I do not think we would hesitate to express an opinion as to his mental condition. We took into consideration the gravity of the charge, and the possibility of his attempting to fake, --yet there were points, a number of important points brought out throughout the course of this attempted mental investigation which were very suggestive of mental involvement. For instance, he refused to answer the majority of questions he was asked, and he would stare in space. He was apparently apprehensive, and was looking around to see every one that came in, as though something was after him, and as I say, he was evasive and would not answer questions, but the point I started to mention was that he at various times had outbursts of silly laughter, which I believe it would take some person of more sense than I think he has to improvise and carry through. Silly laughter and silly conversation are very suggestive of a form of mental trouble, or dementia praecox. We see that so frequently, and we were impressed with this boy as being so typical of that form of insanity that it was very suspicious, and for that reason, from our point of view, we could not express an opinion, and in justice to everybody concerned, we feel that the boy should be studied further. I couldn't say that the boy is insane. I would not assume the responsibility at the present time of saying that he is sane. I do not know, but if we had him in the institution, and he had nothing at stake, I would not hesitate to declare him insane."

"By the Court: The indications from your examination are...