Martin v. Commonwealth

• Decision Date: 04 March 1946
• Citation: Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43 (1946)
• Court: Virginia Supreme Court
• Parties: MARTIN. v. COMMONWEALTH.

37 S.E.2d 43

184 Va. 1009

MARTIN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 4, 1946.

Error from Circuit Court, Fredericksburg; Leon M. Bazile, Judge.

Frances M. Martin was convicted of second-degree murder, and she brings error. Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

William W. Butzner and DuVal Q. Hicks, Jr., both of Fredericksburg, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

The plaintiff in error, Frances M. Martin, was indicted for the murder of her husband, Everett H. Martin. She was tried by a jury and found guilty of murder in the second degree, and her punishment fixed at fifteen years in the penitentiary.

The facts are not in dispute and, stripped of unessential details, may be summarized as follows:

Mrs. Martin and her husband, with their infant child, lived in an humbly furnished dwelling in the city of Fredericksburg, Virginia, consisting of two rooms and a hall on the second floor and two rooms and a hall on the first floor. Mr. and Mrs. L. L. Light rented and occupied one of the bedrooms on the second floor and used the kitchen facilities on the first floor with the Martins.

In the forenoon of March 9, 1945, the day of the homicide, some unpleasant words were passed between Mr. and Mrs. Martin relative to Mrs. Martin's desire to have her husband wash or paint a kitchen shelf. After dining together in the evening, and after Martin had smoked a cigarette, he got some hot water from his wife and washed the shelf. Subsequently Mrs. Martin put her infant son to bed. She and her husband then went out together for the purpose of borrowing a dollar to go to a moving picture show. They were unable to borrow the money, and after talking with some friends and declining an invitation to go to a friend's house for a drink, they returned home. In their quarters at the home, they found Mr. and Mrs. Light and Henry G. Burnett. Each of these persons took a drink of liquor. Martin turned on the radio, and danced with his wife, both apparently in a gay and friendly humor. Every one then had another drink, and Martin and his wife danced together again. When the music stopped, Mrs. Martin and her husband sat on a cot in the room and Martin lay partly across her lap, and the two engaged in conversation. None of the other persons was attracted by their conversation, except to some words with reference to a red-headed woman. No one suspected any trouble between them until Martin suddenly left the room after Mrs. Martin said, "If I had a gun, I would kill you." Martin replied, "I don't believe you would shoot me." He then went upstairs and returned to the room with a gun. Up to this time, each of the other parties present still thought that the conversation was in a spirit of fun. All of the parties agree that no one had become intoxicated. However, when Martin returned with the shotgun and gave it to his wife, Mrs. Martin asked her husband, "How do you open this thing?" Light then went out to the hall, his wife remaining in the room. In response to Mrs. Martin's question, her husband opened the gun and gave her a shell. She put the shell in the gun and closed it. Almost immediately thereafter there was an explosion from the gun in the hands of Mrs. Martin, and her husband fell to the floor and died in a few moments.

An examination of his body showed that the shot was fired into the body of the deceased at close range. There was a wound on the left side of the body just below the heart and powder burns on his outer clothing. He died from internal hemorrhage and shock.

During the examination of A. G. Kendall, superintendent of police of the city of Fredericksburg, he undertook to describe the powder burns on the sweater worn by the deceased. In this connection, the Commonwealth, over the objection of the defendant, offered in evidence a photograph of the deceased's body showing the body from the chin to the knee. This photograph, taken a few minutes after the deceased was shot and before his body was moved, showed a powder burn on the sweater and a hole made by the shot.

