McClung v. Com.

• Decision Date: 10 March 1975
• Citation: 215 Va. 654,212 S.E.2d 290
• Parties: Mary Louise McCLUNG v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 290

212 S.E.2d 290

215 Va. 654

Mary Louise McCLUNG v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 10, 1975.

Fred A. Talbot, Portsmouth (James A. Baber, III, Bremner, Byrne & Baber, Richmond, on brief), for plaintiff-in-error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant-in-error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

The trial court entered judgment on the jury's verdict convicting Mary Louise McClung of murder in the second degree and sentencing her to five years in the penitentiary. The jury heard instructions on first degree murder, second degree murder, and self-defense. The sole question before us is whether the trial court erred in refusing to grant an instruction on voluntary manslaughter requested by the defendant.

Defendant testified that she and her 'boss', Richard Davis, had been engaged to be married for approximately two years; that Davis had struck her during public quarrels; that twice he had beaten her so severely that she required emergency hospital treatment; that he became violent when he had been drinking; that he had forced her to have sexual relations which she found distasteful; and that she had sought legal advice as to how she could restrain him from harassing her. Learning that Davis had been 'dating' another woman, defendant terminated the engagement in February, 1972.

Defendant testified that she decided to resign her job effective May 11, 1972. At the close of working hours that day, she returned to her apartment. Between 8:30 and 9:00 p.m., Davis entered through her front door. She said that the door had been locked and that she had not given him a key. Davis, who had been drinking, told her that he wanted to talk with her. She told him to leave. He said that he had come to make love to her and he intended to do so. When she refused, David seized her. As she struggled to break away, Davis grabbed her 'amount (her) legs and arms' and dragged her to the foot of the stairs leading to her bedroom. Defendant could recall nothing from that moment until she was placed in a police car.

Defendant's next door neighbor testified that, while watching a comedy program televised between 8:00 and 9:00 p.m., he heard gun shots. In less than three minutes, defendant appeared at his door and told him that 'she needed to come in and call the police, she had just shot a man, or words to that effect.' The neighbor said that defendant was wearing a dark dress, that he saw no marks or bruises on her body, that her hair was 'neatly in place', and that 'she didn't look like that she had been involved in any type of tussle to me, but I wasn't specifically looking for any hints that there was a tussle.' He further testified that she attempted unsuccessfully to reach an attorney by telephone, and that she told him that the man she had shot was her 'boss' who had been 'harassing (her) for a long time'.

In response to the neighbor's telephone call, the first of three investigating officers arrived at 9:20 p.m. Davis's nude corpse was found lying on its back on defendant's bed. Two bullets had entered the body. A third had penetrated the pillow and mattress. A fourth had struck the wall above the bed. The absence of powder burns and the trajectories of the bullets indicated that all had been fired from a position near the bedroom door approximately eight feet from the body. Photographic exhibits showed some of Davis's clothing on a chair and some on the floor and his glasses on a bedside table. They also showed a woman's clothing on the floor. Following the defendant's directions, the officers found the pistol in a closet located in the hallway between the bedroom and a bathroom.

A gunsmith testified that the defendant bought the pistol on April 15, 1972; that she test-fired it in the range in his basement; that she handled it 'in a safe manner and very good for a woman'; and that 'she hit the target just about every time she fired.' Defendant explained that she bought the gun after she discovered 'that any one with a key to any other apartment in the project could enter any apartment he so choosed and I felt that it was no longer safe for me to live alone in that particular area.'

Defendant further testified that the dress she was wearing when arrested was the same dress she had worn to work that day. She said that she did not notice whether it had been torn in the struggle, but if so it could have been mended by the laundress before she worn it again.

On appeal, the defendant concedes that the evidence viewed in the light most favorable to the Commonwealth was sufficient to support the jury's verdict. However, she argues that the evidence was also sufficient to support an instruction on voluntary manslaughter.

The Commonwealth concedes that there was some evidence of provocation but contends that there was no evidence that the provocation in fact engendered passion and no evidence that the...