Jones v. Commonwealth

Citation45 S.E.2d 908
PartiesJONES. v. COMMONWEALTH.
Decision Date12 January 1948
CourtSupreme Court of Virginia

Error to Circuit Court of City of Suffolk; John K. Hutton, Judge.

Johnnie Jones was convicted of murder in the first degree, and he brings error. Reversed and remanded.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN and MILLER, JJ.

M. Anderson Maxey and Thomas L. Woodward, both of Suffolk, for plaintiff in error.

Abram P. Staples, Atty. Gen, and Ballard Baker, of Richmond, for the Commonwealth.

MILLER, Justice.

On Sunday afternoon, September 22, 1946, Eddie Grimes was killed in the city of Suffolk by a shot fired from a 38-calibre pistol. Johnnie Jones was indicted for the homicide, pleaded not guilty, and was tried before a jury. He undertook to establish self-defense as a justification for the killing. The trial resulted in a verdict of conviction of murder in the first degree, and punishment fixed by the jury at life imprisonment. From the judgment of the court upon that verdict this writ of error was obtained.

Without the aid of the plat and several pictures of the streets, houses, and other physical surroundings introduced in evidence, a detailed description of the scene of the killing would be confusing. However, a brief statement of the location of the respective homes of deceased and accused, and where each was standing when the fatal shot was fired is necessary.

Culloden Street and Crumpler's Alley intersect at right angles. The former extends north and south, the latter east and west. At the southeast corner of this intersection a two-story three-family tenement faces on the east side of Culloden Street and extends back eastwardly along the south side of Crumpler's Alley. There are three apartments in this structure. Each has a separate entrance and a front and back porch separated from the others by railings and partitions. From the back porch of each are two or three steps descending to a small court or yard in common that opensto the north along the south side of Crump-ler's Alley. This court or yard is almost enclosed by houses and a fence except where it opens on Crumpler's Alley. A man named Willie Davis lived in the apartment next to Crumpler's Alley. Here he operated a restaurant on the first floor and had living quarters on the second floor. The accused lived in the next apartment immediately to the south. The steps of his back porch are about eighteen feet from the southern edge of Crumpler's Alley.

The home of the deceased is located upon Brown's Lane. It is in a southeasterly direction from that of the accused and at a distance of about one-hundred and fifty feet across an ill-kept and rubbish-strewn area. It is possible to see Grimes' front perch from the steps descending into the court at the rear of accused's abode. After one leaves Grimes' home and proceeds northwardly to and thence westwardly along Crumpler's Alley toward the back yard or court, the buildings prevent him from being seen by anyone on the rear steps of accused's home. Within a few feet after leaving Grimes' porch he cannot be again seen until he comes to and abreast of the small court at the rear of the three-family tenement.

Immediately before the killing, deceased approached the scene by the above route. He was fired upon at the north line of the court or back yard of accused's home very near to or upon the southern edge of Crumpler's Alley about eighteen feet from accused's back steps. Accused was standing on his back steps when he fired.

The deceased, Eddie Grimes, was of a belligerent nature, young and physically stronger than Johnnie Jones. About a month prior to the killing he had unjustifiably provoked a quarrel in the home of the accused, and in vile and profane language threatened to kill him. On that occasion, Jones sought the protection of an officer of the law who took from Eddie Grimes a knife with which he, Grimes, had threatened to cut the throat of the accused. Thus the accused well knew of the dangerous attitude and character of the deceased.

On the afternoon of the homicide, accused and George Tyler were in the restaur ant operated by Willie Davis. Tyler and Jones had been in an argument concerning the amount Jones was indebted to Tyler as a result of a game of cards that had just been played. Some profane language had been used by these two but no blows had been passed. The argument seemed about concluded as Eddie Grimes entered the restaurant. Accused had just stepped out of the front door and was then seated in a swing on the porch, but where a conversation in the restaurant could be heard. When Eddie Grimes came into the restaurant, he learned of the argument and, without reason or invitation, injected himself into the matter. He asked Tyler what the trouble was and upon hearing Tyler's version, immediately used disgusting and threatening language about the accused. Prefaced by foul and unprintable descriptive terms, he remarked, " * * * if he owed me I would take a stick and kill him."

