Leigh v. Com.

• Decision Date: 05 September 1951
• Docket Number: No. 3835,3835
• Citation: Leigh v. Com., 66 S.E.2d 586, 192 Va. 583 (1951)
• Court: Virginia Supreme Court
• Parties: JOE LEIGH v. COMMONWEALTH OF VIRGINIA. Record

Page 586

66 S.E.2d 586

192 Va. 583

JOE LEIGH v.COMMONWEALTH OF VIRGINIA.

Record No. 3835.

Supreme Court of Appeals of Virginia

September 5, 1951.

Fred B. Greear and L. M. Robinette, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.

JUDGE: HUDGINS

HUDGINS, C.J. delivered the opinion of the court.

Joe Leigh seeks by this writ of error to reverse a judgment entered on a verdict convicting him of second degree murder for killing John Miller and fixing his punishment at 15 years confinement in the State penitentiary.

At the threshold of the casewe are confronted with a motion by the Commonwealth to dismiss the writ of error because it is alleged defendant failed to file his notice of appeal and assignments of error within sixty days after entry of the final judgment, as required by Rule 5:1§ 4.

The motion to set aside the verdict was overruled and final judgment entered July 14, 1950.The notice of appeal and assignments of error were marked filed September 19, 1950, seven days after the lapse of the sixty-day period.Ordinarily, the date of filing noted by the clerk on papers filed in his office is conclusive.

The deputy clerk, Nanetta Ely, who received in the clerk's office the transcript of the evidence and the notice of appeal and assignments of error, is uncertain just when the notice of appeal was filed.She states in her affidavit that she marked the transcript of the record filed September 4, 1950, and if she received the notice of appeal and assignments of error on or about the same date, the notice of appeal and assignments of error should have been marked 'filed September 4, 1950.'She adds: 'It could be that I did not mark it filed the day it was received and afterward, in getting the papers together preparatory to making up the original record to be sent to the Supreme Court, I might have noticed that the Notice of Appeal had not been marked filed and accordingly marked it filed on that date,' towit: September 19, 1950.

Mr. Lloyd M. Robinette, one of the attorneys for defendant, stated in his affidavit that while he did not remember the exact date on which the notice of appeal and assignments of error were filed, he did remember that he went over the notice with Fred B. Greear well within the sixty-day period and that Mr. Greear left his office with copies of the notice of appeal and assignments of error with the express purpose of having Mr. Glen M. Williams, the Attorney for the Commonwealth, acknowledge legal service.

Mr. Williams stated that he did not remember the exact date the notice of appeal and assignments of error were brought to him, but he did remember accepting service and endorsing thereon 'legal and timely service accepted,' and that if the notice of appeal and assignments of error had not been presented to him within the time prescribed by the rules he would not have accepted service.

Mr. Fred B. Greear, of counsel for defendant, stated that he clearly recalled going over the notice of appeal and assignments of error with Mr. Robinette in the latter's office on a date well within the sixty-day period; that he went from Mr. Robinette's office directly to the office of Mr. Williams, where Mr. Williams acknowledged service, after which he walked from Mr. Williams' office across the hall to the clerk's office and gave the notice of appeal and assignments of error, with the acknowledgment of service thereon, to Miss Nanetta Ely, deputy clerk, and directed her to file them with the papers in the Leigh case.

We have the affidavits of two reputable attorneys representing the defendant, and the Attorney for the Commonwealth, stating positively that the notice of appeal and assignments of error were presented to opposing counsel, who acknowledged service well within the sixty-day period.Mr. Greear swears that on the same day and immediately after the Attorney for the Commonwealth had acknowledged service of the notice of appeal and assignments of error, he walked across the hall and filed the paper in the clerk's office.The deputy clerk, in her affidavit, virtually acknowledges that she made a mistake in the date of filing of the notice.

These uncontradicted facts compel a different conclusion from that reached in Skeens v. Commonwealth, ante, p. 200, 64 S.E. (2d) 764, andAvery v. County School Board, ante, p. 329, 64 S.E. (2d) 767, andHall v. Hall, post, p. 721, 66 S.E. (2d) 595.

Defendant, in order to obtain a review by this court, complied with every requirement prescribed by the rules of Court.He should not be denied a review simply because of an error made by a ministerial officer of the court.The motion to dismiss is overruled.

