McLane v. Com., 5106

• Decision Date: 10 October 1960
• Docket Number: No. 5106,5106
• Citation: 116 S.E.2d 274,202 Va. 197
• Parties: EDWARD B. McLANE v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 274

116 S.E.2d 274

202 Va. 197

EDWARD B. McLANE v. COMMONWEALTH OF VIRGINIA.

Record No. 5106.

Supreme Court of Appeals of Virginia

October 10, 1960.

Paul Whitehead (J. Frank Shepherd, on brief), for the plaintiff in error.

R. D. McIlwaine, III, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

SPRATLEY, J., delivered the opinion of the court.

Edward B. McLane, sometimes hereinafter referred to as defendant, was indicted for the first degree murder of Pelham Lewis Weakley, Jr. Upon his trial, he was convicted by a jury of murder in the second degree, his punishment fixed at ten years in the penitentiary, and he was sentenced accordingly.

McLane perfected this appeal and contends:

(1) That the trial court erred in its refusal to grant his motion for a mistrial, made when he was asked on cross-examination whether or not he had previously been convicted of a felony;

(2) That the court erred in not sustaining his objection to improper argument of the Attorney for the Commonwealth; and

(3) That the court erred in refusing to set aside the verdict of the jury because there was conclusive evidence that he was controlled by an irresistible impulse, arising from a diseased mind, at the time of the alleged offense.

The dominant issue in the case was the mental condition of the defendant prior to and at the time of the killing. However, in order to understand defendant's several contentions, it is necessary to state the evidence and incidents of the trial pertinent thereto.

On April 20, 1959, McLane shot and killed Weakley on Main street, in Lynchburg, Virginia. McLane, a barber, lived with his wife and three children in Madison Heights, near Lynchburg. His wife, Betty McLane, was employed at a manufacturing plant, and while working there she became acquainted with Weakley, a fellow employee, and a married man. Their acquaintance resulted in an immoral and illicit sexual relationship.

On January 27, 1959, nearly three months before the killing, Mrs. McLane and Weakley left Lynchburg and went to Baltimore, Maryland, and Arlington, Virginia, where they lived together several days as man and wife. On January 31, 1959, Weakley abandoned Mrs. McLane in Charlottesville, Virginia, and returned to Lynchburg. McLane went to see Weakley about the whereabouts of the former's wife, and Weakley denied any knowledge of where she was. McLane told Weakley to remain out of his family affairs. Thereafter, Mrs. McLane called her husband from Charlottesville. He went there on February 7, 1959, and they returned to their home in Madison Heights. Mrs. McLane related to her husband the details of her illicit relations with Weakley. A reconciliation was effected between Mr. and Mrs. McLane, and they reaffirmed their marriage vows by going through another marriage ceremony.

There was no communication between the McLanes and Weakley until April 20, 1959, the day of the shooting. On that day, the defendant left his barber shop and returned to his home for linch. His wife then told him that Weakley had been to their home in the morning of that day; that while she was hanging her laundry in the yard, Weakley stopped his car, called to her and requested that she 'go stepping' with him; that she refused the invitation, told Weakley to go away and leave her alone, and that she would tell her husband; and that Weakley replied that he was not afraid of anything her husband might do. Upon hearing this, McLane became upset, and returned to his barber shop. While driving back to his shop, he picked up three truant school boys, and they said he told them that if he saw the 'right man' in town he was going to kill him. About 3:00 p. m., while engaged in cutting the hair of one of his customers, McLane said that he looked out of the front door of the barber shop, and saw Weakley standing on the sidewalk, across the street, staring and scowling at him. He obtained a pistol from a cabinet in the shop, went out of the front door to an automobile in which Weakley was seated, and opened fire on him. Weakley got out of the automobile and undertook to run away. McLane fired several shots at Weakley, hitting him four times, and Weakley fell dead on the street. McLane then came up to him, grabbed him, tore his shirt, and said: 'God damn you, you son of a bitch, this is what you deserve.'

McLane walked back to the barber shop, threw his pistol against the right door of Weakley's automobile, breaking the glass, then picked up the pistol, went into the barber shop, laid it down, got in his automobile, and drove to police headquarters. There he made, at different times, somewhat different statements.

