Pendleton v. Commonwealth

• Decision Date: 22 September 1921
• Citation: 109 S.E. 201
• Parties: PENDLETON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

109 S.E. 201

PENDLETON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 22, 1921.

Appeal from Circuit Court, Buckingham County.

Wyatt Pendleton was convicted of murder in the second degree, and he appeals. Affirmed.

The accused was indicted for the murder of the deceased, Frank Raymond Barker. The indictment is in the form of an indictment for murder at common law. There was a trial by jury. The verdict of the jury found the accused guilty of murder in the second degree, as charged in the indictment, and fixed his punishment at 10 years' confinement in the penitentiary. The trial court entered judgment and sentenced the accused accordingly.

The deceased was mortally wounded on the night of Sunday, August 29, 1920, a brightmoonlight night, by being shot in the back with buckshot from the discharge of a shotgun in the hands of the accused. The accused admits that he shot the deceased and that he did so intentionally, but claims that he did it in self-defense thinking that he was in danger at the tame of being killed by the deceased, who, as the accused testifies, "turned towards me and threw his hand to his hip pocket" just before the fatal shot was fired.

The circumstances and the material conflicts in the testimony as to the circumstances or facts leading up to the shooting were as follows: Daisy Moss, a girl of between 15 and 16 years of age, a sister of the wife of the accused, had been in the home of the accused for about five weeks prior to the shooting, the family consisting during that time of the accused, his wife, who was in delicate health, Daisy Moss, and the father of the accused. About four weeks before the shooting the deceased began to take his meals at the home of the accused as a boarder, and did so for about three weeks and up to about one week before the shooting. The accused testified that, while the deceased was taking his meals at the home of the accused, the attentions of the deceased to Daisy Moss became very marked and persistent; that several times while the deceased and the girl were sitting on the porch after supper the accused heard the girl say to the deceased that if he did not stop and behave himself she would go in the house; that on the Saturday night, which was a week and a day before the shooting, the accused looked through the window and saw the deceased and Daisy "sitting on the porch floor, with their feet on the ground; she was sitting close to one of the porch posts, and Raymond was sitting wedged up against her with his leg over both of her legs and his arm across her back;" that he (the accused) started to go out there, but his wife dissuaded him and went herself and told Daisy to come in. The accused further testified that—

"The next morning I talked it over with my father, and we decided for my father * * * to tell Barker that he must stop taking his meals there and must get some other place to take his meals as quick as he could, and that he must let Daisy alone and not visit her or go with her any more. And my father told Barker that on that day, which was Sunday morning. On the next morning, Monday, I told Barker the same thing, that he must get another place to take his meals at once, and that he must let Daisy alone and have nothing more to do with her."

The father testified that he did, on the Monday just mentioned, tell the deceased that he could not take his meals there any longer, but stated, in substance, that he did not tell the accused to let Daisy alone and not visit her or go with her any more, and did not know of his own knowledge that any one told the deceased not to go with the girl.

Daisy Moss testified, in substance, that there was nothing improper in the conduct of the deceased towards her; that she "thought he was a nice boy"; that he stopped taking his meals at the home of the accused "because I was cooking and it was too much for me."

The testimony of the accused and of other witnesses in his behalf before the jury was to the effect that the deceased was lewd in his conduct with women, having a bad general reputation in that respect, and that the accused was informed of this after the deceased began to board in his home. Whereas there was testimony for the commonwealth to the effect that the general reputation of the deceased in the particular just mentioned was good.

The accused further testified that he left home on the Monday last above mentioned and was absent for three or four days; that on his return his wife told him that in his absence the deceased had been to the home of the accused bo see Daisy; that the deceased also met Daisy at the home of Ben Pendleton, a brother of the accused, on Saturday evening, the day before the shooting, as the accused heard; that on Sunday morning, the day of the shooting, the accused was told that on the day before the deceased, while somewhat under the influence of liquor, had made statements to a companion named Charlie Jones which were to the effect that he intended to seduce and have carnal intercourse with Daisy Moss the first chance he might have. This companion of the deceased repeated these statements to the accused on the Sunday morning just mentioned before the accused and the deceased went on the trip together now to be mentioned.