Defendant moved the trial court to set aside the verdict on the ground that the evidence was insufficient to sustain it.This action of the court is, in effect, the basis of defendant's first four assignments of error.

The evidence for the Commonwealth and for the defendant is in conflict on several material points.Therefore, under familiar rules, we must consider the evidence in the light most favorable to the Commonwealth, the successful litigant in the trial court.

Joe Leigh was 51 years of age and, at the time of the homicide, weighed approximately 210 pounds.He had served several months as a police officer in the town of St. Charles.In 1942, and for several years thereafter, he had operated a restaurant in the town.During this period he was married and living with his wife, Maude Leigh.While operating the restaurant he employed Lorene Miller as a waitress.When employed she was only 14 years of age, but she told defendantshe was 16.Defendant and Lorene became infatuated with each other and in 1948 Lorene gave birth to a baby boy whom defendant acknowledged to be his child.

On December 6, 1948, Maude Leigh obtained a divorce a vinculo matrimonii from defendant.On January 28, 1949, defendant and Lorene Miller were married in Harlan county, Kentucky.They returned to St. Charles where they lived together as husband and wife until the spring of 1949.On June 13, 1949, defendant obtained a divorce a mensa from Lorene on the ground of desertion.Subsequent to the entry of this decree defendant and Lorene cohabited at various times.They spent several nights together in the home of Mrs. Roy Hall, sister of John Miller's wife.About a week or ten days prior to the homicide they slept together in the home of John and Ellen Miller, parents of Lorene.

Lorene testified that after the divorce proceedings were instituted defendant told her that he had abandoned them.Relying upon this statement, she slept with him several times after June 13th.Shortly after they had slept together in the home of her parents she saw the divorce papers in the glove compartment of defendant's car and for the first time learned that he had obtained a divorce.She did not cohabit with him after obtaining this information.

John Miller was 51 years of age, 6 feet tall, and weighed approximately 220 pounds.He and his family, consisting of his wife, Ellen Miller, four children, John Miller, Jr., a son 23 years of age, Lorene Miller, 21 years of age, and her baby, Doris Miller, 14 years of age, and a younger daughter, Glenda Kay Miller, lived a quarter of a mile beyond the corporate limits of the town of St. Charles, in a four-room, one-story house located on the side of the railroad right of way.The only street or drive way to the house was a lane leading from the main traveled road and ending on the opposite side of the railroad.There was a foot path leading from the end of the lane across the right of way to the Miller house.

On July 9, 1949, defendant made three trips to the Miller home.The first trip was between 1:00 and 2:00 p.m., at which time he saw Mrs. Miller, her son and two daughters, Lorene and Doris.He played with his baby a few minutes and left without any unpleasantness.Two to three hours later, when he returned he appeared to be drinking.He went into the bedroom, picked up his baby and brought it into the living room, where he was throwing it over his head.The baby began to cry and scream.Lorene took the baby and carried him into the kitchen where defendant followed her.Defendant threatened Lorene's life, whereupon she took the baby and hurried out of the house.As she was leaving, defendant called her 'to come here,' but she continued on her way.About this time defendant picked up a white china dog and said: 'Kill that God damned bitch.'Ellen Miller advised her daughter to take the baby and get away from the house, because said she, 'he(defendant) aims to hurt some of us.'

After Lorene had gone Ellen Miller asked defendant to leave.According to her testimony, she said: 'Joe, why don't you leave?What have we done that you want to act like this?Lorene is staying here and not bothering you.He cursed and said, 'God damn you, I don't have to leave.'I said, 'If you don't leave, I'll call the law.'I took up the receiver and started to look for Charley Redman's (police officer) number. 'Defendant knocked the telephone directory out of her hand, with the statement 'You are not going to call any God Damn law on me. 'He then shoved Mrs. Miller and she fell back on the couch.Mrs. Miller began to scream, picked up the telephone again and started to telephone her sister, Mrs. Roy Hall.Defendant again interfered.Mrs. Miller, at the urgent request of her daughter, Doris, dropped the telephone, continued to scream and went out the back way to the home of Mrs. Collins.A few minutes thereafter defendant left the house.Mrs. Miller knowing that her husband was at the home of Mrs. Hall, sent her daughter, Doris Ann, in a taxicab for him.When Doris got in the cab she was crying and continued to cry until she reached the home of Mrs. Hall where she told her father what had happened.He, Jerry Hall, 15 year old son of Mrs. Hall, and...