Smith v. Com.

• Decision Date: 10 October 1966
• Citation: 150 S.E.2d 545,207 Va. 459
• Court: Virginia Supreme Court
• Parties: Martin Thomas SMITH v. COMMONWEALTH of Virginia.

Page 545

150 S.E.2d 545

207 Va. 459

Martin Thomas SMITH v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 10, 1966.

Rehearing Denied Nov. 30, 1966.

Floyd Caldwell Bagley, Dumfries, for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, PANSON, CARRICO and GORDON, JJ.

SPRATLEY, Justice.

Martin Thomas Smith was, on July 27, 1964, indicted in the Circuit Court of the County of Prince William for the murder of Henry Blaine Moore. The indictment was in the statutory short form, Virginia Code, § 19.1--166, 1960 Repl. Vol. Represented by counsel of his own choosing, he was tried on November 24 and 25, 1964, before a jury, on a plea of not guilty. The jury found him guilty of voluntary manslaughter, and fixed his punishment at two years confinement in the State Penitentiary. Sentence was imposed accordingly. We granted a writ of error to review the judgment.

The facts are not without conflict; but, in view of the verdict of the jury, they will be summarized in the light most favorable to the Commonwealth.

On the afternoon of Friday, June 12, 1964, Henry Blaine Moore, a truck driver, and his friend, Robert Wayne Lesheski, a truck driver, met at the plant of Moore's employer at Springfield, Fairfax County, Virginia. They there began drinking beer and whiskey, and later went to Dumfries, Virginia, where they continued drinking in a restaurant. Leaving Dumfries, they 'rode around a while,' drinking still more. After each had consumed eight bottles of beer and one-half pint of whiskey, they proceeded in an automoible, driven by Lesheski, to the home of Moore in the Quantico-Triangle Trailer Court near Triangle, Virginia. Lesheski said that he was 'feeling pretty good,' and that Moore was 'drunk.' Moore told Lesheski that he wanted to see someone before he reached home. Upon their arrival at the trailer court, Lesheski parked his car not far from a trailer occupied by Martin Thomas Smith and his family. Moore, his wife and child occupied a trailer one lot removed from the trailer of Smith. As Moore and Lesheski arrived, Smith was observed walking towards his trailer carrying a bucket of deer meat or deer skin, which he had just obtained from an automobile parked in front of his home. Moore got out of Lesheski's car, approached Smith, and said to the latter: 'You took my daughter's ball.' Smith denied taking the ball. After a few words between the two, Moore struck Smith, and they 'tussled' with each other for a few moments. Lesheski said he undertook to part them, but unable to do so returned to his car, and falsely announced that he had a gun. Moore and Smith then broke off their affray. Moore went back across the street to Lesheski's car, and Smith went to his home. Smith remained in his trailer ten or more minutes, during which time he changed his clothes, put on his socks and shoes, and told his wife to take their children to the rear portion of their trailer and remain there. In the meantime, Moore, standing near Lesheski's car across the street, loudly cursed, abused and threatened death to Smith. Smith heard the abuse and threats. He knew that Moore was drunk.

While in his trailer home, Smith, who had served in the U.S. Marine Corps for several years, armed himself with a large hunting knife, 10 1/2 inches in length, with a 5 1/2 inch blade, of the type used by Marines for close combat. He had received hand to hand combat training, and had instructed others as to the use of a knife in close combat. Smith also armed himself with a bullwhip, and then went out into his yard towards Moore, who, he said, was talking 'loud and boisterous and acting like a drunk.' Smith cracked his bullwhip, and then, seeking that Moore was unarmed, threw the whip aside. Smith said to Moore: 'I'm ready for you, come and get me'; 'Now come over here, and I will cut your damn guts out;' and 'If you want to fight with a knife, I have one too.' Moore, who was about sixty feet distant from the corner of Smith's trailer, in response, staggered across the street towards Smith with 'his arms stretched out.' The two met in the front part of Smith's yard, and 'started tangling together.' They embraced each other in what witnesses said was 'a bear hug,' and Smith, with his arms around Moore, held his knife in his right hand.

Lesheski came to them, seeing that Smith had a knife, tried to stop the fight, reached for the knife, and was himself stabbed in the left side by Smith.

In the fracas, Smith stabbed Moore in the latter's back, beneath the right twelfth rib, a penetrating wound two inches in length. Other bruises, cuts and abrasions of a more or less superficial nature were inflicted on the chest and forehead of Moore.

