Dodson v. Commonwealth

• Decision Date: 12 January 1933
• Citation: 167 S.E. 260
• Court: Virginia Supreme Court
• Parties: DODSON . v. COMMONWEALTH.

167 S.E. 260

DODSON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 12, 1933.

Error to Circuit Court, Madison County.

Ellis Dodson was convicted of murder in the second degree, and he brings error.

Reversed and remanded.

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

Burnett Miller, C. T. Bowers, and Burnett Miller, Jr., all of Culpeper, for plaintiff in error.

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

CAMPBELL, C. J.

The plaintiff in error was found guilty of murder in the second degree and sentenced to the penitentiary for a term of eight years.

It is assigned as error that the court gave this instruction:

"The court instructs the jury that where the plea of self-defense is relied upon in a trial for murder, the law is that the plea of self-defense is not available to a party unless he was without fault in bringing about the difficulty, and, In any case, the necessity relied upon to excuse the killing must not arise out of the prisoner's misconduct."

In Vaiden's Case, 12 Grat. (S3 Va.) 717, and in Wallen's Case, 134 Va. 773, 114 S. E. 786, both cases in which the evidence warranted the giving of the instruction, the doctrine contained in the instruction herein involved was approved.

Complaint is made of the instruction on the ground that, under the evidence in the present case, the court fails to differentiate between justifiable and excusable homicide. In other words, it is contended that by this instruction the court told the jury that the plea of self-defense interposed by the accused was not available unless he was entirely without fault in bringing about the difficulty, and then goes further and tells the jury that the necessity relied upon to excuse the killing must not arise out of the prisoner's own misconduct.

In the brief of the Attorney General it Is conceded that the instruction is erroneous in one respect, viz., that it speaks of self-defense as though confined to justifiable homicide only, and ignores the doctrine of excusable homicide in self-defense.

In Jackson's Case, 96 Va. 107, 30 S. E. 452, it was held that "a person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger."

That case laid down the accepted rule of justifiable homicide in self-defense, and is not qualified to any extent by the later case of Jackson v. Commonwealth, 98 Va. 845, 36 S. E. 487.

In McCoy v. Commonwealth, 125 Va. 771, 776, 99 S. E. 644, 646, Judge Burks, in speaking of the difference between justifiable and excusable homicide in self-defense, quotes with approval the following: "The rule may be briefly stated thus: If the accused is in no fault whatever, but in the discharge of a lawful act, he need not retreat, but may repel force by force, if need 6e, to the extent of slaying his adversary. This is justifiable homicide in self-defense. But if a sudden fight is brought on, without malice or intention, the accused, if in fault, must retreat as far as he safely can, but, having done so and in good faith abandoned the fight, may kill his adversary, if he cannot in any other way preserve his life or save himself from great bodily harm. Vaiden's Case, 12 Grat. (53 Va.) 717, 729."

In Hodges v. Commonwealth, 89 Va. 265, 272, 15 S. E. 513, 516, the Supreme Court approved the following instruction defining justifiable homicide: "The court instructs the jury that justifiable homicide is the killing of a human being in the necessary, or apparently necessary, defense of one's self or family from great bodily harm, apparently attempted to be committed by force, or in defense of home, property, or person, against one who apparently endeavors, by violence or surprise, to commit a felony on either."

In our investigation, the most satisfactory discussion of the distinction to be drawn between justifiable and excusable homicide is found in that oftentimes overlooked but most excellent work, Davis's Criminal Law, prepared by J. A. G. Davis, who at one time was professor of law in the University of Virginia. On pages 70, 72, 76, and 77, we read:

"Homicide in defense of person or property, under certain circumstances of necessity; which is justifiable by the permission of the law. This takes place when a man, in defense of his person, habitation or property, kills another, who manifestly intends and endeavors, by violence or surprise, to commit a forcible or atrocious felony upon either. In the cases to which this ground of justification applies, no felony has been committed, but only attempted; and the homicide is justifiable in order to prevent it.

"All felonies may not be so prevented. A distinction is made between such felonies as are attended with force, or any extraordinary degree of atrocity, which in their nature betoken such urgent necessity as will not allow of any delay, and others of a different kind and unaccompanied by violence on the part of the felon. Those only which come within the former description may be prevented by homicide; as murder, rape, robbery, arson, burglary and the like. In the attempt to commit either of these, the party whose person or property is attacked is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing, it is called justifiable self-defense. And the same justification extends to homicide committed in the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant; for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had, if it had been done by himself, in consequence of the relation between them.

"This right of self-defense is founded on the law of nature, which confers on every individual the right to defend and maintain the possession of that which belongs to him, by those means which are necessary to attain this object. * * *

"In these several kinds of justifiable homicide, it may be observed, that the slayer is in no kind of fault whatsoever, not even in the minutest degree;...