Pierce v. Commonwealth

• Decision Date: 18 January 1923
• Citation: Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686, 28 A.L.R. 864 (1923)
• Parties: PIERCE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

115 S.E. 686

PIERCE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Error to Corporation Court of City of Danville.

Irvine V. Pierce was convicted of murder in the second degree, and he brings error. Reversed.

Harris & Harvey, of Danville, and John L. Lee, of Lynchburg, for plaintiff in error.

John It. Saunders, Atty. Gen., for the Commonwealth.

PRENTIS, J. Irvine V. Pierce has been convicted of murder in the second degree and sentenced to 15 years in the penitentiary. He relies upon the assignment that there was a conviction of murder in the second degree, while he claims that in no event does the evidence justify a conviction of any higher grade of homicide than involuntary manslaughter, for which the extreme punishment is confinement for 5 years in the penitentiary.

The deceased, Jones, a policeman in the city of Danville, was shot by a spring gun while in the performance of his duty under these circumstances: The accused, who kept a small store and a shop for the repair of shoes, in which no one slept, had been troubled for several years by burglars. Some small boys had been apprehended for the larceny of cigarettes about six months before the occurrence. He testified that while in the store one night, just before he set the spring gun which killed the policeman, he heard two men on the outside discussing whether they should enter and rob the store, but that, upon the suggestion of one of them that it was dangerous because some one was inside, they left. A few days thereafter he loaded and set a gun inside the street door of the building, so aimed as to fire into the body of any person who opened the door from the outside. While policemen, who were witnesses for the commonwealth, testified that before the night of the tragedy this door was usually fastened on the outside with a padlock, the accused testified that this padlock had been removed some time previously, and was then in use on the rear door of the house, while this front door was securely fastened by a Yale lock. He testified that out of regard for his own safety he had also placed a wooden button or latch on the inside of the door, nailed with a single nail, so that if on any occasion he had inadvertently failed to lock it with the Yale lock, and then undertook to enter through this door, the resistance of this button would remind him of his own danger from the spring gun. His customary method of entering the store while the spring gun was thus set was through the rear entrance, and then through a trapdoor in the floor of the store. He had complained to the police of these robberies and threatened robberies, and the evidence is clear and convincing that he knew that the policemen were on the watch to prevent their recurrence, that it was their nightly habit to patrol the street for the protection of property, and to test this front door for the specific purpose of discovering whether or not it was securely fastened. He was at his store as late as 11:30 on the night of the tragedy.

The deceased and another policeman, in the performance of their duty, were patrolling the street and trying the doors at about 3 o'clock in the morning, and his companion testified that the deceased "whirled all at once and pushed the door with his foot, and it flew open and the report of the gun sounded, and he grabbed his shoulder and staggered up the street and said, 'lie has killed me.' " The gun was loaded with shot which entered the upper left part of the chest of the deceased, and he died in a few minutes.

It was discovered that the door was not locked, the bolt of the Yale lock being held back by the catch with which. it was equipped, and if the door was then fastened at all it was held only by the wooden button, but there is no evidence other than that of the accused that there was such a button, and no other witness testified to having seen it.

It is insisted for the accused that he only did what he had the legal right to do in setting this spring gun, and hence cannot be charged with anything but inadvertence or forgetfulness and the unintentional killing of the deceased.

The trial court, to some extent, recognized this view by giving at the instance of the commonwealth instruction B in this language:

"The court instructs the jury that whether a man has a right to set a trap gun depends upon the time, place, and circumstances under which said gun is set. A man has the right to set a trap or machine to protect his person or property from a violent felony, provided the probable consequences of setting of such trap or machine is no more than he would have the right to do in person if he were present at the time of the attempt to commit said felony.

"If the jury believe from the evidence, beyond a reasonable doubt, that the defendant did setthe trap gun in such a place and in such a manner and under such circumstances as to knowingly endanger the life of innocent persons, and with a wanton and reckless indifference to the rights of others, under such circumstances as to evince a heart regardless of social duty and fatally bent on mischief, and as a result of the setting of said gun under such circumstances the deceased was shot and killed by the said trap gun, then such killing is malicious, and the defendant is guilty of murder in the second degree, and the jury should fix his punishment at confinement in the penitentiary for not less than 5 nor more than 20 years.

"If, however, the jury should not believe that the circumstances under which the defendant set the trap gun showed wanton and reckless indifference to the rights of others, but that he set it solely for the purpose of protecting his property from a violent felony, and had care for the rights of others, but was negligent in so setting said gun and in arranging the premises after setting said gun, and that as a result of said negligence the deceased came to his death by being shot with said trap gun, then they should find the defendant guilty of involuntary manslaughter, and the jury should fix his punishment at confinement in the penitentiary for not less than 1 nor more than 5 years, or in their discretion by a fine not exceeding $1,000 or confinement in jail not exceeding 1 year, or both such fine and confinement in jail."

The court also gave, at the instance of the accused, instructions 10 and 12:

"(10) The court instructs the jury that if they believe from the evidence that the defendant set the trap gun in the evidence mentioned with the intent only to protect his property against the perpetration of a felony, then such intent was lawful."

"(12) The court instructs the jury that if they believe from the evidence that the defendant was the proprietor of a storehouse in the city of Danville, Va., in which he kept things of value, that said storehouse on one or more occasions prior to the occurrence which caused the death of the deceased had been feloniously entered in the nighttime for the purpose of committing larceny therein, and that the defendant reasonably believed that it was necessary for him to set a trap gun in said storehouse for the purpose of protecting it against the perpetration of a felony, he had a right to do so, provided he exercised due and proper care in the arrangement of the said gun so as to render it safe against all persons other than a person attempting to enter the store in the nighttime by force.

"And if the jury believe from the evidence that the door to said store behind which the trap gun was set, and which was opened by the deceased at the time of his death, had been arranged on previous nights by the defendant with due regard to the safety of all persons attempting to enter there through without any felonious intent, by fastening said door on the inside with a Yale lock and a button, so that it could not be entered except by force and violence, but that on the night of the death of the deceased the defendant had inadvertently and without any evil intent overlooked, forgot, and omitted to have said Yale latch locked and the button in place so that the door could be opened without force and violence or without evil intent, then he was guilty of negligence which resulted in the death of the deceased, for which the defendant can be punished for no higher grade of offense than involuntary manslaughter."

It is unnecessary to recite the other instructions.

It is observed, therefore, from these three instructions that, while the trial court did not instruct the jury that they might find the accused guilty of murder in the first degree, it submitted to them the question as to whether he was guilty of murder in the second degree or of involuntary manslaughter.

There are cases in this state and elsewhere which have held that a killing in the protection of one's property is justifiable homicide. Those to which we have been referred are those in which there was an altercation between the parties involved and the element of personal danger also appeared. Parrish v. Commonwealth, 81 Va. 1; Stone-ham v. Commonwealth, 86 Va. 523, 10 S. E. 238.

The better rule and the modern tendency, however, are indicated in Fortune v. Commonwealth, 133 Va.—, 112 S. E. 861, which expressly disapproves the Parrish Case, and in Montgomery v. Commonwealth, 98 Va. 842, 36 S. E. 371, which was a case of trespass upon land, where the trespasser was assaulted with a deadly weapon, where this is said:

"The instruction as given contains the general rule, which is sound as an abstract proposition, that every man has the right to defend his person or property, but it ignores the well-settled and important modification of the rule that in defense of person or property one cannot, except in extreme cases, endanger human life or do great bodily harm. The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: 'When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it...