Accused heard this and stepped back into the front door. He said to the deceased, "Eddie, you attend to your business and I'm attending to mine, you ain't got nothing to do with me and George talking."

Deceased's reply was, "Shut up! Shut up! If you say another thing I will kill you. * * *" Then followed other vile and profane language from the deceased. At this moment, Willie Davis, proprietor of the restaurant, ordered both men from the premises and they departed together.

When Jones and Grimes left, it being necessary for the accused to pass down the front steps from Davis' porch to get to the steps of his own porch, he was struck by Grimes, knocked to the earth, and there beaten and kicked as he lay upon the ground. That unprovoked and vicious attack was testified to by accused and another witness.

The witness, Junius Pitts, had this to say with reference thereto:

"Q. When you got to Culloden Street, what did you see? A. I saw Eddie. Eddie had Johnnie down on the ground beating him.

"Q. How many times did he hit him? A. I don't know. He kicked him some two or three times.

"Q. Where did he kick him? A. He kicked him on the side of the head.

"Q. What happened then? Tell the jury what happened. A. He kicked him on the side of the head and I walked up and caught Eddie by the hand and told him to quit and go on off. Tyler had him and told him the same thing.

"Q. What did Jones say to him? A. He said, 'Don't hit me any more, Eddie.'

"Q. Let's go back. You say you told Eddie Grimes to leave him alone? A. Johnnie said to Eddie, 'Please, Mr. Eddie, don't hit me any more. You have done and beat me enough'.

"Q. Where was he at that time? A. He was on the ground. Eddie kicked him on the side of the head two or three times."

After bystanders had prevailed upon deceased to desist from his attack, the accused and this same witness heard the deceased say that he was going to kill the accused. The threat to kill was couched in language which was foul and offensive, but with intent unmistakably clear.

The deceased proceeded immediately to his home on Brown's Lane. The accused went into his apartment, secured his pistol, and returned to his rear steps where he continued to stand. He explains this action by saying that he expected Grimes to return and try to kill him and that he preferred not to be caught in his house.

Within five to fifteen minutes, deceased did return. He walked northwardly from his house to the eastern end of Crumpler's Alley, about one-hundred and twenty-five feet from accused's home. Here he hurriedly turned and proceeded westwardly on Crumpler's Alley toward the court at the rear of accused's porch. He may have been seen by the accused as he left his home on Brown's Lane, but immediately thereafter he was obscured from view. As he approached along Crumpler's Alley, he was hidden by the houses facing thereon. When he entered this alley he was heard to again proclaim, " * * * somebody has got to die." This remark by deceased, made only a few seconds before he was killled, was testified to by John Davis who had seen the fight a few minutes previously. The threat and manner of the deceased as he turned and proceeded westwardly on Crumpler's Alley toward the scene of the killing impressed Davis. Though he could not then see Jones, he called to him and warned him that the deceased was coming and might kill him.

The testimony of this witness, who was standing near the eastern end of Crumpler's Alley with regard to the hurried return and threat by deceased, is as follows:

"Q. Tell us where you were at the time? A. At the back end of the lane standing in front of Fred Ridley's house.

"Q. Did you see Eddie Grimes on the way to the place of the shooting? A. Yes, sir.

"Q. Tell the jury what you saw and heard. A. * * * He came back in a hurry and I said, 'What is the matter with you? He said, 'God damn it, somebody has got to die'. In the meantime he went up the alley a little further, and when he got by Johnnie Jones' house, he must have saw him. I didn't see Johnnie Jones, but I could see Eddie, and he got up there and stopp"ed and had his hand in his pocket, and I said, 'Look out, Johnnie Jones, he may shoot you, ' like that, and I thought he had something in his pocket, and that is the time I heard the gun go off."

The shots sounded almost simultaneously with the call from John Davis to, "Look out, Johnnie Jones, he may shoot you."

In this setting, and colored by these events, the alleged overt act on the part of the deceased relied upon by accused as the immediate justification for the killing is as follows: Whaen deceased saw Jones he immediately stopped about eighteen to twenty-four feet from him with his right hand in his trousers' pocket, made a turn toward the accused, and placed his left hand over his right pocket as if to draw...

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