Howard v. Com.
| Decision Date | 13 June 1966 |
| Citation | 148 S.E.2d 800,207 Va. 222 |
| Court | Virginia Supreme Court |
| Parties | Roger T. HOWARD v. COMMONWEALTH of Virginia. |
William E. Fulford, Norfolk, for plaintiff in error.
M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before EGGLESTON, C.J., and SPRATLEY, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
At the February, 1965 term of court, Roger T. Howard and Walter J. Smith, defendants, were jointly indicted for attempt to commit murder and for robbery. They entered pleas of not guilty to both indictments, waived trial by jury, and consented to be tried jointly upon both indictments at the same time. They moved to strike the Commonwealth's evidence at the conclusion thereof, and their motions were sustained as to the robbery indictment but overruled as to the attempted murder indictment. Both defendants were found guilty of attempt to commit murder and were remanded to jail. Their cases were referred to the court's probation officer for a pre-sentence report.
On April 12, 1965, the pre-sentence report was filed and a hearing was had. Prior to that time, defendant Smith had died from a fall while attempting to escape from jail, and the case against him was dismissed. Defendant Howard moved the court to set aside his conviction and to grant him a new trial on the ground that the judgment was contrary to the law and the evidence, that the motion was overruled and his punishment was fixed at confinement in the penitentiary for a term of five years. We granted Howard a writ of error.
The sole question presented in this appeal is whether the evidence was sufficient to sustain Howard's conviction for attempt to commit murder.
The record discloses that on December 28, 1964, at approximately 1:25 a.m., Officer Julius W. Lamm of the Virginia Beach Police Department received a call over his car radio concerning an automobile accident at the intersection of Cavalier drive and Holly road in Virginia Beach. He proceeded to the scene and found that a fellow officer was conducting an investigation of a two-car collision.
Defendants Smith and Howard had been the occupants of one of the vehicles. Their car, driven by Smith, had side-swiped the other vehicle and failed to stop, but the other car had given chase. In an effort to escape, Smith lost control of his automobile and it crashed into a tree. However, defendants, who had temporarily 'lost' their pursuer (the driver of the other car), managed to persuade him that they had not been the occupants of the vehicle. Howard approached Lamm and falsely stated that he had seen two men walk away from the accident scene. Howard also falsely stated that he and Smith were visiting some friends who lived in the area and that they were walking to their friends' home when they came upon the accident.
Both Smith and Howard then got into Lamm's police car and accompanied him as he searched the area for the two men who had supposedly left the scene. Lamm drove four or five blocks, but his search was, of course, fruitless, and he returned to the accident scene. At that time, Smith produced an 'I.D.' card and a police badge, exhibited them to Lamm, and falsely stated that he too was a police officer. Both Smith and Howard gave Lamm 'phony' names and addresses.
Lamm then told defendants that he would drive them to the house where they were staying. He testified: '* * * I still had a feeling that they might have been driving the car, and the fact that they said they were visiting just a couple blocks down the way, I wanted to check on them.'
Lamm drove several blocks north on Holly road until Smith pointed to a house and identified it as the place where he and Howard were staying. Lamm stopped the car, and the three men walked around the house to a side entrance located on a small porch. Smith climbed the porch steps and 'took ahold of the knob' of the screen door. Howard and Lamm were standing close by. Smith then turned around 'as if he was having trouble with the door', and Lamm saw that he had a .45 caliber automatic pistol in his hand. Smith came down the steps, took Lamm's service revolver from him, and handed it to Howard who 'stuck it in his belt.'
The three men went back to the police car. Howard 'placed' Lamm on the right side of the rear seat, took his white police hat from him and put it on, and got behind the steering wheel. Smith sat on the right side of the front seat in a 'turned sideways' position directly opposite Lamm and about two or three feet from him. He raised the .45 automatic pistol 'up over the back of the front seat' and pointed it toward Lamm. Howard drove north on Holly road about half a block and turned left. He and Smith 'mentioned' that they were going to Norfolk, but the car turned into a dead-end street. Defendants realized that they were 'apparently lost', so Lamm undertook to direct them out of the area. He testified:
'I mentioned the fact of the traffic light at 31st and Holly, and that the roads were Windy on one or two occasions, and both times Mr. Smith took the 45 he had and he waved it in my face like that, and said not to say anything about the street names or in what direction they were going, or where they were.
'From what I said, the dispatcher on the police radio could tell, and when I said at 31st and Holly that there was a traffic light there, and to make a right there, Mr. Smith took the 45 and stuck it in my face and said not to say anything about street names or directions, and at that time Howard stated that if I said anything else about street names or conditions of the streets or directions, to 'kill him."
Later, defendants asked Lamm to direct them to Norfolk, and he whispered directions to them. At one point he whispered that they should make a right turn to go to Norfolk but a left turn to go away from Norfolk. Whereupon, Smith said, 'All right, take a left,' but he motioned with his hand to Howard to make a right turn, and Howard complied with his signal. Sometime thereafter, the car turned onto Virginia Beach boulevard (Route 58) and proceeded toward Norfolk. Smith asked Lamm for his handcuffs and key, and Lamm gave them to him.
As the car continued along Route 58 in Norfolk Howard asked, 'Are we on 460 now?' Lamm replied, 'No sir, Route 58.' Howard responded, '460', and Lamm again advised that they were on Route 58. After Lamm made his second reference to Route 58, Smith 'thrust the 45 across the seat' in Lamm's face. According to Lamm, the hammer of the pistol 'had been cocked back'. (Smith denied that it had been cocked.) Lamm, who was 'concerned' for his life, threw up his hand in front of his face 'instinctively'. It came 'in contact with the side of the weapon, in order to push it aside', and the pistol 'went off.' Just as Lamm raised his hand Smith 'yelled something, but * * * the noise of the 45 * * * drowned it out'. The bullet passed through the back seat of the car about 4 inches to the left of Lamm's left shoulder.
Lamm was asked on cross-examination:
Smith continued to cover Lamm with the pistol after the shot was fired, but the weapon was not discharged again.
Lamm further testified:
Defendants also wrapped Lamm's belt around his mouth and 'drew it * * * back' in an effort to make it difficult for him to untie. They then got back into the police car and sped away. Shortly after they left, Lamm was able to remove the belt and handkerchief from his mouth and call for help. Two men came to his assistance and released him from the gate. The Virginia Beach police headquarters was promptly...
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