Powell v. Commonwealth

• Decision Date: 15 June 1922
• Citation: 112 S.E. 657
• Parties: POWELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

112 S.E. 657

POWELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 15, 1922.

Error to Circuit Court, Norfolk County.

Charles D. Powell was convicted of murder in the second degree, and he brings error. Reversed, and new trial granted.

The accused, Charles D. Powell, was tried for the murder of John E. Wolford. The verdict of the jury found him guilty of murder in the second degree, and fixed his punishment at 18 years in the penitentiary. The judgment under review was entered accordingly.

The accused was convicted upon the testimony of Mrs. Wolford, the widow, and Johnny Burnham, a nephew of the deceased, about 18 years of age, who were the only eyewitnesses of the homicide, other than the accused and his father. The widow and nephew testified as witnesses for the commonwealth, and their testimony agreed in practically every detail. This testimony was directly in conflict with the testimony of the accused and his father as to the motive and provocation for the shooting of the deceased by the accused. The testimony of Mrs. Wolford, with which the testimony of the nephew concurred, was to the effect: That when the accused and his father in a buggy drove up in front of the house of the deceased and stopped, the father called, saying he wanted to see the nephew. That the deceased was then in the back yard, cutting down brush with an axe, and called for the nephew, and said, "Some one wants to see Johnny." That the nephew was then sitting in the house, and got up and went out towards the father of the accused, who had by that time gotten out of the buggy, leaving the accused sitting in it, and walked up to the yard fence, somewhat to one side of the yard, and began to abuse the boy, and said he wanted to see Wolford, the deceased, and "the whole damn Wolford family." That the nephew turned off and said, "Uncle John, he wants to see you." That the deceased then came from the back yard, dragging along the axe he had been using, holding it by the end of the axe handle with his left hand and went up and stopped inside of the fence within 4 feet of where the father of the accused was on the outside of the fence, standing against the fence, with a hand on a fence post; the fence being a 5-foot chicken wire fence between them, the back of the deceased being turned, not directly, but somewhat towards the accused as he sat in the buggy, a short distance away. That thereupon the father of the accused be-gan to abuse the deceased, just as he had done the boy. That the deceased did nothing, "only leaned back on the axe as people use * * * [a] cane, " "resting on it in place of a walking stick." That after a few minutes the accused said: "Go ahead, pop; do anything, go ahead, and say anything, any damn thing you get ready; I am with you"—and thereupon pulled out a pistol, and from where he was sitting in the buggy shot the deceased in the back, whereupon the deceased fell. That witness and the nephew helped the deceased into the house. That witness asked the two Powells to leave, and they drove away together soon after the deceased had gotten in the house. That but one shot was fired, which entered the back of the deceased. That the deceased was taken to a hospital, and died that night about 1 o'clock. That the shooting occurred about midday. That the deceased did not lift the axe, as if to strike a blow, before he was shot, but was leaning back on the handle of the axe when he was shot, holding it with his left hand near the end of the handle.

The testimony of the accused and of his father was to the effect: That they were going to the blacksmith shop to have some work done on the buggy. That their route was along the road passing the home of the deceased. That as they drew near the house they saw the nephew of the deceased, at the shed at the back premises of the deceased. That the father, "feeling a little sick, " called to the boy, with the object of getting him to bring him a drink of liquor. That the boy acted as if he had hurt his hand, and, instead of coming out to the road, walked back of the dwelling house, shaking his hand. That they drove on a little past the front of the dwelling house, when the boy appeared on that side of the house, and called to them. That the buggy was then stopped, the father got out to talk quietly to the boy, telling him he wanted a drink. The father testified that he had been accustomed to buying liquor of the boy, had gotten it from him many times, six or eight times, not at this place, but the boy would bring it to him. That as witness was talking to the boy, the deceased came from behind the house with the axe held about halfway of the handle in one hand. That witness thereupon said to the boy:

"Johnny, you have got so peppery out there about the shed I reckon I can do better business with your uncle than I can with you, and you need not come."

