Mosby v. Commonwealth

• Decision Date: 11 March 1937
• Citation: Mosby v. Commonwealth, 168 Va. 688, 190 S.E. 152 (1937)
• Parties: MOSBY . v. COMMONWEALTH.
• Court: Virginia Supreme Court

190 S.E. 152

MOSBY .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 11, 1937.

Error to Circuit Court, Campbell County; Don P. Halsey, Judge.

Willie Mosby was convicted of first-degree murder, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

R. I. Overbey, of Rustburg, for plaintiff in error.

A. P. Staples, Atty. Gen., Edwin H. Gibson, Asst. Atty. Gen., and Joseph L. Kelly, Jr., and Ralph H. Ferrell, Jr., both of Richmond, for the Commonwealth.

HOLT, Justice.

On the evening of February 18, 1936, Willie Mosby shot and killed Alexander Hubbard.He has been tried, found guilty of first-degree murder, and sentenced to forty years confinement in the state penitentiary.

On familiar principles, we look primarily to that evidence which tends to sustain this conviction.Sam McKeever and Rosa, his wife, lived near Brookneal, in Campbell county.At their home on this evening were gathered the accused, the decedent, Mack McKeever, and Jesse Forest, all colored.Nearby was the Mosby home from which he had come an hour or two before trouble began.During this time these people sat about a fire in the McKeever living room, all apparently on friendly terms.The party then broke up.Hubbard said he believed he would go home.Mosby then spoke up, "What's that you say you are going to do to me for giving Annie a chew of tobacco?"To this Hubbard in substance replied that he meant what he had said and that they would fight it out.Both men stood up.Rosa McKeever told them that they could not fight in her house.Mosby started out of the room when Hubbard called out, "God damn you, nigger, I'll come out there and kill you, " and probably continued to curse him.When Mosby left the room, he shut the door, soon afterwards he opened it, said, "Quit Woofing at me, " which means "talking back, " and shot once.The bullet struck Hubbard in his right eye, killing him instantly.

At the time he was shot he was still cursing and had one hand in his hip or overall jacket pocket, but he was standing still three or four steps from the open door and fell with his head in the kitchen and his feet in the living room.Estimates vary as to the time which passed after Mosby went out and closed the door before he opened it again.One witness thought it was about a second, another that it was probably not more than two minutes.In any event, there was an appreciable lapse of time, but it was short, and Mosby on the outside must have heard Hubbard still cursing for, as we have seen, he opened the door and at the same time cried out, "Quit Woofing at me, " and shot.But this pregnant fact remains; he had gone out of the room and shut the door, after which he opened it and shot Hubbard, who neither at that time nor at any other time was advancing upon him.

Mosby tells us that, "I went out and pulled the door behind me, and then the door flew open and I thought it was him and I shot."He further contends that he did not intend to shoot Hubbard at all, but was himself scared and shot to frighten him.In short, he contends that this shot resulted in an unintended accident.

In Hubbard's jacket pocket was found an unopened pocket knife with a four-inch blade.As we have seen, Mosby had a pistol.The reasons he gives for taking it to the McKeever home are not satisfactory.He tells us that not long before some one came to the back door of his house and tried to get in, and so he procured a pistol and took it with him to McKeever's because "if I saw anybody there when I come home I would have something."

These two men were on unfriendly terms.Mosby had given Hubbard's wife some tobacco and this bit of attention Hubbard resented.As we have seen, Hubbard had made threats, and when the party was breaking up, Mosby brought the subject up; "I said what's that youare going to do to me for giving Annie a chew of tobacco?"Trouble in view of this might well have been expected, and it is highly probable that in its anticipation Mosby had gone armed.

Does this evidence support the verdict?Plainly self-defense cannot be relied upon to excuse or justify the killing.When Mosby opened this door and shot, Hubbard was standing still, three or four steps away.He had made threats and he was cursing, but no overt act was in evidence, beyond the fact that he was standing nine to twelve feet away with a hand in his pocket.If we were to concede that Mosby ever had any reason to believe that he was in danger, plainly he had reached a place of complete safety when he went out of the room and shut the door.Moreover, he himself tells us that he shot to scare Hubbard and killed him by accident.

The most that can be said by way of excuse is that while he stood outside of a shut door, he could still hear Hubbard cursing him, but plainly that is not enough.Profanity may explain a sudden broil and on this subject the jury was properly instructed, but beyond this it can neither palliate, excuse, nor justify the homicide.This is doubly true where the accused is the aggressor and provoked the difficulty.

Was there an accident, and what responsibility follows an accident in such circumstances?This was an ordinary living room in which there were five people.He who knew this and who recklessly shot into it must abide the consequences.

If one, without more, in utter recklessness throws a timber from some housetop into a crowded street and death results, that is common-law murder, made with us murder in the second degree by statute.Whiteford v. Commonwealth, 6 Rand. (27 Va.) 721, 18 Am.Dec. 771;Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686, 28 A.L.R. 864....