Witnesses to the shooting testified as to the conduct, appearance, and behavior of McLane at that time and subsequent thereto. Police officers testified as to statements made to them by the defendant after the shooting, and as to his appearance and behavior at that time. McLane said that he did not remember some of the details referred to.

Dr. John O. Hurt, fifty-two years of age, testified that he had practiced his profession since 1946, in the vicinity of Roanoke, Virginia, with his office in the nearby town of Vinton. He said that he graduated as a Doctor of Medicine from the University of Virginia in 1934; that he had since specialized in 'neurology and psychiatry, diseases of the nervous system;' had served a psychiatric internship at Western State Hospital, a state mental hospital, for three and one-half years and was on the staff for one year; that he was at DeJarnette's Sanatorium as resident physician eighteen months, and then clinical director of psychiatry at Lynchburg State Colony for about three and one-half years; that he then went into the United States Army; and that he was Chief of the Neuro-Psychiatric Service in California and the South Pacific for about four and one-half years, becoming Chief of the Psychiatric Staff in several Army hospitals during World War II. He first saw the defendant in his office on May 21, 1959, and then gave him an examination.

Asked a hypothetical question which summarized the evidence presented on behalf of the defendant and his witnesses, Dr. Hurt testified that, in his opinion, McLane had a diseased mind at the time he shot Weakley; that he had suffered mental stress from January to May; that his mental disease 'caused the reaction of which he had no conscious control at that time;' and that when McLane gave himself up to the police, he was 'in a state of profound mental shock and confusion,' and probably had no recollection of what took place.

It appeared that, at the commencement of the trial, when counsel were requested to list the names of their witnesses, have them brought forward to be sworn, and then removed from the courtroom until the time for them to testify, the name of Dr. Hurt was not mentioned. No objections were noted to the qualifications of the doctor as a medical expert.

During the progress of the trial, the Commonwealth's Attorney, in cross-examining the defendant, asked him the following question: 'I believe on a prior occasion you were convicted in the Circuit Court of Campbell County for malicious wounding, were you not?' Counsel for defendant promptly objected. The jury retired from the courtroom, and upon investigation it was disclosed that McLane had been indicted in Campbell County for malicious wounding, a felony, but that he had pleaded builty only to assault and battery, a misdemeanor; that he had been convicted on November 14, 1955, of the misdemeanor and sentenced to serve a year in jail and to pay a fine of $50.00. It was ordered that the sentence be suspended, upon payment of the fine and costs, and McLane be placed upon probation for three years.

The trial court asked the Commonwealth's Attorney if he wished to withdraw the question. Whereupon, the Commonwealth's Attorney said he would like to withdraw it, stating that he had been misinformed by a probation and parole officer. The jury was then returned to the courtroom, and the court gave them the following instruction:

'Gentlemen of the jury, since you retired Mr. Jester has investigated further and has asked the court leave to withdraw the question he asked the prisoner about whether he had been previously convicted of a felony so the court grants to Mr. Jester the right to withdraw that question. Now, of course, you will treat it as if that question had never been asked and in no way make any . . . whatever to the question or what the answer might have been, just completely disregard the question and all effects of such question.'

'You may proceed with the case.'

Defendant then requested permission to make a further motion 'in the absence of the jury.' The jury left the courtroom, and defendant moved for a mistrial on the ground that the question asked by the Commonwealth's Attorney was prejudicial, since it was not based on the facts and left an impression on the minds of the members of the jury, which could not be wiped out by allowing the Commonwealth's Attorney to withdraw the question. The court overruled the motion, and counsel promptly noted an exception to the ruling.

In his closing argument, the Attorney for the Commonwealth made the following statement:

'Now, the sole issue that has been thrown into your lap was what was his mental condition at the time. Now, the defendant, when he called his witnesses on yesterday and the court instructed both counsel for the Commonwealth and counsel for the defendant to read out the names of the witnesses and have them brought forward to be sworn and taken out of the court room, there was a notorious conspicuousness in the absence of the name of John O. Hurt, known as 'Dr. Hurt.' No mention was made of his name at that time. No mention was made of his name at any time during the trial of this case until this morning, as a last witness for the defendant when the Commonwealth had absolutely no opportunity...