Presley v. Commonwealth

• Decision Date: 10 June 1946
• Citation: 38 S.E.2d 476,185 Va. 261
• Parties: PRESLEY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

185 Va. 261

38 S.E.2d 476

PRESLEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 10, 1946.

Error to Circuit Court, Buchanan County; Alfred A. Skeen, Judge.

Barney Presley was convicted of second-degree murder, and he brings error.

Reversed and remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

F. H. Combs, of Grundy, for plaintiff in error.

Abram P. Staples, Atty. Gen., and W. Carrington Thompson, Asst. Atty. Gen., for the Commonwealth.

HOLT, Justice.

The defendant, Barney Presley, stands charged with murder, and was convicted of second degree murder and sentenced to ten years confinement in the penitentiary. He has applied to this Court for and has been granted a writ of error.

On Sunday, August 5, 1945, he shot and killed Walter Crouse on a public road in Buchanan County. Both of these men are married and both of them have children and each lived in a mountain section of that county. Crouse worked for a lumber company across the border in Kentucky. Presley was a carpenter of sorts and owned and operated for hire a small or pick-up truck, taking freight as he found it.

In February 1944, Crouse employed Presley to build a house for him, and this contractor finished that work in September following. Since Crouse did not live at home, the arrangement was that Mrs. Crouse would do the buying and pay for it. For these reasons she usually rode with the defendant. Something like eighteen or twenty trips were made. On most of them they were accompanied by others, sometimes members of her family, sometimes members of his. Once or twice she rode alone with him in the truck's cab. On one occasion they met by chance in the hospital. On another they took dinner together in a hotel with a friend. Once they had pictures taken by the same photographer but not together. Unquestionably they were on friendly terms, but there is not a line of evidence that would indicate improper relations. There was, however, neighborhood gossip, which came to Crouse's ears.

While this work was in progress Presley bought from Crouse's son, who was under age, an automobile. This transaction irritated Crouse who thought that Presley had over-reached his son in the bargain. He was irritated and so expressed himself, the net result of which was that this trade fell through. Crouse did not pay Presley in full for his work, though he had promised several times to do it. Presley, on his part, was on the lookout for Crouse in order to collect his debt. They met by chance in the public road and this is Presley's account of what then occurred:

"The morning this trouble happened I went up to Mr. Leftwich's, I had been working for him * * * and as I came back down the road from Mr. Leftwich's and was getting out almost to the main road, hardsurfaced road, and there is a stiff curve, bushes not cut off, I expect I was making 15 miles, I was slowing down, because there was a sign there, slow down, I was always very careful, I never had an accident in an automobile in my life, and as I came around there, he (Crouse) was going from the right hand side of the road and run across the road--well, he didn't run, but walked fast, and when he got over on to the left hand side, he throwed his right hand in his pocket and threw his left leg out, and I slowed down and before I stopped, he throwed his hand up and grabbed that little mirror, and went two or three steps before I got stopped.

"Q. 31 Was he drinking? A. I really thought he was drunk, he seemed to be very wrong some way or another, and the first thing he said when he threw his hand on the glass, and stepped two or three steps, as the car came to a stop, he says, 'I want to see you a minute'.

"Q. 32 Did you have your glass down? A. Yes, sir, and when I stopped he took his hand down off the glass, and when I stopped, I just placed my hand up at the back of my head that way (indicating) and looked down at him, and I could see the bead on it (his pistol), the way he was holding it, and he says, 'God-damn you, I want to know how much it is I owe you, ' and I said, 'I don't know, Walt, just how much it is, I have it down, it is about $50.00, ' and he said, 'God-damn you to hell, I heard you were going to law me, ' and I says, 'I guess you have, ' and he said, 'Goddamn you to hell, I will just put an end to you right now, ' and I had my gun lying on the seat beside me, and I grabbed it and brought it up and shot as I went over that way, and I started to pull out, and I thought of his feet and I looked to see where his feet were, and they were about that far (indicating) from the wheel of the truck, and about the time I started to pull out, I saw these boys at the side of the road, I went on down and hollowed to the boys, had to hollow twice before I got them to hear, I didn't see any more men folks, I stopped and halloed at Iv Compton the second time and I said, 'I have shot Walter Crouse up their, ' and I said, 'Run up there and see if you can do something for him, ' and I went on home and later we came on down to Grundy to F. W. Smith's.' " "A. He was standing facing me and with his hand on the truck that way, and when he said, 'I will put a God-damned end to you, ' and started to jerk his gun that way, I flashed my eye down and got my gun."

Ira Hale, a deputy sheriff, was among the first to reach the body. This is what he saw: "Well, he was lying there and the gun sticking out here like that and they tied a string through the guard of the gun, I thought it looked like it had been stuck in his pocket, was the reason we did that, thought we might need finger prints, and we didn't want to hand it around."

Mr. Compton also saw the body. The barrel was in Crouse's pocket, but the handle and cylinder were outside. Crouse was shot three times, once in the neck, once near the left elbow and once on his left side.

John Kean had a country store. Oscar Kean came up to it and told him of the tragedy. About two weeks before that time, Crouse asked Kean if he would go on his bond, in the event that he got into trouble. This is Kean's account of what occurred:

"Yes, sir, he came there and said they had had some words, abusive language and he said, 'He called me off the truck last night and raised a row with me', and he said, 'I talked to him a right smart bad about my wife, ' and he expected to have to pay a fine, and he asked me if I would go his bond to keep him from having to go to jail, if they arrested him...