Without objection on the part of the accused, the commonwealth introduced testimony to the effect that on the Sunday of the shooting the accused and the deceased, along with a number of others (the party consisting of about 10 or 12 in all), hired seats in a truck and went on a trip from Dillwyn to see the bridge across James river at Bremo, which had been damaged by high water, and this testimony tended to show that the accused and the deceased were apparently on friendly terms while on this trip. There is a reference in the dying declaration, more specifically mentioned below, which was introduced in evidence in chief for the commonwealth, to the effect that the deceased said on his deathbed that the accused had borrowed of the deceased all the money the deceased had on the day of the shooting, which the testimony of and for the accused, later introduced, developed had reference to the conduct of the accused towards the deceased on the trip just mentioned; but it was the testimony of the accused himselfwhich made a specific issue of fact before the jury concerning whether the accused borrowed any money of the deceased on such trip, the accused testifying that he borrowed money from one Wirt Hill instead of from the deceased, and that the deceased borrowed money from one Tom Maxey. Whereupon the commonwealth in rebuttal, without objection from the accused, introduced a witness who testified that the deceased "loaned" the accused "a dollar on that trip when they were returning." Thereafter Wirt Hill, and Tom Maxey were called as witnesses for the defense, the former testifying that he "loaned" the accused $1 on that trip, and both testifying that they did not see the accused borrow any money from the deceased on the trip, and "would have seen it if he had borrowed any money from him."

There was testimony for the accused tending to show that the deceased habitually carried a pistol and was a rowdy, quarrelsome, and dangerous person, and that he bore that general reputation during that last years of his life, but that he was never heard to make any threat against the accused.

Coming now to the occurrences which followed the return of the accused and the deceased from the trip to Bremo, the following is the testimony of the accused as to what transpired up to and including the shooting and his motive therefor:

"We got back about 7 or 8 o'clock, and, as I wanted something to smoke, I went to Ellis' store, and Barker also went to the store to get something to smoke. I had nothing to say to him; he went without any invitation from me to get something for himself to smoke. On the way back from the store to E. D. Gregory's office I collared Raymond Barker and told him what Charlie Jones had told me, and he did not deny it, but hung his head. I told him, 'You have those rubbers in your pocket for her now, and you have your pistol in your pocket and you are carrying for me." And I told him he must let Daisy alone and have nothing more to do with her while she was at my house, and he promised me that he would not go with her again. Then I stood on the corner of the street for a while with Charlie Jones, Ben Pendleton, Barker and others, and Daisy Moss, Frances Ranson, and Eliza Huddleston came by on their way to church. Barker spoke to them when they passed. We stayed there awhile, and Barker slipped off from us without saying anything to anybody, and, when I missed him, I believed he had gone to the church after Daisy Moss.

"I was unarmed and that he always carried a pistol and I had seen him have it in his pocket that day, and I had determined not to let him go with Daisy Moss while she was in my care. I then went home and got a single-barrel gun that I had borrowed some months before to keep the crows off the corn. I had bought four shells when I got the gun, and two of them were buckshot and two small shot; I got them that way because I just got the odd shells that Mr. Pearson had at his store so as not to break a box. I had shot three of the shells and had only one left, and that was a buckshot shell. I got this shell and the gun and started out, and my wife asked me what I was going to do with the gun, and I told her that I was not going to hurt anybody and that I would be back soon. I said I was going to keep Barker from going with Daisy to-night. I went back to my brother Ben Pendleton's house. I passed the front of the house, and Barker was sitting on the front porch. I went around to the side and looked into the window, and then went in the kitchen, where my brother was eating his supper. Barker saw me as I passed the front porch with the gun. It was only about 15 feet from the porch where he was sitting and the moon was shining. When I went into the...