Macon v. Commonwealth

• Decision Date: 01 March 1948
• Citation: 187 Va. 363,46 S.E.2d 396
• Parties: MACON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

46 S.E.2d 396

187 Va. 363

MACON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 1, 1948.

Error to Circuit Court, Southampton County; John K. Hutton, Judge.

Mary Louise Hundley Macon was convicted for voluntary manslaughter and she brings error.

Reversed and remanded.

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

James T. Gillette, of Courtland, and Thomas L. Woodward, of Suffolk, for plaintiff in error.

Harvey B. Apperson, Atty. Gen., and Henry T. Wickham, of Richmond, for Commonwealth.

STAPLES, Justice.

The defendant (plaintiff in error), at a trial upon an indictment for the mur der of Andrew C. Thomas, was found guilty of voluntary manslaughter and sentenced to one year in the penitentiary. The verdict of the jury had so fixed the punishment "with the recommendation of clemency." The only evidence in the record of any act of the defendant from which any inference of her guilt can be drawn is a written confession, to the admission of which the defendant excepted on the ground that it had been procured by threats and inducements made and held out to her by the Commonwealth's Attorney and the sheriff. In addition to other assignments, she also assigns as error the trial court's refusal to set aside the verdict because contrary to the law and the evidence. The testimony in the case is quite voluminous. In view of the jury's verdict, it will be considered from the standpoint most favorable to the Commonwealth.

The defendant lived with her mother, Mrs. Hundley, at the latter's home in the small town of Ivor, in Southampton County. The deceased lived near Petersburg but usually visited them once or twice a week, and on such visits slept in a room provided for him in Mrs. Hundley's home. There had been a short period during which sexual intimacy had occurred between defendant and deceased. Although this had come to an end about six months before, his social visits had continued. October 4, 1946, was an occasion of one of these visits. About 10:00 o'clock that night the deceased and defendant returned home in his automobile from a church conference which both had attended. Her mother, Mrs. Hundley, had already retired. The defendant had some business letters to write so the two went into the dining room where they occupied seats across from one another at a table. She wrote a number of letters and addressed envelopes for them while he worked on a crossword puzzle. Mrs. Frances Davis was in her bedroom in the house next door about twenty or twenty-five feet away. There was a narrow driveway between the houses. At twenty minutes to twelve she heard the sound of a shot, which seemed to come from the Hundley house. This was followed immediately by a noise like some one sobbing and crying. She then raised thewindow to find out what was the matter and heard more distinctly the same noise. A few minutes later she notified Mr. and Mrs. Saunders, in whose home she lived. Mr. Saunders and his brother walked out into the driveway between the two houses to explore the situation. They also heard a woman groaning as if in distress or suffering. The voice was in the dining room and seemed to be moving slowly toward the hallway at the front of the house. They did not go in the house, however, but walked down the street a short distance, and, seeing a light in Mrs. Hundley's room and one go on a few minutes later in defendant's bedroom, they concluded there was no serious trouble and returned home.

