Huffman v. Commonwealth

• Decision Date: 11 September 1946
• Citation: 185 Va. 524,39 S.E.2d 291
• Parties: HUFFMAN . v. COMMONWEALTH.
• Court: Virginia Supreme Court

39 S.E.2d 291

185 Va. 524

HUFFMAN .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 11, 1946.

Error to Hustings Court of Roanoke; J. L. Almond, Jr., Judge.

O. A. Huffman was convicted of murder in the second degree, and he brings error.

Judgment reversed, and case remanded for a new trial.

Before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

George W. Chaney, of Roanoke, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M.Ray Doubles, Asst. Atty. Gen., for Commonwealth.

EGGLESTON, Justice.

O. A. Huffman was convicted by a jury of murder in the second degree and his punishment fixed at twenty years in the penitentiary for the killing of Blair Gear heart.He asks us to reverse the judgment entered on the verdict on two grounds:

(1) The verdict was plainly contrary to the evidence in that no malice was shown, and the wound which resulted in Gear-heart's death was inflicted in self-defense.

(2)The court erred in not excluding the witnesses from the courtroom on the motion of the accused.

A third assignment, that a new trial should have been granted on the ground of after-discovered evidence, was abandoned at the oral argument before us and need not be considered.

The evidence discloses that between ten-thirty and eleven p. m., on December 5, 1944, Blair Gearheart, his brother, King Gearheart, Landon F. Overby, and Jake Ferguson went into the City Lunch Room on Commerce street, in the city of Roanoke.The place was crowded, and the men seated themselves in a booth near the rear of the lunchroom and ordered beer.After a few minutes Overby got up and proceeded towards the men's lavatory and in doing so brushed against Huffman who was returning therefrom.The men were strangers to each other.Overby apologized but Huffman was not inclined to accept the apology, cursed Overby several times and argued with him.

At this point Blair Gearheart, who was aware of the fact that Overby was intoxicated, left his seat in the booth and proceeded to the couple for the purpose of inducing Overby to withdraw from what appeared to be an approaching altercation.On reaching the two men, Gearheart said to Overby, "What is the trouble here, Landon?" to which Overby replied that he had accidentally "bumped into" Huffman but had apologized.Gearheart then remarked to Huffman: "Why don't you let the man alone and let him go on, you see he is drinking."In reply Huffman cursed Gearheart and struck at him.In retaliation Gear-heart struck back, slapped Huffman in the face with his open hand, and a fist fight ensued between the two men.During the encounter the two participants "went into a clinch, " and while in this situation Huffman drew from his pocket an open knife and stabbed Gearheart.Gearheart then threw Huffman to the floor.

At this point King Gearheart, who, up to this time, had remained seated in the booth, approached the two men and put his arms around Blair Gearheart to prevent his further fighting.Blair Gearheart remarked to his brother: "King, he has cut me; that boy has cut me."King Gearheart, who had seen Huffman drop the open knife into his right-hand trousers' pocket, grabbed and held Huffman's arm behind his back until the police arrived a few minutes later.In the presence of the police King Gearheart reached into Huffman's pocket, retrieved the open knife and handed it to one of the officers.

The Commonwealth further proved by a witness, Lundgren, who was seated on a stool at the lunch counter and attached to none of the parties involved in the affray, that after the initial incident in which Over-by brushed against Huffman, Huffman left Overby near the rear of the room and proceeded towards the front; that Huffman then apparently changed his mind, took his knife from his pocket, opened the blade, replaced the open knife in his pocket, returned towards Overby and resumed the argument.Lundgren corroborated the testimony of the other witnesses for the Commonwealth that the cutting occurred while Huffman and Blair Gearheart were "in a clinch, " and before Huffman was knocked or thrown down by Blair Gear-heart.

It is true that Huffman testified that at the time of the cutting he was lying prone on the floor on his back, was being choked by Blair Gearheart, and that he stabbed Gearheart in order to save his own life.However, the jury declined to accept that version of the incident and, of course, its finding is binding on us.

The blow struck by Huffman was of such severity as to cut through Gearheart's heavy winter overcoat and sweat shirt, inflict a wound six inches long, three inches deep, and split the left sixth rib.The wound caused a collapse of the left lung and a "massive hemorrhage" from which Gearheart died three days later.

It is plainly apparent from this analysis of the evidence that the jury was fully warranted in its verdict of murder in the second degree.The killing was accomplished with a deadly weapon.The general rule in this jurisdiction is that, in the absence of evidence of palliating circumstances, malice may be presumed from proof of the killing.Roark v. Commonwealth, 182 Va. 244, 252, 28 S.E.2d 693, 696;Coleman v. Commonwealth, 184 Va. 197, 202, 35 S.E.2d 96, 98.

Under the Commonwealth's version of the incident, which the jury has accepted, there were no circumstances of palliation.

Moreover, every homicide is prima facie murder in the second degree, and the burden is on the accused to reduce the grade of the offense or justify the killing.Nelson v. Commonwealth, 168 Va. 742, 750, 191 S.E. 620, 624.

Then, too, regardless of the antecedent provocation, the accused armed himself with a deadly weapon, left a place of safety near the front of the cafe, returned to the rear of the room and resumed the argument with Overby.From that point on he was clearly the aggressor in the altercation.He could not thereafter rely upon self-defense or provocation which was induced by his own belligerent conduct.Honesty v. Commonwealth, 81 Va. 283, 298;Jackson v. Commonwealth, 98 Va. 845, 848, 36 S.E. 487;Sims v. Commonwealth, 134 Va. 736, 748, 115 S.E. 382.

At the outset of the trial, counsel for the accused moved the court to "separate the witnesses" or exclude them from the courtroom on the ground, among others, that there were a number of witnesses for the Commonwealth who had "different versions" as to what happened.The motion was immediately overruled even though the Commonwealth's attorney had interposed no objection thereto.After exception had been taken to this ruling the Commonwealth's attorney stated to the court that he was convinced from his interviews with the Commonwealth's witnesses that there would be no "conflict or disagreement as to how the crime actually took place."Although counsel for the accused again insisted that a separation of the witnesses was vital to the defendant, the court again overruled the motion.This rulingis the basis of the second assignment of error.

In Wigmore on Evidence, 3rd Ed, Vol.6, § 1837, p. 347, that distinguished author says: "The expedient of separating a party's witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practised in various communities."¹

Mr. Wigmore reasons (§ 1839, p. 357 ff.) that the right to have the witnesses separated "seems properly to be demandable as of right, precisely as is cross-examination."However, he concedes (pp. 358, 359) that only a "few courts" adopt that view and that "the remainder, following the early English doctrine, hold it grantable only in the trial court's discretion; declaring usually, however, that in practice it is never denied, at any rate for an accused in a criminal case."

See, also53 Am.Jur, Trial, § 31, p. 47;23 C.J.S., Criminal Law. § 1010, p. 377ff., and numerous cases there cited.

In some jurisdictions the matter is regulated by statute.

Among the large number of cases dealing with the subject we will refer to a few of the more recent ones.

In People v. Cooke et al, 292 N.Y. 185, 54 N.E.2d 357, 360, a capital punishment case, the appellate court sharply criticized the action of the trial court in not granting the motion of the...