Sizemore v. Com., 771007

• Decision Date: 21 April 1978
• Docket Number: No. 771007,771007
• Citation: 243 S.E.2d 212,218 Va. 980
• Parties: Jerry Martin SIZEMORE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 212

243 S.E.2d 212

218 Va. 980

Jerry Martin SIZEMORE v. COMMONWEALTH of Virginia.

Record No. 771007.

Supreme Court of Virginia.

April 21, 1978.

Thomas G. Hodges, Wytheville (Campbell, Young & Hodges, Wytheville, on brief), for plaintiff in error.

Jerry P. Slonaker, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

HARRISON, Justice.

Jerry Martin Sizemore was convicted by the court below of attempting to murder a Virginia State Trooper and was sentenced to serve four years in the state penitentiary. This appeal questions the sufficiency of the evidence to convict.

On September 19, 1976, the defendant was involved in an automobile accident in Smyth County, left the scene and later abandoned his car. Trooper B. J. Atwood determined that the abandoned car belonged to Sizemore. The trooper knew that Sizemore lived with his parents, and he proceeded to their home to interrogate defendant. When he knocked at the door of the Sizemore home the defendant responded and admitted the trooper. Atwood then interviewed defendant in the presence of Lloyd Spencer, a friend of Sizemore's.

Atwood testified that Sizemore denied any involvement in the accident and claimed that his car had that day been stolen and that his sister, Pamela, was supposed to have reported the theft. The officer asked to speak to the sister, and Sizemore called her. When the young girl came into the room Atwood inquired if he could talk to her on the outside. Atwood testified that during their conversation in his police car the girl told him her brother's car had not been stolen. The officer said that after they had been talking for about five or ten minutes, he heard someone say in a loud tone of voice, "Pam, get out of that car." He stated that when he looked in the direction from which the voice came he saw Sizemore standing in front of the house, approximately 20-25 feet from the police car, with a .22 caliber automatic rifle to his left shoulder, pointed straight at him. The trooper's version of what then occurred is as follows:

"And he said, 'I'm going to kill you, m f ', and Pam started hollering, 'No, Jerry, no, Jerry, no', and he hollered at her again and said 'Get out of that car', and she jumped out the door and started running. She run (sic ) toward Mrs. Combs' house, which is back behind her house and to the right. He said, 'Goddamn you, I'm going to kill you'. I said, 'Put your gun down'. He said, 'No, I'm going to kill you'. He started off the porch and he said, 'You move and I'm going to kill you'. I had my right hand laying on the steering wheel and I had my left hand up on the door post. He said, 'If you move, I'll kill you'. He said, 'You put your hands up', and I just raised them up like this. Then he walked on up to about five feet of the car and I said, 'Put your gun down and let's talk', and he said, 'No, I'm going to kill you'. I said, 'If you kill me, you go to the electric chair', and about this time, Lloyd Spencer, the other person who was in the house, came out and he told him I believe he called him 'Buttons'. He said, 'Go around and get his gun'. He said, 'No, I'm not going to get his gun', he said, 'I'm not going to get involved in it. I'm not going to spend the rest of my life in the penitentiary'. I told him again, I said, 'Put your gun down. When you shoot me, you don't go to the penitentiary. You go to the electric chair'. He said, 'I'm going to kill you', and he told Spencer again, he said, 'I told you to get his gun', and he said, 'No, I'm not going to get his gun.' He said, 'You'd better give me the gun'. I told him, 'You had better give him the gun because when you pull that trigger and kill me, that's cold-blooded murder', and I said, 'You'll fry in the electric chair for it'. He said, 'I'm going to kill you', and I told him again, I said, 'You'd better put your gun down or give it to your friend there, because', I said, 'Right now you're just involved in an automobile accident charges' (sic ). That was the only thing I was investigating, but I said, 'You're getting yourself into some serious trouble', I said, 'When you pull that trigger and you kill me, you'll go to the electric chair', and I told him this two or three different times, and finally he waivered and he just dropped the gun down and I said, 'Give it to your friend', and he handed the gun . . . before he handed it to him, when he dropped it down, he reached over and pushed the safety back on it and handed it to him, and when he handed it, Spencer took it and ejected the shells out on the ground. At that time, I told Sizemore, without even getting out of the car, I said, 'Come around and have a seat', and he came around and sat down beside me. I questioned him at that time about the accident and arrested him and transported him to the Smyth County Jail.''

Atwood was the only witness called by the Commonwealth. Sizemore testified in his own behalf, but remembered nothing about the events of the day other than that he had gotten up in the morning and had been drinking beer and whiskey and driving his automobile around.

It is well established that an attempt is composed of two elements: the intention to commit the crime, and the doing of some direct act towards its consummation which is more than mere preparation but falls short of execution of the ultimate purpose. Martin v. Commonwealth, 195 Va. 1107, 81 S.E.2d 574 (1954). In Glover v. Commonwealth, 86 Va. 382, 385-86, 10 S.E. 420, 421 (1889), we defined "attempt" as follows:

"An attempt in criminal law is an apparent unfinished crime, and hence is compounded of two elements, viz: (1) The intent to commit a crime; and (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the consummation of the crime in contemplation, but is sufficient if it be an act apparently adopted to produce the result intended. It must be something more than mere preparation. (Citations omitted.)"

The defendant contends that his acts were preparatory only, and that the ineffectual act that would commence the consummation of the crime would be that of shooting rather than pointing the gun. Counsel for Sizemore argues that for a defendant to be guilty of attempted murder, he must either be pulling the trigger and be thwarted by an outside force, or have actually pulled the trigger in an attempt to kill someone. He relies upon Howard v. Commonwealth, 207 Va. 222, 148 S.E.2d 800 (1966), and Mullins v. Commonwealth, 174 Va. 477, 5 S.E.2d 491 (1939).

In Howard an officer investigating an accident was seized by Howard and his confederate and forced to accompany them in a police car. Howard told his confederate that if the officer said anything regarding street names loud enough to be heard on the radio of the car the confederate was to kill the officer. When a street number was mentioned a cocked gun was thrust into the officer's face. The officer instinctively threw up his hands and struck the gun which then "went off". In affirming the conviction for attempted murder, the Court said:

"The firing of the weapon constituted an overt act which was the commencement of the consummation of the crime of murder. The trial court had a right to conclude that Lamm's act of pushing the pistol aside was an extraneous circumstance independent of the will of defendants which prevented them from carrying out their intent to commit murder. Defendants' threats and conduct, when considered in the light of the attending circumstances, were sufficient to show that the criminal purpose had been formed in their minds." 207 Va. at 228-29, 148 S.E.2d at 804.

In Mullins, a prosecution for the attempted rape of a seven-year-old child, the accused enticed the child into the woods, suggested that the...