Harper v. Com., 4327
| Decision Date | 17 January 1955 |
| Docket Number | No. 4327,4327 |
| Citation | 85 S.E.2d 249,196 Va. 723 |
| Parties | HAROLD HARPER v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Hill, Martin & Robinson, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General and C. F. Hicks, Assistant Attorney General, for the Commonwealth.
Harold Harper, the accused, was indicted under the maiming act, Code section 18-70, tried, found guilty of committing assault and battery upon Frank E. Webb, and sentenced to confinement in jail for twelve months.
His first contention is that the evidence for the Commonwealth was insufficient to sustain the verdict; hence, he says the court committed reversible error in overruling his motion to set it aside. There is a sharp conflict in the testimony on vital issues. That for the Commonwealth is substantially as follows:
On July 4, 1953, the accused and his wife went in an automobile to the back of Charles Spencer's store at Buckingham Court House for the purpose of buying ice. Richard Throckmorton, an employee of Charles Spencer, was in charge of selling and delivering ice from the rear of a truck which protruded from the entrance to a shed into a vacant space where customers would drive their motor vehicles down to the shed and park close to the rear end of the truck. Several minutes before the accused arrived on the scene Frank E. Webb and Will Llewellyn each had purchased ice from Throckmorton. Webb was chipping his ice on fish in his motor vehicle and Llewellyn was talking to him. The accused got out of his automobile, walked a few steps to the ice truck, ordered and paid for 100 lbs. of ice, which he requested to be divided into two pieces of 50 lbs. each. When Throckmorton attempted to cut the first 50 lbs. the ice did not break evenly. The accused told Throckmorton that the first piece of ice offered him did not weigh 50 lbs. Throckmorton agreed and said: 'I will give you the other in the other piece.' The accused replied if it was not 50 lbs. he was not going to pay for it. Llewellyn raised the ice with the tongs and said that it did weigh 50 lbs. A brief argument as to the weight of the ice ensued between him and the accused. However, the accused, being satisfied by the assurance of Throckmorton that he would make up the difference, carried the ice to his automobile, placed it in the trunk, and returned to the shed for the remainder of his ice. As he did so, Llewellyn asked him how much ice he wanted anyway; to which the accused replied that it was none of Llewellyn's business, he was not buying ice from him, he was buying it from the 'boy'; to which Llewellyn replied: 'You don't have to be so smart about it.' The accused replied he would get as smart as he wanted to and repeated the remark to Webb who had said something about the ice.
The three witnesses for the Commonwealth, Frank E. Webb, Will Llewellyn and Richard Throckmorton, testified that the second piece of ice fell or was knocked from the truck to the ground. Frank E. Webb then said to the accused: 'If you hadn't talked so smart and run off your mouth so much you wouldn't have dirt on your ice.' The accused continued to 'jaw' about the ice. Finally, Webb told Throckmorton: 'If he keeps on fussing about the ice give him his money back or give him another piece' and let him go; whereupon, the accused 'swung' the ice tongs at Webb. Throckmorton 'hollered' to the accused to put the ice tongs down, they were not his. The wife of the accused got out of the automobile and came to the scene. She persuaded her husband to surrender the tongs and he either gave them to her or to Throckmorton. The accused then went to the back of his automobile, got a metal pipe wrench, fourteen to eighteen inches long, and holding the same in both hands over his head ran towards Webb. As he brought the wrench down on Webb's head Llewellyn shoved him, thereby deflecting the blow. However, the wrench struck and cut a gash on the right side of Webb's neck and inflicted a minor bruise on his shoulder. Webb testified that when he saw the accused running at him with the wrench in his hands he yelled and
The testimony of the accused and his wife is substantially as follows:
As the accused reached down to pick up his second piece of ice Webb said: 'If you want that ice you had better get it and get on away from here'; to which the accused replied: 'I don't have to do that either because I'm not buying the ice from you.' He saw Webb run his right hand in his pocket and ' About that time his wife came up and he gave the ice hooks to her and as he was backing up to the rear of his car Webb, Llewellyn and a third man followed him. Webb stepped out in front of the other two and called him 'You smart son of a bitch'.
The three witnesses for the Commonwealth denied that Webb had a knife in his hand or that they or any of them followed the accused from the rear of the truck to the back of his automobile.
We find no error in the refusal of the trial court to set aside the verdict as it is well settled in this jurisdiction that where the evidence is sufficiently conflicting to create a reasonable difference of opinion, the verdict of the jury must be accepted by the trial court as well as by this Court.
The accused's second contention is that there is no evidence to support the following instruction granted on request of the Commonwealth:
'The Court instructs the jury that words alone, no matter how grievous or insulting, are never justification for an assault by force or violence.'
It is true, as claimed by the accused, that none of the witnesses for the Commonwealth testified that profane or insulting language was used before the beginning of the affray, but both the accused and his wife testified that Webb called the accused 'a smart son of a bitch' and the wife added '. . . and that is when Harold struck him.' This phrase is usually regarded as grossly insulting, but the use of it does not justify or excuse an accused in making an assault by force or violence upon his adversary. This testimony fully justified the court in giving the instruction.
The accused's next contention is that the court erred in refusing to give on his request the following instruction:
'The Court further instructs the jury that the good character of the defendant, when considered in connection with the other evidence in the case, may create a reasonable doubt and the circumstances may be such that an established reputation of good character, if relevant to the issue, will alone create a reasonable doubt, although the other evidence in the case might be convincing.' (Italics supplied).
We find no error in the refusal of the court to grant this instruction. In the first place, the phrase, 'if relevant to the issue', should not have been included in the instruction. The court and not the jury determines what evidence is and what evidence is not relevant. The court in permitting the evidence to be introduced necessarily held that it was relevant. The jury is the proper tribunal to determine the weight to be given the evidence that the court allows to be introduced.
In the second place, the expressions 'may create a reasonable doubt' and 'will alone create a reasonable doubt' are erroneous statements in an instruction on good character. It was said in Owens v. Commonwealth, 186 Va. 689, 708, 43 S.E. (2d) 895:
We have held that a proper instruction should read substantially as follows: 'The character of a prisoner when proven, whether good or bad, is a fact to be considered by the jury, but its weight as affecting the guilt or innocence of a prisoner is a matter for the determination of the jury in connection with the other facts proven in the case.' Owens v. Commonwealth, supra, pp. 708-9.
The accused proved by several witnesses, whose testimony was not contradicted by the Commonwealth, that his reputation for peace and good order, truth and veracity, was good. If he had offered a proper instruction on character, no doubt the court would have given it. Mr. Justice Spratley speaking for the Court in James v. Commonwealth, 192 Va. 713, 720, 66 S.E. (2d) 513, said:
'. . . In the second...
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