Moore fell to the ground when he was stabbed in his back, the fight ended, Moore got up, went to his trailer, got his gun, and returned to a spot nearby and collapsed. He was placed in a chair until an ambulance removed him to a hospital, and did on June 17, 1964, as a result of the wound in his back.

Upon return of the jury's verdict, 'nothing being offered or alleged in delay of judgment,' Smith was, on November 25, 1964, sentenced to confinement in the penitentiary for a period of two years. No objection nor exception was taken to the entry of an order accordingly. No motion was made to set aside the verdict, to grant a new trial, to suspend imposition of sentence, or suspend the sentence.

Subsequently, on December 10, 1964, the tenth day after final judgment, Smith, by counsel, filed with the Clerk of the Circuit Court of Prince William County a notice in writing requesting that this case be placed on the docket to be called on December 16, 1964, for the following:

'1. Motion to set aside verdict and judgment, and for new trial.

'2. Motion for transcript of record under Va. Code Sec. 17--30.1.

'3. Request for time to apply for writ of error, Va. Code Sec. 19.1--281.'

Attached to the above notice was an affidavit of Smith 'of his intention to appeal' from his conviction, and that he was financially unable to bear the expense of a copy of a transcript of the evidence for an appeal.

On December 16, 1964, Smith also filed with the clerk of the court a motion, in writing, praying the court to grant him a new trial upon the charge of voluntary manslaughter upon the following grounds:

'1. That the verdict and judgment thereon are contrary to the law and the evidence.

'2. That the comments of the attorney for the Commonwealth in closing argument were highly prejudicial to the rights of Defendant wherein the scope of counsel for Defendant's argument was exceeded and the Commonwealth Attorney's opinion of Defendant's guilt stated and comments made upon matters not in evidence.

'3. Such other grounds as may be revealed after perusal of the record.

'WHEREFORE, Defendant prays that motion be held under advisement pending transcription of the record of trial in this matter to the end that the record may be reviewed prior to decision hereupon, * * *.'

On December 30, 1964, Honorable Bernard F. Jennings, presiding in the trial court, entered, at the request of Smith, an order reciting that: 'This matter came on to be heard on December 16, 1964, upon motion of counsel for defendant * * *;' and, 'It appearing to the Court from the affidavit of defendant and other evidence that defendant intends to seek an appeal * * *, and is unable to pay the cost of a transcript of the evidence for an appeal; it is ordered that the evidence be transcribed for such appeal' at the expense of the Commonwealth.

The order further directed that Smith's 'MOTION FOR NEW TRIAL filed on December 16, 1964 be continued to January 5, 1965, or as soon before or after such date as may be convenient to allow Judge B. Calvin Van Dyck, who presided at trial of this matter, to hear the same;' and 'that Defendant's motion for time to appeal he similarly continued.'

On January 12, 1965, Judge Van Dyck, after having heard the argument of counsel for Smith and the Commonwealth's Attorney, denied the motion for a new trial, 'on the grounds that more than twenty-one days have elapsed since the imposition of sentence, and that it is now beyond the jurisdiction of the Court to modify its order imposing sentence on the 25th day of November, 1964.' The defendant, by counsel, excepted.

The record contains the following 'Menorandum of Incidents of the Trial,' signed by the trial judge on February 1, 1965:

'Because of the serious illness of the reporter serving the present trial, it was impossible to get a transcript of the closing argument of counsel and the argument on instructions within the required time. Ground 4 of the notice of appeal and assignment of error relates to matter occurring during such final argument and, in this connection, it is the combined recollection of court and counsel that the following took place with respect to this ground of the assignment error:

'Mr. H. Selwyn Smith, attorney for the Commonwealth, stated to the jury in his rebuttal argument that in his opinion the defendant was guilty, to which statement Mr. Bagley objected and after which objection Mr. Smith stated to the jury that they had been instructed to decide the case upon the evidence and not upon his or Mr. Bagley's opinion, but that he believed that the evidence produced by the Commonwealth justified his opinion and, he would hope, theirs.

'Subsequently, attorney for the Commonwealth began to read from instructions which had previously been read by the court, at which time Mr. Bagley objected upon the grounds that the Commonwealth attorney was exceeding the scope of defendant's counsel's argument, at which time the Commonwealth attorney ceased to read and concluded his argument.

'The court and counsel further agree that during the argument on instructions Mr. Bagley, counsel for defendant, objected and excepted to the...