Puckett v. Commonwealth
| Citation | 182 Va. 237 |
| Decision Date | 24 January 1944 |
| Docket Number | Record No. 2764. |
| Parties | OTIS PUCKETT v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. HOMICIDE — Verdict of Involuntary Manslaughter When Evidence Sufficient to Sustain Murder — Case at Bar. — In the instant case, a prosecution for homicide, accused contended that he accidentally shot deceased while hunting. The evidence of the Commonwealth, however, showed that accused first contended that he did not know how deceased had been shot and maintained this position though frequently questioned for a period of ten days, until he finally admitted the shooting, claiming it to be accidental. The evidence of the Commonwealth also tended to show that accused had been criminally intimate with the wife of the deceased. Accused contended that there was no evidence to sustain the verdict of involuntary manslaughter, that it should be set aside and, consequently, accused discharged from further prosecution.
Held: That there was no merit in the contention of accused, since, had the jury found accused guilty of murder, the verdict would have been sustained.
2. HOMICIDE — Murder — Indictment — Elements of Crime Embraced. — In an indictment for murder, the elements of crime embraced therein are murder, voluntary manslaughter, involuntary manslaughter and simple assault.
3. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Criminal Law — Conviction of Lesser Offense. — The jury may find an accused guilty of an offense embraced in the indictment, though of a lesser degree than is warranted by the evidence.
4. INSTRUCTIONS — Repetition of Instructions — Case at Bar. — In the instant case, a prosecution for homicide, the trial court refused to give an instruction telling the jury its duty in dealing with the question of circumstantial evidence. On motion of the Commonwealth this phase of the case was fully covered by a proper instruction.
Held: That it was not error to refuse to again instruct the jury upon the question of circumstantial evidence.
Error to a judgment of the Circuit Court of Appomattox county. Hon. Joel W. Flood, judge presiding.
The opinion states the case.
George Abbitt, Jr., for the plaintiff in error.
Abram P. Staples, Attorney General, and Edwin B. Jones, Assistant Attorney General, for the Commonwealth.
The accused, Otis Puckett, was tried by a jury upon an indictment charging him with the murder of one William Starry. He was found guilty of involuntary manslaughter and his punishment fixed at confinement in the penitentiary for a period of five years.
It is assigned as error that the court erred in refusing to set aside the verdict of the jury.
The basic contention of the accused is that there is no evidence supporting a conviction of involuntary manslaughter, and that, therefore, the verdict is not responsive to the charge of murder alleged in the indictment.
Upon the trial of the case, accused admitted the killing but claimed that it was accidental. In support of his claim that the death of Starry was the result of an accident, the accused testified that in July, 1942, he went to Baltimore in search of employment; that he became acquainted with Starry and his wife, and Starry employed him as a helper in his business as a coal dealer. While so employed, accused lived in the home of Starry and they became fast friends. In the month of November, 1942, Starry, his wife and accused came to Appomattox, Virginia, and stayed at the home of the accused's parents. Accused further testified that on the morning of the 23rd of November he and Starry went hunting; that, while hunting, the dog they had with them began to chase a rabbit; that they "squatted" down on the side of the hill waiting for the rabbit to come back to its nest; that accused was above him; that while in this position they heard the dog bark and in an attempt to get up, he stumbled, and in his effort to prevent falling, he thrust his right hand backward, causing the gun to discharge, and its load entered the head of Starry at the base of the skull; that he rushed back to the house and in his excitement told his parents someone had shot Starry.
The case of the Commonwealth is an entirely different one from that of the accused. It is the age-old story of "the eternal triangle." Without substantial contradiction, the case of the Commonwealth is as follows: The accused, at the time of the tragedy, was twenty-three years old and was married and the father of three children. He and his wife were estranged, and during that time he went to Baltimore, Maryland, and was employed by Starry, who was a coal dealer and had accumulated over $10,000 worth of property. While living in the home of Starry, accused became criminally intimate with Mrs. Starry. Starry on one occasion accused his wife of being too familiar with accused and slapped her. In November, 1942, Starry, his wife and accused visited the home of accused in Appomattox. While there, a hunting trip was suggested. Mrs. Starry was anxious to accompany accused and Starry but was told by accused to stay at home and they would take her on a hunt in the afternoon. Accused carried a shotgun and Starry carried a rifle on the hunt. Within a short time after their departure, accused returned to the house, bringing with him Starry's wallet which contained $90, and gave it to Mrs. Starry and reported that her husband had been killed by someone. Accused denied that he had a gun with him on the hunt and he denied any knowledge of the manner in which Starry met his death.
When questioned by W. H. McKinney, the sheriff of the county as to what happened, accused stated that while he was at a distance of approximately one hundred yards from Starry, he heard a shot and heard Starry exclaim, "Otis" or "Negro," and heard...
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