That the deceased came right up in front of witness, who "told him that he was sick and felt like a little something to drink would do him good, " and asked the deceased if he "could accommodate him." On this subject the further testimony of the father is as follows:

"He [the deceased] says, 'I have got nothing like it.' I says, 'John, you say you haven't any?' And he said, 'I have not anything like that, and never have.' I said, 'I know you have been making whisky; I have been in 100 yards of your still there at the hogpen;' and he said, 'You are a damn liar;' and I said, 'You are another damn liar;' and he come up with his axe and said, 'I will bust your brains out;' and I threw up my hands to defend my head from the axe, and the gun [pistol] went off."

That when the deceased raised the axe the pistol fired. That the fence at that place was "staked down, " so that it was only about a foot high between him and the deceased, and that the two were only about 18 inches apart at the time the axe was raised and the shooting occurred.

The accused testified: That he did not know of any prior difficulty or untriendly feeling whatever between his father and the deceased, and was under the impression that they were on good terms. That nothing was said between the witness and his father about stopping at the home of the deceased until his father saw the nephew of the deceased. Then he heard his father speak to the deceased about a drink as the latter came up to the fence, and heard the deceased say "that he didn't have any, or had not had any." That "they had several words of that description, * * * and that when Wolford got within a very short distance of my father, * * * he told my father he would bust his brains out, or something similar." That witness was between 20 and 30 feet away, sitting in the buggy. That the deceased, with the axe, was in striking distance of the father of the witness. That witness was not close enough to have gotten to the deceased in time to have averted the threatened blow with the axe. That, therefore, when he saw the deceased raise the axe and make the threat aforesaid, he shot him, to keep him from striking his father. That this was his sole reason for the shooting. That he was on perfectly friendly terms with the deceased. He denied that he and his father had ever discussed with each other the matter of whether or not the deceased had reported to the officers that there was a still on the father's farm, and also denied that he (the accused) went to the house of the deceased the day of the homicide for the purpose of taking that matter up with the deceased. The father of the accused, on being recalled, also made a similar denial.

The accused, in his testimony on the trial, also denied that, in his examination before the judge, on application for bail, when he gave himself into the custody of the judge on the same day as the shooting, he stated that he and his father went down to Wolford's on the day of the homicide to see him about a still, saying that what he did say was the same in substance as that stated in his testimony on the trial, namely, that hisfather, "spoke to Johnny about some whisky, and this trouble came up when father told them about a still. The still was back of Mr. Wolford's place and pretty close to the hogpen."

Two near neighbors of the deceased, one living diagonally across the road from the dwelling house of the deceased, impeached the testimony of the widow and nephew for the commonwealth on the subject of the fence being 5 feet high between the deceased and the father of the accused at the place at which they were when the shooting occurred, and substantially corroborated the testimony of the accused and his father, to the effect that it was staked down very low at that place.

In rebuttal, the commonwealth introduced the deputy clerk, who testified that, on the occasion above referred to, when the accused was being examined before the judge on application for bail, the accused made the statement:

"That he and his father drove down to Wolford's upon the occasion in question to see him in regard to a still; * * * that he [Wolford] insisted on running a still back there; * * * that accused added, 'You know, your honor, we have had enough trouble about this still business;' that that was the recollection of witness what the conversation was."

Whereupon the accused introduced his two sisters, who were present on the occasion last referred to of the application for bail, who testified that the accused did not make the statement testified to by the deputy clerk, but, in substance, corroborated the testimony of the accused on that subject.

Thereupon counsel, who was assisting the attorney for the commonwealth in the prosecution of the case, stated, in the presence of the jury:

"I will ask that his honor be sworn;" the judge presiding at the trial being the same judge mentioned above to whom the application for bail aforesaid was made.

Whereupon the judge said: "I decline to be sworn." Thereupon the attorney for the commonwealth said: "I do not join in the request."

No exception on the...