Painter v. Com.

• Decision Date: 01 December 1969
• Citation: 171 S.E.2d 166,210 Va. 360
• Court: Virginia Supreme Court
• Parties: Henry Boyd PAINTER v. COMMONWEALTH of Virginia.

Page 166

171 S.E.2d 166

210 Va. 360

Henry Boyd PAINTER v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Dec. 1, 1969.

Humes J. Franklin, Jr., Waynesboro (Gordon W. Poindexter, Jr., Waynesboro, on brief), for plaintiff in error.

W. Luke Witt, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Reno S. Harp, III, Asst. Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

HARRISON, Justice.

Henry Boyd Painter was convicted of the murder of his wife, Vallie Mae Simmons Painter, on May 1, 1968, and his punishment fixed at fifty years confinement in the penitentiary. From the judgment of the lower court sentencing the accused in accordance with the jury verdict, we granted defendant a writ of error.

The questions pertinent to this decision concern the failure of the trial court to grant instructions on second degree murder and provocation. Defendant also complains of the action of the trial court in refusing to admit certain medical evidence he alleges was consistent with his defense of provocation.

The facts are not in serious controversy. Defendant and his wife were married in September, 1960, and at the time of the homicide had three daughters, ages seven, six and five. The parties had experienced marital difficulties, and there was evidence that Mrs. Painter took trips to Atlantic City and Canada with another man prior to her separation from defendant.

On November 30, 1967, defendant suspected that his wife was out again with this same man. His testimony is that she arrived home about 11 P.M. and had been drinking. When he remonstrated with her she started cursing, and a fight ensued. Following this altercation, Mrs. Painter obtained a warrant for the arrest of defendant. She left their home on December 1, 1967 and moved to the home of her mother, taking the three children with her.

During the month of December, defendant had conferences with the Superintendent of Welfare of Waynesboro regarding his marital difficulties. He also conferred with his wife in regard to support. This was in the presence of an attorney. He stated that he talked to his wife over the phone about seeing the children, and on one occasion saw his oldest child at school. Apparently he had no other contact with his wife and children.

Prior to Christmas 1967, defendant purchased presents for the children and attempted to deliver them in person on Christmas Day. When defendant took the presents to the home of Mrs. Simmons, his mother-in-law, and asked if he could see his children, she called defendant's wife to the door. Painter testified that his wife told him that he was not going to see the children; and that he could put the presents on the porch and she would deliver them. He responded that he would take the presents back home and give them to the girls later. He also said that when he asked to see the children, his wife told him: '(H)ell no, I wasn't never going to see them no more, you no good son of a bitch.'

Defendant then returned to his mother's home, where he spent the night. The evidence is that he was in a distraught condition, upset, crying and sobbing. Members of his family testified that he sat up most of the night on a couch in the living room and that his sobbing was audible on the second floor of the house.

On the following morning, December 26th, Painter refused to eat breakfast and left the house upset and crying. He went to Waynesboro, allegedly to transact some business and run an errand for his mother. His testimony is that en route to Waynesboro he decided to stop by W. T. Grant Company, where his wife was employed, and ask her if she would bring the children up to his mother's house so that he could see them. He pulled in the parking lot and waited until his wife drove in. He testified that he asked his wife if 'she would bring the babies to my mother's or up to the house in Stuart Draft after she got off of work so I could see them. I wanted to see them. She refused me'. Defendant said his wife told him: '(H)ell no, you no good, low down, son of a bitch, you ain't never going to see them no more'.

Defendant stated that he started his truck and drove off, but then, in his words: 'I stopped my truck and got out of it with the shotgun, I don't know what happened. The next thing I knew I was with the police up there.'

The homicide was witnessed by Louise Brown, who worked in the same shopping center as did Mrs. Painter. When Mrs. Brown drove up to the parking lot, she noticed defendant sitting in his truck and that Mrs. Painter was getting out of her car. She said that defendant had his window rolled down, and it seemed he was trying to talk to his wife. She said Mrs. Painter walked on and 'did not pay no attention to him'. Witness proceeded to park her vehicle beside Mrs. Painter's car, and in just a few seconds she heard a loud blast that sounded like a gunshot. She looked back and saw Mrs. Painter's body lying on the hard surface and defendant standing there with a gun. Witness then lay down in the seat for fear defendant might shoot toward her 'because he knew that I had just pulled in there'. When she looked up, she saw defendant raise the gun toward Mrs. Painter's body, and there was another shot. She estimated that defendant was from eight to ten feet from his wife at the time.

Melvin Adkins, also an employee of the W. T. Grant Company, upon hearing a report that a lady had been shot, went outside and saw Mrs. Painter lying face down on the hard surface. He testified that he saw defendant standing over by a truck; that defendant was holding a shotgun in his hand, which Adkins took from him; and that they stood and waited there for the police to come. Defendant told Adkins that the person shot was his wife and that he killed her. The 12-gauge gun and shells used in the homicide were introduced in evidence. Mrs. Painter died as a result of gunshot wounds.

Here we have a homicide committed with a background of marital discord, resulting in the separation of the parties and the wife taking possession of their children.

During the 26 days they lived apart, defendant became very emotional and was constantly upset and nervous. The testimony is that he lost about fourteen pounds in weight, and his distress was manifested by vomiting and frequent spells of crying and sobbing. He would sit by the window hoping his wife would drive by and he could get a glimpse of the children.

The culmination approached on Christmas Day when he was unable to see his children or deliver the presents that he had purchased for them. If the evidence of the defense is to be believed, he remained awake sobbing the night of December 25th.

It was on the following morning, December 26th, when he again was rebuffed by his wife in his effort to see the children, that the homicide occurred.

The Commonwealth admits that provocation, if it is of sufficient severity, can be offered as an extenuating circumstance. However, it contends the evidence that Mrs. Painter used abusive language to her husband comes only from the defendant himself, and, in any event, that this was not new to Painter--'He had heard it all before.'

It is true that words alone would not be sufficient provocation to excuse a murder. However, we are not dealing here with excuse of, or justification for, murder. We are concerned in this case only with the grade or degree of homicide, and whether the evidence was so clear and uncontroverted that only an instruction on first degree murder was proper; or, whether the evidence was such that the jury should have passed upon its sufficiency to establish the wilful, deliberate and premeditated character of defendant's act.

The indictment returned by the grand jury was in the short form as allowed by Code Section 19.1--166. It charged that defendant did feloniously and maliciously kill and murder his wife. Degrees of murder in Virginia are defined by Virginia Code Section 18.1--21 as follows: 'Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, abduction as defined in § 18.1-- 38, arson, rape, robbery or burglary is murder of the first degree. All other murder is murder of the second degree.'

One of the earlier expressions by this court on the distinction between the two degrees of murder is found in McDaniel v. Commonwealth, 77 Va. 281, 283, 284 (1883), where the court said:

'I proceed to state as briefly as I can some general doctrines of the law of homicide, which will, I think, materially assist us in arriving at a correct conclusion upon this point. Every homicide under our statute is Prima facie, a case of murder in the second degree. And it is incumbent upon the commonwealth in a case like the present, where the offence was not committed by any of the specific means enumerated in the statute, that is 'by poison, lying in wait, imprisonment or starving, nor (sic) in the commission of or attempt to commit arson, rape, robbery or burglary,' in order to elevate it to murder in the first degree, to prove by evidence, either direct or circumstantial, beyond rational doubt, that the killing was 'wilful, deliberate and...