Durham v. Com.

• Decision Date: 30 August 1973
• Citation: 198 S.E.2d 603,214 Va. 166
• Parties: Luther DURHAM, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 603

198 S.E.2d 603

214 Va. 166

Luther DURHAM, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Aug. 30, 1973.

Billy J. Tisinger, Lexington (David G. Simpson, Harrison & Johnston, Winchester, on brief), for plaintiff in error.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ARSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

I'ANSON, Justice.

Luther Durham, Jr., ¹ defendant, was tried by a jury for the murder of Mrs. Annie Snow, convicted of murder of the first degree, and was sentenced to life imprisonment. We denied his petition for a writ of error to the judgment. After defendant's successful habeas corpus proceeding in the United States District Court for the Western District of Virginia, he was again tried for the offense in the court below, found guilty by a jury of murder of the first degree, and his punishment was fixed at life imprisonment. He was sentenced accordingly, and he is here on a writ of error to that judgment.

The sole question before us is whether the evidence was sufficient to warrant the trial court's instruction that a homicide committed in the commission of, or an attempt to commit, robbery is murder of the first degree.

The evidence shows that on February 25, 1963, Mrs. Snow and her daughter, Mrs. Waltine Hoover, were found stabbed to death in the Hoover home near Double Toll Gate, in Frederick County, Virginia.

The only evidence as to the actual commission of the crimes was given by the defendant in his written and oral confessions or admissions.

On June 23, 1964, defendant, while an inmate at the Virginia State Penitentiary, voluntarily made a written statement implicating himself and another in the commission of the crimes. In this statement, which was introduced in evidence without objection, Durham declared that he and Otha Howard, who had in his possession a knife with a 3- to 3 1/2-inch blade, traveled by automobile to the Hoover home with the intent to 'break in, in other words, to commit larceny.' He said they arrived at the Hoover home between 1:30 and 2:00 p.m. on February 25, 1963; that they parked the car in front of the house and both got out and went to the front door; that he knocked on the door three times but no one answered; that he 'jimmyed' the door lock and both of them entered the house; that having found no one inside, he went back to the car for a sack and, upon returning, found Mrs. Snow lying in the hallway of the house on the first floor; that she had been 'cut all to pieces' from six or seven stab wounds, and appeared to be dead; and that afte hearing screams from an unseen woman he quickly left the premises in Howard's automobile but returned approximately ten to fifteen minutes later to pick him up.

Defendant revisited the Hoover home while in the custody of the police on July 14, 1964. The testimony relating to this visit revealed that defendant called attention to the fact that the lock on the front door had been changed. Defendant also said at that time that he remembered going part of the way up the stairs and seeing the screaming lady (Mrs. Hoover) on the upstairs landing with Howard holding her with one hand and a knife in the other.

A police officer, who investigated the homicides less than an hour after they had occurred, testified that he found Mrs. Snow's body lying in the dining room of the home, and that he was unable to see any wounds on her body until artificial respiration was attempted. He found Mrs. Hoover's body on the upstairs landing.

There was no evidence that anything had been actually taken from the house. But a television set and a chair in the living room had been moved from their usual places.

Our inquiry is to determine whether Mrs. Snow was killed during the commission of, or an attempt to commit, robbery.

Code § 18.1--21 provides:

'Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate, and premeditated killing, or the commission of, or attempt to commit . . . robbery . . . is murder of the first degree. All other murder is murder of the second degree.'

In Virginia the punishment for robbery is fixed by Code § 18.1--91, but there is no statutory definition of robbery. Hence we look to the common law for its definition. Butts v. Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 767 (1926); Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958).

Robbery at common law is defined as 'the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.' Jones v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301, (1939); Mason v. Commonwealth, Supra, 200 Va. at 254, 105 S.E.2d at 150. The phrase 'of the personal property of another, from his person or in his presence' has been broadly construed to include the taking of property from the custody of, or in the constructive possession of, another. Falden v. Commonwealth, 167 Va. 542, 545, 189 S.E. 326, 328 (1937); State v. Butler, 27 N.J. 560, 589, 143 A.2d 530, 547 (1958).

The degree of asportation necessary to constitute a taking under the common law definition of robbery need be only slight. Green v. Commonwealth, 133 Va. 695, 699, 112 S.E. 562, 563 (1922).

In Mason v. Commonwealth, Supra, 200 Va. at 256, 105 S.E.2d at 151, we said:

'The violence...