Mrs. Martin did not testify; but in her voluntary written confession made shortly after the killing, she made the following statement to a police officer:

"When we got home which was about 9:20 P. M. we found Mr. Burnett with Mrs. Light and they asked us to have a drink. Mr. Burnett had a pint of Paul Jones whiskey. Everett and I had a drink and Everett turned on the radio and he and I started to dance. We danced for a while and Mr. Light came in. Mr. Light was asked to have a drink and we all had another drink. Everett and I started to dance again. We drank the pint of Paul Jones and Mr. Burnett and Mr. Light went out and got a fifth of whiskey, I don't know what brand it was as I didn't notice. Everett and I sat on a cot we use as a day bed in the front room side by side and he began accusing me of running with other men. I told him he had no reason to say anything as he was doing as much as I have ever done. I said 'You are running with a woman who is living with her husband and has six children right now.' He got mad and called me a goddam common bitch and a goddam common hore. I said: 'Everett, I have stood as much as I can stand, shut up.' He kept fussing, I don't know just exactly what he said. I asked him again to please shut up that I couldn't stand any more. I said, 'So help me God if I had a gun I would shoot you.' He said: 'Goddam you, you'll have a gun, ' or words to that effect. I don't recall his exact words. Without another word he rushed upstairs. I lost complete control of myself. I asked those in the room to leave. No one left except Mr. Light and as he left the room Everett came in with a 16 gauge single barrel shot gun and handed it to me. I did'ent know how to open the gun so Everett showed me how, in fact he opened the gun for me and handed me a shell, I knew the gun was not loaded because it was not kept loaded. I put the shell in the gun and closed it. Everett started to saying 'shoot me, goddam you shoot me.' He walked to within six inches of the barrel. I did'ent realize what I had done until I heard the sound of the gun. Everett fell on the floor and I threw the gun beside him and rushed over to the home of Mrs. Seay who lives across the street from me and I called the police. I went back " ome and got my baby. * * * I regret what I have done for only one reason, I have broke God's commandments, 'Thou Shalt Not Kill.'

"I had about four or five drinks from about 9:30 P. M. up to the time I shot my husband but I was not drunk."

At the request of the Commonwealth, the court gave, without objection, several instructions, which exhaustively and comprehensively defined murder in the first and second degree, voluntary and involuntary manslaughter, and assault, and distinguished the requirements as to each.

At the request of the defendant, the court also gave a number of instructions, including the following:

"That in order for the killing to amount to murder in the first degree it must involve on the part of the prisoner wilfulness, deliberation and premeditation, with malice aforethought, and if the Commonwealth has not proved such beyond all reasonable doubt, then the prisoner cannot be guilty of that crime.

"That in order for the killing to amount to murder in the second degree, it must involve on the part of the prisoner malice, though not necessarily wilfulness, deliberation and premeditation. If the Commonwealth has not proved such beyond all reasonable doubt, then the prisoner is not guilty of that crime.

"That in order for the killing to amount to voluntary manslaughter, such killing must involve on the part of the prisoner an intentional act, but without malice, such as upon sudden heat of passion, and if the Commonwealth has not proved such beyond all reasonable doubt, then the prisoner cannot be guilty of that crime.

"That in order for the killing to amount to involuntary manslaughter, it must involve on the part of the prisoner a killing, contrary to intention, in the prosecution of some unlawful but not felonious act, or in the improper performance of a lawful act. If the Commonwealth has not proved such beyond all reasonable doubt, then the prisoner cannot be guilty of that crime.

"The Court instructs the jury that the burden is upon the Commonwealth to prove beyond all reasonable doubt every fact or circumstance necessary to convict the accused, Frances M. Martin, of the offense with which she is charged; and if they have any reasonable doubt as to any fact or circumstance necessary to convict the accused, Frances M. Martin, as aforesaid, they are bound to give her the benefit of such doubt and find her not guilty; and the Court tells the jury that a reasonable doubt is,

" 'That state of the case which, after the entire comparison and consideration of all of the evidence leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge.' "

After hearing the argument of counsel and deliberating for sometime, the jury returned to the courtroom and requested the trial judge to instruct them as to the meaning of the word "malice." Counsel for the defendant objected to the giving of any instruction on "malice, " contending that "malice" was not capable of definition, and moved the court to so tell the jury or to refuse to answer their question. The court overruled the motion and thereafter gave the following written instruction:

"The Court instructs the jury that the malice necessary to constitute the crime of murder may be either express or implied. The word 'malice' in the foregoing definitions of murder is used in a technical sense, and includes not only anger, hatred and revenge, but every unlawful and unjustifiable motive. It is not confined to ill will to any one or...