Lamb v. Commonwealth

• Decision Date: 05 November 1925
• Citation: 126 S.E. 3
• Court: Virginia Supreme Court
• Parties: LAMB et al. v. COMMONWEALTH.

126 S.E. 3

LAMB et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan.15, 1925.

Error to Circuit Court, Madison County.

Haywood Lamb and another were convicted of assault with intent to maim, disfigure, disable, and kill, and they bring error. Affirmed.

Will A. Cook, of Madison, for plaintiffs in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

WEST, J. Haywood Lamb and Ira Lamb were convicted of unlawful wounding, with intent to maim, disfigure, disable, and kill, and sentenced to jail for six months and to pay a fine of $250 each. They are here on a writ of error to that judgment.

On March 6, 1924, Haywood and Ira Lamb and C. P. Deane attended a public sale at the home of one C. B. Jarrell in Madison county. Deane had been informed that Haywood Lamb had a stick in his hand and had said he was going to "knock him in the head" with it. Deane was standing near the crier who was selling a horse He looked at the crier on his left and bid $55. As he turned his head to the right, he saw Haywood Lamb and Ira Lamb with sticks in their hands. Haywood Lamb came toward him with his club uplifted in both hands and struck at Deane, who warded off the blow with his left arm. Lamb raised his stick and struck at Deane the second time. Deane warded off the blow and struck Haywood Lamb in the face with his fist, and they clinched and engaged in mutual combat. Thereupon Ira Lamb, a cousin of Haywood Lamb, struck Deane on the head with a big stick. The blow dazed Deane, and as they were pulled apart he discovered that he was bleeding freely from a head wound and his lower lip, which Haywood Lamb had bitten off.

The defendants claim they acted in necessary defense of Haywood Lamb.

The accused having failed to point out any reason why the evidence is insufficient to sustain the verdict, and it so plainly appearing from the foregoing statement that the verdict is amply supported by the evidence introduced on behalf of the commonwealth, we deem it unnecessary to enter into any discussion on the fifth assignment of error, which is based upon the alleged insufficiency of the evidence.

The remaining assignments of error relate to the granting of instructions. It is alleged that the court erred in giving instructions Nos. 1, 2, 3, 6, and 7 for the commonwealth.

The instructions granted for the commonwealth, of which complaint is made, were as follows:

"No. 1. The court instructs the jury that wherever a charge of an assault with intent to maim, disfigure, disable, and kill is made and the assault is admitted and the accused in justification pleads self-defense, then the burden is upon the prisoner to prove to the satisfaction of the jury that he acted in self-defense.

"No. 2. The court instructs the jury that if the accused, Haywood Lamb, relies upon self-defense to justify the assault upon Deane, then the necessity relied upon to justify such assault must not have arisen out of the misconduct of the said Haywood Lamb; and the court further instructs the jury that if Ira Lamb depends for an acquittal of the assault made by him upon Deane upon the ground that it was made nec-essary for the purpose of defending Haywood Lamb from an assault on the part of Deane, that such defense by Ira Lamb is not available unless the jury believe from the evidence that Haywood Lamb was without fault in bringing on the difficulty between him and Deane.

"No. 3. The court instructs the jury that where there is a quarrel between two persons, both being in fault, and combat, as the result of such quarrel takes place, and one of the combatants is maimed, disfigured, or disabled, in order to reduce the offense to maiming, disabling, or disfiguring in self-defense, the prisoner must prove two things: First, that before Deane was assaulted by the accused Haywood Lamb with intent to maim, disfigure, disable, and kill him, the accused declined further combat and retreated as far as he could, with safety; and, secondly, that he necessarily assaulted the said Deane with the intent to maim, disfigure, disable, and kill him in order to preserve his own life or to save himself from great bodily harm."

"No. 6. The court instructs the jury that if you believe from the evidence, beyond all reasonable doubt, that the accused Haywood Lamb provoked the combat or produced the occasion between himself and Deane, in evidence before you, in order to have a pretext to kill the said Deane or to do him some serious bodily harm, then the accused is guilty of malicious wounding as charged in the indictment as the law is that a person cannot bring on a difficulty with a felonious intent, and then defend his acts in said difficulty upon the ground that he was acting in self-defense.

"No. 7. The court instructs the jury that the necessity relied upon to justify the assault must not arise out of the prisoners' own misconduct."

The instructions granted on the motion of the defendants were as follows:

"(a) The court instructs the jury that in determining the guilt or innocence of the accused of the offense charged, it is proper for them to take into consideration threats, if any proven, the cause of such threats, the relative sizes of C. P. Deane and the accused, and the position of the accused at the time the offense charged was committed.

"(b) The court instructs the jury that if they believe from the evidence that Ira Lamb, when he struck C. P. Deane with the stick, as alleged, believed that Haywood Lamb was in imminent danger of serious bodily injury by the said C. P. Deane, and that he struck the blow to prevent such injury, they must acquit.

"(c) The court instructs the jury that as to the imminency of the danger that threatened the prisoner, and the necessity of the prisoner's action, the prisoner was the judge; and that the jury must pass upon the prisoner's action in the premises, viewing said action from the prisoner's standpoint, at the time; and if the jury believe from the facts and circumstances in the case, viewed from the standpoint of the prisoner at the time, that he had reasonable grounds to believe, and did believe, the danger imminent, and the action of the prisoner was necessary to preserve his own life or to protect him from great bodily harm, h...