Lamb v. Commonwealth

• Decision Date: 15 January 1925
• Citation: 141 Va. 481
• Court: Virginia Supreme Court
• Parties: HAYWOOD LAMB AND IRA LAMB v. COMMONWEALTH.

Page 481

141 Va. 481

HAYWOOD LAMB AND IRA LAMB v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 15, 1925.

1. ASSAULT AND BATTERY — Assault with Intent to Kill — Evidence Sufficient to Sustain Conviction. — Accused, cousins, were convicted of an assault with intent to maim, disfigure, disable and kill. The party assaulted had been informed that one of the accused had armed himself with a stick and had said he was going to "knock him in the head." He saw the accused approach him with sticks in their hands and one of them struck at him, which blow he warded. Accused struck at him a second time. Again he warded off the blow and struck accused with his fist and they clinched and engaged in combat. Thereupon the other accused struck him a severe blow on the head, dazing him.

Held: That the evidence supported the verdict.

2. APPEAL AND ERROR — Harmless Error — Conflict in Instructions — Sufficiency of Evidence to Overcome a Prima Facie Case. — A conflict in instructions, which concern merely the sufficiency of the evidence to overcome the prima facie case made out by the opposing side and do not bear upon the final weight to be given to the evidence when all the evidence is in, never constitutes reversible error.

3. ASSAULT AND BATTERY — Self-Defense — Burden of Proof — Conflicting Instructions — Harmless Error — Case at Bar. — In a prosecution for assault with intent to kill, an instruction that told the jury that the accused's plea of self-defense cannot be sustained unless he prove it to the satisfaction of the jury was in conflict with another instruction to the effect that if the evidence preponderated in favor of self-defense, or was equally balanced, the jury ought not convict, was erroneous as placing too great a burden on accused, but it was not prejudicial error as accused was admittedly the aggressor.

4. SELF-DEFENSE — Proof to Sustain — Reasonable Doubt. — To entitle one relying on a plea of self-defense to an acquittal he is required to sustain his plea of self-defense only to the point that the evidence in support of it, when considered along with all the other evidence in the case, raise in the minds of the jury a reasonable doubt of his guilt.

5. SELF-DEFENSE — Aggressor. — The plea of self-defense is not available to the aggressor.

6. SELF-DEFENSE — Aggressor — Relatives. — The relative who strikes in defense of one who provokes a difficulty will be bound by the wrong of the relative defended, and can avail himself of the doctrine of self-fense only where the party defended had a right to strike in his own defense.

7. APPEAL AND ERROR — Assignment of Error — Instructions — Failure to Point to Error. — Where it was assigned as error that the court erred in giving instructions and the petition failed to point out wherein the instructions were erroneous, the assignment of error will not be considered in detail.

Error to a judgment of the Circuit Court of Madison county.

The opinion states the case.

Will A. Cook, for the plaintiffs in error.

John R. Saunders, Attorney-General, Leon M. Bazile, Assistant Attorney-General, and Lewis H. Machen, Assistant Attorney-General, for the Commonwealth.

WEST, J., delivered the opinion of the court.

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 $250.00 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 $55.00. 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 of 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 necessary 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...