Delp v. Commonwealth

Decision Date09 January 1939
Docket NumberRecord No. 1709.
PartiesHOWARD DELP v. COMMONWEALTH OF VIRGINIA.
CourtVirginia Supreme Court

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. INSANITY — Criminal Law — Section 4909 of the Code of 1936 — Obligation upon Court to Appoint Commission. Section 4909 of the Code of 1936, providing for the determination of the question of the sanity of a person charged with crime, places no obligation upon the lower court to appoint a commission except where the court or attorney for the Commonwealth has reason to believe that the person to be tried is in such mental condition that his confinement in a hospital for the insane, or colony for the feeble-minded, for proper care and observation is necessary to attain the ends of justice.

2. INSANITY — Criminal Law — Section 4909 of the Code of 1936 — Commitment of Accused in Discretion of Court. — Under section 4909 of the Code of 1936, providing for the determination of the question of the sanity of a person charged with crime, the lower court may, after hearing the evidence, in its discretion, commit a person held for trial to the department for the criminal insane, at the proper hospital, pending the determination of his mental condition.

3. INSANITY — Criminal Law — Section 4909 of the Code of 1936 — Review of Action of Trial Court. — While the Supreme Court of Appeals has the power to review the action of the trial court, in committing or refusing to commit persons to the department for the criminal insane, pursuant to section 4909 of the Code of 1936, it will not disturb the trial court's ruling unless it plainly appears that the discretion of the trial court has been abused.

4. INSANITY — Criminal Law — Verdict of Guilty as Finding That Accused Was Sane. — A verdict of guilty is a finding that the accused was sane at the time the offense was committed.

5. INSANITY — Criminal Law — Determination of Sanity — Submission to Jury — Case at Bar. — In the instant case, a prosecution for homicide, accused was charged with murdering a police officer in attempting to escape from jail. Medical experts were unable to state whether accused was sane or insane, and the trial court impaneled a jury to try the question of the sanity of accused. Witnesses for the Commonwealth testified that the life and conduct of accused indicated that he was sane and no evidence of any acts prior to the killing, indicating that accused was insane, was introduced. The impaneling of the jury to inquire into the sanity of accused and the refusal to commit accused for observation were assigned as error.

Held: That in view of the unsatisfactory evidence that accused was insane, the trial court did the proper thing in submitting the question to a jury for determination.

6. INSANITY — Criminal Law — Determination of Sanity — Refusal to Strike out Conflicting Evidence — Case at Bar. — In the instant case, a prosecution for homicide, the trial court sustained a motion that a jury be impaneled to try only the question of the sanity of accused and error was assigned to the action of the trial court in refusing to strike out the evidence of the Commonwealth introduced on the trial of the insanity issue. The evidence in many particulars was conflicting.

Held: That the trial court was correct in its holding that the issue should be determined by the jury.

Error to a judgment of the Circuit Court of Grayson county. Hon. Horace Sutherland, judge presiding.

The opinion states the case.

S. B. Campbell and G. P. Young, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.

CAMPBELL, C.J., delivered the opinion of the court.

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 Galax, upon a charge of drunkenness. The arrest was made by Posey C. Martin, chief of police, at approximately six 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 cooperation. 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...

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11 cases
  • Thomas v. Cunningham
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 8, 1963
    ... ... No evidence to the contrary was introduced by the Commonwealth. Nevertheless, the trial judge summarily denied the motion and the next day Thomas by counsel pleaded guilty to all six indictments and was given six ...         3 Code of Virginia 1960 § 19.1-227, a statute said to be "declaratory of the common law." Delp v. Commonwealth, 172 Va. 564, 200 S.E. 594, 596 (1939) ...         4 United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 ... ...
  • Orndorff v. Com.
    • United States
    • Virginia Supreme Court
    • June 14, 2005
    ... 613 S.E.2d 876 ... 45 Va. App. 822 ... Janice Larue ORNDORFF ... COMMONWEALTH of Virginia ... Record No. 1325-02-4 ... Court of Appeals of Virginia, Richmond ... June 14, 2005 ... Page 877 ... The trial court's competency finding is a question of fact and is reviewed under a plainly wrong standard. See Delp v. Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939); see also Naulty v. Commonwealth, ... Page 888 ... 2 Va.App. 523, 524, 346 ... ...
  • Delong v. Com., s. 870182
    • United States
    • Virginia Supreme Court
    • November 25, 1987
    ... Page 669 ... 362 S.E.2d 669 ... 234 Va. 357 ... Wayne Kenneth DELONG ... COMMONWEALTH of Virginia ... Record Nos. 870182, 870203 ... Supreme Court of Virginia ... Nov. 25, 1987 ... Page 670 ...         [234 Va ... See, e.g., Gray v. Commonwealth, 150 Va. 571, 142 S.E. 397 (1928); Delp v. Commonwealth, 172 Va. 564, 200 S.E. 594 (1939) ...         [234 Va. 372] Since the enactment of the current capital murder statutory ... ...
  • Orndorff v. Com.
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    • Virginia Court of Appeals
    • November 23, 2004
    ... 605 S.E.2d 307 44 Va. App. 368 Janice Larue ORNDORFF ... COMMONWEALTH of Virginia ... Record No. 1325-02-4 ... Court of Appeals of Virginia, Alexandria ... November 23, 2004 ...          605 S.E.2d ... See Code § 19.2-169(E). The trial court's competency finding is a question of fact and is reviewed under a plainly wrong standard. See Delp v. Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939). The evidence, properly viewed, established that appellant was competent to be ... ...
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