Presley v. Commonwealth

• Decision Date: 10 June 1946
• Docket Number: Record No. 3102.
• Citation: 185 Va. 261
• Parties: BARNEY PRESLEY v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 261

185 Va. 261

BARNEY PRESLEY v. COMMONWEALTH OF VIRGINIA.

Record No. 3102.

Supreme Court of Virginia, Richmond.

June 10, 1946.

Present, All the Justices.

1. WITNESSES — Credibility — Question for Jury — General Rule. — Generally, the credibility of a witness, who is a party to the action and, therefore, interested in its result, is for the jury; but this rule, being founded in reason, is not an absolute and inflexible one. If the evidence is possible of contradiction in the circumstances, if its truthfulness, or accuracy, is open to a reasonable doubt upon the facts of the case, and the interest of the witness furnishes a proper ground for hesitating to accept his statements, it is a necessary and just rule that the jury should pass upon it.

2. WITNESSES — Credibility — Question for Jury — Unimpeached Witnesses. — The general rule, that where unimpeached witnesses testify positively to a fact, and are uncontradicted, the jury are not at liberty to discredit their testimony, is subject to exceptions; as, where the statements of the witness are grossly improbable, or he has an interest in the question at issue. However well settled the rule may be that the credibility of a witness is for the jury, the judge has power to instruct them as to what circumstances are to be unfavorably considered in their estimation of his evidence.

3. WITNESSES — Credibility — Question for Jury — Right to Reject Testimony. — The testimony of a witness may be wholly rejected by a jury, if from his manner and the improbability of his story or his self-contradiction in the several parts of his narrative, the jury become convinced that he is not speaking the truth; and this is true although he be not attacked in his reputation, or contradicted by other witnesses.

4. HOMICIDE — Evidence — Sufficiency to Show Accused Guilty of Murder — Case at Bar. — In the instant case, a prosecution for homicide, accused was convicted of second degree murder. There was evidence that deceased, with an oath, had threatened to murder accused to his face; that he was irritated because of a transaction between accused and his son; that he had failed to pay for work which accused did for him; that accused had threatened to sue deceased; that deceased was expecting trouble with accused and had made arrangements for bail should the occasion arise; and that before the homicide deceased had armed himself with a borrowed pistol.

Held: That accused was not guilty of murder.

5. HOMICIDE — Murder — Malice Essential Element. — Malice, expressed or implied, is a necessary ingredient of murder.

Error to a judgment of the Circuit Court of Buchanan county. Hon. Alfred A. Skeen, judge presiding.

The opinion states the case.

F. H. Combs, for the plaintiff in error.

Abram P. Staples, Attorney General, and W. Carrington Thompson, Assistant Attorney General, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

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 Presley had overreached 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, `God-damn 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 there', and I said, `Run up there and see if you...