Smith v. Com.

• Decision Date: 07 May 1951
• Docket Number: No. 3828,3828
• Citation: 64 S.E.2d 761,192 Va. 186
• Parties: WADDELL SMITH v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 761

64 S.E.2d 761

192 Va. 186

WADDELL SMITH v. COMMONWEALTH OF VIRGINIA.

Record No. 3828.

Supreme Court of Appeals of Virginia

May 7, 1951.

Philip Lee Lotz, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Thomas M. Miller, Assistant Attorney General, for the Commonwealth.

JUDGE: EGGLESTON

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

Waddell Smith, sometimes referred to herein as the defendant, was convicted by a jury of second-degree murder and sentenced to serve twenty years in the penitentiary for the killing of John Bondes. On this writ of error the defendant's main contention is that the verdict is not warranted by the evidence.

At the time of the homicide the defendant was thirty years of age, a foreman of a group of orchard workers, and lived with his wife and their foster child in the community known as Christians, in Augusta county. The deceased, John Bondes, was thirty-seven years of age, a native of Georgia, and an itinerant laborer who came to Augusta county in October, 1949. He had a room at the home of Elizabeth Wright, the mother-in-law of the defendant, who likewise lived at Christians.

On the afternoon of November 8, 1949, both men went to Staunton, a distance of about ten miles from Christians. They did not make the trip together, but met at a restaurant where they were joined by Smith's wife, mother-in-law, and child. Smith engaged a taxicab to take his family home and Bondes sought and obtained permission to accompany them. The two men sat on the front seat with the driver, while the two women and the child occupied the rear seat.

Bondes had been drinking and was in an ugly mood. On the trip home he made a reference to Smith's wife which Smith resented. An argument ensued, Bondes threatened Smith repeatedly, and invited him to get out of the cab and fight. Smith declined the invitation.

Smith testified that Bondes accompanied these threats with the display of a knife, but neither the cab driver nor any of the other occupants of the cab saw this. At the insistence of the cab driver Bondes quieted down and the trip to Christians was completed without serious trouble.

Upon their arrival at their destination the entire party entered the Smith home. The two men sat on the sofa in the living room for a short while and then went to the kitchen, in the rear of the building, and had a drink of wine. The women remained in the living room and bedroom at the front of the house.

Shortly after the men had gone into the kitchen Bondes resumed his argumentative and threatening attitude toward Smith. According to a witness for the Commonwealth, Bondes said, 'I will cut a man's head off in a minute and think nothing about it.' Mrs. Wright, Smith's mother-in-law, undertook to quiet Bondes and suggested that he and she leave and go to her home, but Bondes declined to do so.

Smith then left the kitchen and went to the bedroom where he took down a shotgun which hung over the door. He procured a cartridge from a bureau drawer in the dedroom, loaded the gun, and walked to the doorway which led from the living room into the adjoining dining room. Bondes, who had remained in the kitchen, was visible to Smith through the doorways leading from the living room into the dining room, and from this latter room into the kitchen.

According to the Commonwealth's witnesses Smith called twice to Bondes who turned toward him, and as he did so Smith fired the gun from his hip, inflicting a wound from which Bondes died shortly.

Smith testified that after he had loaded the gun and was standing at the door leading from the living room into the dining room, he called to Bondes in the kitchen and said to him, 'Get out of here;' that Bondes then 'reached his hands in his pocket and started toward me;' and that he (Smith) then fired the fatal shot.

All the witnesses, including the defendant, agree that the fatal shot was fired from the living room, through the door leading into the dining room, across the dining room and through the door leading into the kitchen, where the deceased was standing, some twelve to fourteen feet away. The deceased was unarmed at the time of the shooting.

We are of opinion that the evidence which we have related amply supports a finding of second-degree murder. It is elementary law in this jurisdiction that every homicide is presumed to be murder in the second degree, and the burden of proving the elements necessary to elevate the crime to murder in the first degree is upon the Commonwealth, and the burden is on the accused to reduce the offense from murder in the second degree to manslaughter or excusable or justifiable homicide. Lloyd v. Commonwealth, 185 Va. 674, 677, 40 S.E. (2d) 258, 259; Callahan v. Commonwealth, ante, p. 26, 63 S.E. (2d) 617, 620.

It is also an established principle of our criminal law that a mortal wound given with a deadly weapon in the previous possession of the slayer, without any, or upon very slight provocation, is prima facie willful, deliberate and premeditated killing, and throws upon the accused the...