In the meantime defendant's mother, Mrs. Hundley, had been awakened a short time before by the opening of the downstairs door and a rushing through it of some one out into the street and a return and a shutting of the door. She was still awake when she heard a report which evidently was the shot from deceased's pistol, although she did not so identify it at the time. About the same time that the Saunders brothers were standing in the driveway, Mrs. Hundley heard her daughter struggling to get her breath and groaning in the hall downstairs. She went into the upstairs hall and looked down and saw the defendant crawling on her hands and knees and groaning, and apparently trying to get her breath. She went down and helped her up the steps, and into Mrs. Hundley's room. She proceeded to undress the defendant and, finding that her clothing was wet due to a discharge from her bladder which had occurred, she went in search of some dry clothing. In order to find it she turned on the light in defendant's room, which the Saunders brothers observed go on while they were standing in the street. She was alarmed over her daughter's condition and feared that she had been given poison as she was unable to talk and was mentally dazed. After putting her to bed Mrs. Hundley went downstairs to see if she could find the decedent, Mr. Thomas, and have him call a doctor. She discovered his body, however, lying in the dining room. This excited and frightened her. She re turned to her own room, hastily slipped on a dress and rushed over to the Saunders' home next door to summon aid. Mr. Saunders, a witness for the Commonwealth, testified that Mrs. Hundley came to his side door and called for him to open it. He asked, "What is the matter, Mrs. Hundley?", and she stated that her daughter "had come to her room and she couldn't find out a thing from her; that she was very nervous, and that Mr. Thomas had killed himself." Dr. Babb, another Commonwealth's witness, was then called and arrived at the home a short time after Mr. Saunders and his brother had come in. When the doctor arrived he was told that Mr. Thomas was dead and he could not be of any help to him, but that the defendant, Mrs. Macon, was very ill and needed his attention. He then went upstairs to Mrs. Hundley's room, where the defendant was in bed. His testimony at the trial was that he found her "out of her head, in my opinion; she couldn't answer anything, just like a person who had gone through some terrific emotion or experience; she wouldn't answer questions, couldn't say anything." He further testified that after giving her a hypodermic, in about ten minutes she was able to tell him that her throat hurt. The doctor had suspected she might have been poisoned, but an examination disclosed this was not true. He found, however, that she had four bruises on the left side of her neck and one which he presumed to be a thumb print on the right side. The pattern of these bruises corresponded to a human hand applied with a great deal of violence. Dr. Babb further testified at the trial that, while the defendant was not in a coma and was not exactly unconscious, "nevertheless, her higher centers, those things that reason things out; they were just as dead as could be." When questioned as to the effect on a person of having been choked and rendered unconscious, he said: "Choking would be just like any other condition where a person would be rendered insensible; the sphincters would relax, and if there was anything in the bladder, it would come out." Such an evacuation, he said, is a result to be ordinarily expected from a condition of unconsciousness. He also testified that thereport of a gun shot is a sufficient stimulus to restore an insensible person to consciousness. In this connection Sheriff Bell testified that on the night of the tragedy Dr. Babb told him that he, the sheriff, could not talk to the defendant; "that her throat was bruised on the inside; that she had been choked and passed out and couldn't have known anything about the shooting;" that Dr. Babb told him further "that it was a wonder the woman was alive the way she was choked." When Dr. Babb called on his patient the next morning, he found that the bruises had turned to a deep bluish color and could be very distinctly seen from across the room.

Sheriff Bell arrived on the scene about 12:30 o'clock that night and together with the Saunders brothers and Dr. Babb, made an examination of the body of the deceased and the surrounding conditions. They saw no sign of any disorder in the room, and the clothing and necktie of the deceased were in a normal undisturbed condition. One of the lenses of the defendant's eyeglasses was on the floor and another part, with the right templet, was found under the body of the deceased. He was lying on his back with one leg propped up against the table leg and was in about the middle of the room, parallel to the table. He had been shot straight through the head, the bullet having penetrated at a point just above the right ear and rested in substantially the same place just under the skin on the left side of the head. There was a powder mark about the size of a half dollar around the hole where the bullet entered. This showed the pistol was not less than two nor more than six inches away when it was fired. A pistol was found in his right hand, his thumb extending through the trigger guard and pressing against the trigger. We will consider later, in more detail, the testimony relating to the pistol.

The sheriff, having been forbidden by the doctor to see the defendant that night because of the effect of the choking, returned next morning about 10:00 o'clock and had a talk with her. She told him that she and the deceased had been sitting across the table from one another, she writing letters and he apparently working on a crossword puzzle. They did not en gage in conversation. About 11:30 she arose and said it was time for her to go to bed. Deceased then got up and came around to her side of the table, with his hands reaching out toward her. She remembered him putting his hands on her throat and that was the last thing she did remember, except a vague recollection of her mother helping her to her room. There had been no quarrel or unpleasantness at all between her and the deceased that night. She had not seen a pistol and did not know he had one with him. She did not know Mr. Thomas was dead until next morning when her mother told her. This same account of...