Lee v. Commonwealth
| Decision Date | 11 October 1948 |
| Citation | 188 Va. 360,49 S.E.2d 608 |
| Court | Virginia Supreme Court |
| Parties | LEE. v. COMMONWEALTH. |
Error to Circuit Court, King William County; J. Douglas Mitchell, Judge.
Robert Edward Lee was convicted for voluntary manslaughter and he brings error.
Reversed and remanded.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
Douglas S. Mitchell and John E. DeHardit, both of West Point, for plaintiff in error.
J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for Commonwealth.
The petitioner, Robert Edward Lee, was indicted, tried by a jury and found guilty of voluntary manslaughter. His punishment was fixed at five years in the penitentiary and he has been sentenced accordingly.
On the night of June 6, 1947, Johnson Regensburg, seventeen years of age, was killed by Lee by the infliction of a knife wound on the inside of the left thigh. The wound was a deep one and extended to the bone. It was approximately 13 inches long and was deeper on the lower part "of the thigh than on the upper. The medical testimony discloses that Regensburg could not have received the wound had he been standing in a normal position but that it could have been inflicted while he was walking or kicking.
There was a dance in progress in the Community building in King William county. The accused, accompanied by two other boys, Floyd Dungee and Boggs Kelley, drove into the grounds at the Community building and proceeded into the parking area. Kelley alone intended to attend the dance; Lee and Dungee did not intend to go. Lee was driving the automobile, and prior to going to the Community building, had been driving with his friends during the early part of the evening.
As he proceeded to the parking area something was thrown against the automobile. Lee thought it was a beer bottle or beer can, and he stopped the car. He inquired of those standing around, including the deceased, as to who hit his car. Re-gensburg, a much larger man than Lee, replied that no one had hit his car, whereupon Lee stated "some son of a bitch hit my car with a beer bottle". Regensburg said if he was looking for trouble he had come to the right place, or words to that effect.
From the evidence of the Commonwealth Regensburg struck the first blow, slapping Lee in the face and Lee "backed up" and drew his knife from his pocket. The Commonwealth's evidence further discloses that Lee would advance upon Regensburg with the knife in his hand and that Regensburg would kick at the knife and Lee would back away to avoid the kick and then rush at Regensburg again with the open knife. This continued until they reached a point beyond or behind the parked cars and at that place the fatal wound was inflicted. The testimony is conflicting as to how the wound was inflicted. Afterwards Lee ran to the woods but voluntarily returned in a few minutes and turned the knife over to a State policeman. He told the officer at the time that he surrendered that Regensburg had been crowding him and he took the knife out of his pocket to try to keep him off. At the trial Lee testified that Regensburg was following him and he fell to the ground and upon arising from the ground he accidentally cut Regensburg while Regensburg was kicking at him.
After the cutting Regensburg was taken to a doctor but died from the loss of blood before reaching the doctor's office.
The petitioner assigns as error the action of the court in granting instructions defining first and second degree murder. He also assigns as error the granting of the instructions on the presumption of malice, but in view of our ultimate conclusion it will be unnecessary to discuss these two assignments because upon a new trial he could not be found guilty of a higher of fense than manslaughter. See Code, sec. 4918, and cases there cited.
The third assignment of error is directed to the court's action in admitting, in rebuttal, certain evidence offered by the Commonwealth. This assignment is the vital one and, in our view, will compel a reversal of the judgment of the trial court.
After the evidence in chief for the Commonwealth and for the accused had been completed the Commonwealth offered evi-dense, in rebuttal, of the good reputation of the deceased in the community in which he had lived as being a peaceful and law-abiding citizen, as a regular church attendant, and as being a model young man. The evidence was given by the local Baptist minister in charge of the two Baptist churches in that community and by another witness who lived near by, who testified that "the general reputation in the community in which he lived, as being a peaceful and law-abiding citizen was good."
When this evidence was offered, counsel for the accused objected but the court overruled his objection, and he promptly excepted to the court's ruling.
The accused may show in a homicide case, when he relies upon a plea of self-defense and has supported his plea with some evidence, the reputation or character of the deceased for violence and turbulence. Jackson v. Commonwealth, 98 Va. 845, 36 S.E. 487; Harrison v. Commonwealth, 79 Va. 374, 52 Am.Rep. 634; State v. Peoples, 106 W.Va. 262, 145 S.E. 389, and 26 Am.Jur., Homicide, Sec. 344. Only then may the Commonwealth show that the deceased had the reputation of being a peaceful and law-abiding man. But the Commonwealth may not, in rebuttal, in the absence of any attack upon the character of the deceased, introduce evidence of his good reputation for peace and obedience to law, and that he was a regular church attendant and a model young man. Testimony that he was a church attendant and a model young man was not only irrelevant but aggravated the error.
The accused and the deceased were entire strangers and naturally the accused had no previous grudge or...
To continue reading
Request your trial