McGhee v. Com., No. 780214

Docket NºNo. 780214
Citation219 Va. 560, 248 S.E.2d 808
Case DateNovember 22, 1978
CourtSupreme Court of Virginia

Page 808

248 S.E.2d 808
219 Va. 560
Opal Marie Hale McGHEE
v.
COMMONWEALTH of Virginia.
Record No. 780214.
Supreme Court of Virginia.
Nov. 22, 1978.

Page 809

John L. Gregory, III, Martinsville (Young, Kiser, Haskins, Mann, Gregory & Young, Ltd., Martinsville, on brief), for appellant.

[219 Va. 561] James T. Moore, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

HARRISON, Justice.

Opal Marie Hale McGhee was convicted of murder in the second degree and of the use of a firearm in the commission of a felony. The sole basis of her appeal is that the court below erred in refusing to grant an instruction which would have placed on the Commonwealth the burden to prove beyond all reasonable doubt that the defendant did not act in self-defense.

It is not controverted that a defendant need only sustain a plea of self-defense to the point where the evidence in support thereof, when considered along with all other evidence produced in the case, raises a reasonable doubt in the minds of the jurors regarding the guilt of the accused. Jones v. Commonwealth, 187 Va. 133, 45 S.E.2d 908 (1948); Lamb v. Commonwealth, 141 Va. 481, 126 S.E. 3 (1925). However, in this case defendant argues that the Commonwealth has the burden of disproving beyond all reasonable doubt the defendant's affirmative plea of self-defense.

Counsel for defendant cites in support of his argument Martin v. Commonwealth, 218 Va. 4, 235 S.E.2d 304 (1977). There, the defendant was found guilty of second degree murder. He claimed that his shooting of the victim was an accident. We reversed because in none of the instructions granted by the trial court was the jury told that the burden was upon the Commonwealth to prove the killing was not accidental. We concluded that the jury's verdict may have

Page 810

resulted from the mistaken belief that the burden was upon the defendant to prove the killing was an accident.

It can be safely said that in Virginia there is no principle more firmly imbedded in the body of the law, or one that has been more often stated, than the principle that in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried. This burden of proof never [219 Va. 562] shifts. As we said in Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976), "any rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon this critical issue is constitutionally infirm".

The defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense. For the Commonwealth to establish murder it must show those elements which completely negate an accidental killing, I. e., that the killing was willful, deliberate and malicious. Self-defense in Virginia is an affirmative defense, the absence of which is not an element of murder. In making this plea a defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.

The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. Accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his...

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76 practice notes
  • State v. McCullum, No. 47766-3
    • United States
    • United States State Supreme Court of Washington
    • January 6, 1983
    ...State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978); State v. Jarvi, 3 Or.App. 391, 474 P.2d 363 (1970); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 2 The court in State v. Ziegler, 19 Wash.App. 119, 575 P.2d 723 (1978), stated in relation to entrapment that the burden was on......
  • State v. Bradley, No. 68320-4.
    • United States
    • United States State Supreme Court of Washington
    • May 16, 2000
    ...by statute") (emphasis added); Virginia—Foote v. Commonwealth, 11 Va.App. 61, 396 S.E.2d 851, 856 (1990) (citing McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808, 810 (1978), law of self-defense is law of necessity, i.e., defendant must reasonably fear serious bodily harm to himself at t......
  • State v. Blanks
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 24, 1998
    ...A.2d 1018, 1021 (1982) ("defendant asserting ... self-defense ... tacitly admits the killing was intentional"); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808, 810 (1978) ("defense that a killing was accidental presents a different issue from a claim that a killing was done in Indiana ......
  • State v. Acosta, No. 49621-8
    • United States
    • United States State Supreme Court of Washington
    • May 24, 1984
    ...McCullough v. State, 520 P.2d 820 (Okla.Cr.App.1974); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978); State v. Belcher, 245 S.E.2d 161 (W.Va.1978). See generally Annot., Homicide: Modern Status of Rules as to [683 P.2d 1077] ......
  • Request a trial to view additional results
76 cases
  • State v. McCullum, No. 47766-3
    • United States
    • United States State Supreme Court of Washington
    • January 6, 1983
    ...State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195 (1978); State v. Jarvi, 3 Or.App. 391, 474 P.2d 363 (1970); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 2 The court in State v. Ziegler, 19 Wash.App. 119, 575 P.2d 723 (1978), stated in relation to entrapment that the burden was on......
  • State v. Bradley, No. 68320-4.
    • United States
    • United States State Supreme Court of Washington
    • May 16, 2000
    ...by statute") (emphasis added); Virginia—Foote v. Commonwealth, 11 Va.App. 61, 396 S.E.2d 851, 856 (1990) (citing McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808, 810 (1978), law of self-defense is law of necessity, i.e., defendant must reasonably fear serious bodily harm to himself at t......
  • State v. Blanks
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 24, 1998
    ...A.2d 1018, 1021 (1982) ("defendant asserting ... self-defense ... tacitly admits the killing was intentional"); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808, 810 (1978) ("defense that a killing was accidental presents a different issue from a claim that a killing was done in Indiana ......
  • State v. Acosta, No. 49621-8
    • United States
    • United States State Supreme Court of Washington
    • May 24, 1984
    ...McCullough v. State, 520 P.2d 820 (Okla.Cr.App.1974); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978); State v. Belcher, 245 S.E.2d 161 (W.Va.1978). See generally Annot., Homicide: Modern Status of Rules as to [683 P.2d 1077] ......
  • Request a trial to view additional results

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