Perkins v. Commonwealth

• Decision Date: 13 October 1947
• Citation: 186 Va. 867,44 S.E.2d 426
• Parties: PERKINS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

186 Va. 867

44 S.E.2d 426

PERKINS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 13, 1947.

that he was in imminent danger of great bodily harm, but whether he had reasonable ground to believe that he was in such danger.

Error to Corporation Court of City of Norfolk, Part 2; J. Hume Taylor, Judge.

Albert Woodley Perkins was convicted of voluntary manslaughter, and he brings error.

Judgment reversed and case remanded.

Before HUDGINS, C. J. ^* and GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.

Broudy & Broudy, and J. Eugene Diggs, all of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Henry T. Wickham, of Richmond, for the Commonwealth.

EGGLESTON, Justice.

Albert Woodley Perkins, a Negro, was indicted for the murder of Forest R. Briese, an enlisted man in the United States Navy. He was tried by a jury, convicted of voluntary manslaughter, and his punishment fixed at three years in the penitentiary. To review the judgment entered upon that verdict the present writ of error has been allowed.

At the time of the alleged offense the accused was employed as a waiter in a petty officers' club on Boush street, in the business district of the city of Norfolk. His duties required that he remain at the club until after midnight. For his protection he had procured from the proper authorities a permit to carry a pistol.

About one o'clock in the morning of July 30, 1946, Perkins left the club for his home, on Charlotte street, some seven blocks from the place of his employment. He walked northwardly along Boush street, thence eastwardly along Freemason street, across Granby street, on which are located the principal retail stores in the city, and across Monticello avenue and Brewer street toward Bank street. Bank street runs north and south and intersects Charlotte street near Perkins' home.

J. E. Stevenson, a taxicab driver, the principal witness for the Commonwealth, gave this version of the shooting: While he was seated in his taxicab which was parked on the south side of Freemason street, headed eastwardly toward Bank street, he heard an argument between two men on the left and to the rear of his cab. Upon getting out of the cab he saw Perkins walking eastwardly along the north side of Freemason street toward Bank street. Briese was following Perkins, but was on the opposite or southern side of Freemason street. Stevenson said he heard Briese say to Perkins: "Give it back to me and everything will be all right, " to which Perkins replied: "I won't give it back, " or words to that effect. Upon closer observation Stevenson saw that Perkins had a pistol in his hand. Perkins then reversed his course and began to walk rapidly westwardly toward Brewer street. Briese followed, repeating his request: "Give it back to me, " to which Perkins again replied, refusing to do so. The couple disappeared around the corner, Perkins going northwardly along the eastern side of Brewer street, followed by Briese. Stevenson followed at a safe distance. Perkins then ran up on the porch of premises number 422 Brewer street, where he rang the bell and knocked on the door, apparently in the effort to arouse the occupants of the house.

It later developed that the house to which Perkins sought admittance was occupied by the Jarvis family who were intimate friends of his. Although the occupants heard the noise and commotion on the porch, they did not respond immediately.

In the meantime Briese started up the steps toward Perkins who stood on the porch with the pistol in his hand. Despite Stevenson's warning, Briese proceeded up the steps, again saying to Perkins: "Give it back to me and everything is going to be all right." Perkins' reply was: "Don't come up these steps or I will shoot you. Don't take another step." Briese replied: "You won't shoot me. I am a customer ofyours, " and continued up the steps, holding' out his hand toward Perkins and saying: "Give it back to me." When Briese reached the top step Perkins fired two shots and Briese slumped to the floor of the porch, mortally wounded. Perkins ran from the scene.

Perkins' account of what took place is substantially this: As he was walking along Freemason street, between Granby street and Monticello avenue, he was accosted by Briese who inquired: "Where is a good hotel?" to which he (Perkins) replied: "I don't know no hotel, " and proceeded on his way. Briese followed him, insisting: "Say, Nigger, Nigger, where in hell is a good hotel?" Perkins made no reply but increased his pace along Freemason street, across Brewer street, toward Bank street. As he approached the intersection of Freemason and Bank streets the sailor, who had continued to follow him, was joined by Stevenson, the taxicab driver. When the two men closed in on him, Perkins turned and ran westwardly along Freemason street and around the corner of Brewer street to the Jarvis porch, with the two men in pursuit. Being unable to arouse his friends by ringing the bell and knocking on the door, he pointed the pistol at Briese, the nearest of his pursuers, warning him: "Don't come up here or I will shoot; don't come up here or I will shoot." Briese started up the steps, saying: "Nigger, give me that pistol; don't I will kill you." Despite his (Perkins') repeated warnings, Briese continued up the steps and struck him (Perkins). Whereupon he (Perkins) fired the two fatal shots.

Perkins insisted that he had had no prior dealings of any character with Briese; that he had previously seen neither Briese nor Stevenson, the taxicab driver; and that when they pursued him he thought that they intended either to beat or rob him.

The evidence further shows that Perkins is fifty-five years of age, of slight build, and weighs only 135 pounds. Briese was a large man, thirty years of age, over six feet in height, and weighing about 185 pounds.

There is no merit, we think, in the contention that the verdict finding the accused guilty of voluntary manslaughter is not supported by the evidence, and that this is a case of justifiable homicide requiring the acquittal of the accused.

According to the Commonwealth's evidence, which the jury has accepted, there was nothing to warrant the accused in apprehending that he was in danger of death or great bodily harm at the hands of Briese. Briese committed no overt act to indicate this. He was unarmed. He did not strike the accused or threaten violence to him.

It is plain from the conversation which took place between the parties, as detailed by Stevenson, that Briese thought, as the result of some transaction which he had had with the accused, that the latter was withholding from him (Briese) something to which he (Briese) was entitled. According to Stevenson's story, Briese was not undertaking to maintain his rights by force'. On the contrary, Briese was supplicating or begging in a friendly manner for the return of that to which he thought he was entitled.

It is true that the accused may have misunderstood and feared Briese's motive and intent, but bare fear of injury at the hands of another, in the absence of some overt act indicative of imminent danger at that time, will not justify the taking of human life. Stoneman v....