Sullivan v. Commonwealth.*

• Decision Date: 12 November 1931
• Citation: 161 S.E. 297
• Court: Virginia Supreme Court
• Parties: SULLIVAN . v. COMMONWEALTH.*

161 S.E. 297

SULLIVAN .

v.COMMONWEALTH.^*

Supreme Court of Appeals of Virginia.

Nov. 12, 1931.

EPES, J., dissenting.

Error to Hustings Court of City of Roanoke.

Eugene Sullivan was convicted of breaking and entering dwelling house with intent to commit murder, rape, or robbery, and he brings error.

Affirmed.

Argued before CAMPBELL, HOLT, EPES, HUDGINS, and GREGORY, JJ.

A. B. Hunt and B. G. Garrett, both of Roanoke, for plaintiff in error.

John R. Saunders, Atty. Gen., Edwin H. Gibson and Collins Denny, Jr., Asst. Attys. Gen., for the Commonwealth.

CAMPBELL, J.

Eugene Sullivan, Harry Crawford, and Eugene Thomas were jointly indicted by the grand jury in the hustings court of the city of Roanoke. There is but one count in the indictment which charges "that Eugene Sullivan, Harry Crawford and Eugene Thomas heretofore, towit on the-day of January, 1930, in the day time of that day, within the jurisdiction of this Court in the city of Roanoke, Virginia, feloniously did break and enter a certain dwelling house, which said dwelling house is situate within the city of Roanoke, Virginia, with the unlawful and felonious intent to commit an assault therein upon one Joe Nash, and with the unlawful and felonious intent to maim, disfigure, disable and kill the said Joe Nash, who was then and there in said dwelling house, and which said dwelling house was then and there occupied as a dwelling house by the said Joe Nash."

Eugene Sullivan and Harry Crawford were arraigned, and "plead not guilty to the charge of breaking and entering a dwelling house with intent to maim as alleged against them in the indictment." They thereupon moved the court for separate trials, and the commonwealth elected to try Eugene Sullivan.

In bill of exception No. 1 it is certified "that before the commencement of this trial, the judge, on motion of counsel for the defense, required the attorney for the Commonwealth to elect under which section of the Code of Virginia the accused would be tried and the attorney for the Commonwealth stated that he would elect to try the defendant under section 4438."

No objection was made by the accused either to this ruling, which was made on his own motion, or to the statement of the attorney for the commonwealth in obediencethereto, that he elected to try the accused under section 4438. The trial thereupon proceeded, with the acquiescence of the accused, under that section, with express notice that he was being tried upon the charge that the breaking was with intent to commit murder.

The evidence introduced by the commonwealth, if true, proves the following facts:

Joe Nash resided with his wife in an apartment on the second floor of a building on Salem avenue, in the city of Roanoke, where he sold intoxicating liquors. The entrance to this apartment was by a front door, which gave entrance to a hallway in which there was a flight of steps leading to the apartment above. This front door was not locked or bolted; but at the head of the stairs there was a door, giving entrance to the rooms occupied by Joe Nash, which was locked. At the side of this door was a peephole, which enabled the occupants of the apartment to see one presenting himself at the door before permitting him to enter.

During the afternoon of January 2, 1930, Harry Crawford, who had come to the apartment to buy liquor, had an altercation with the wife of Joe Nash, in the course of which he slapped her; and thereupon Joe Nash picked up a stick and hit him over the head with it, after which Crawford left the apartment.

A little later, between 4 and 5 o'clock in the afternoon, Joe Nash heard some persons coming up the steps in the hallway, and, looking through the peephole, saw Harry Crawford, with a knife, Jimmy Patton with a knife, Joe Smith with a pair of knucks, and Eugene Sullivan with a pistol in hand coming up the stairway leading to his apartment.

Eugene Sullivan (accused) demanded that Nash open the door. Joe Nash refused to open the door, and asked them to leave. Sullivan then said, "Joe Nash, you will not flash

any more knives on nobody else, you—,

I have come to kill you; I will shoot the door down or break it down." He then fired several shots into the door, on the opposite side of which Nash was standing with his hand on the lock. One of the bullets fired struck the metal lock on the door, and others struck either the door or the partition wall through which the door gave entrance. After the first shot had been fired and threat made to kill him, Joe Nash ran out of the house by a rear exit.

Either Sullivan or one of the three men with him then broke out a panel of the door and reached in and unlocked the door; and all four men entered. Sullivan came in first with his pistol in his hand, and was followed by Harry Crawford.

After entering, Sullivan went into the dining room where he found W. M. Lockard asleep, and kicked him in the face, saying, "You get up, you have a knack of drawing knives on people too." He then struck Lock-

ard again, and said, "Where is that —

Joe Nash, I will get him for cocking knives on people"; and in Lockard's hearing said that he was looking for Joe Nash to kill him, and that he would kill him if he saw him. He then went into the kitchen with his pistol in his hand, and in the presence of the negro servant pulled out a knife and said, "This is one time we will fix Joe Nash."

In a short time Sullivan left the house by the front door and went out on the street, where he met H. J. Shepherd and M. L. Harvey, two police officers of the city of Roanoke, who were in conference with Joe Nash when he walked up. However, no arrest of Sullivan was made until the next day.

Then, in support of his defense as upon a plea of not guilty, the accused, Sullivan, testified that he had no pistol, fired none of the shots, did not himself break in the door, and did not threaten to kill Joe Nash; and in these denials he is corroborated by other witnesses. He testified that his reason for being there was to get a drink of whisky.

As to these conflicts in the testimony, it is only necessary to say that the testimony for the commonwealth is sufficient to support the verdict.

The court gave but one instruction, which seems to have been orally and extemporaneously delivered, and is as follows:

"The court instructs you that the burden is upon the Commonwealth to prove the guilt of this man beyond a reasonable doubt by reliable evidence. If you believe beyond a reasonable doubt that Eugene Sullivan did this shooting, or if you believe he was with others, aiding and abetting, whether or not he actually did the shooting, and if you believe that this was done with intent to commit murder, rape or robbery, you will find him guilty and fix his punishment at not less than three nor more than fifteen years. The burden is upon the Commonwealth to prove beyond a reasonable doubt. If you find him not guilty you will say so. You can only arrive at the intent of a man from what he does or what he says, and in this case the burden is upon the Commonwealth to prove the intent as well as the facts.

"Rid your minds of whether or not this was a bootlegging joint or not, and treat it as if it were the home of any other man in this city, white or colored, and do not let the fact that it was a bootlegging joint have any influence on you."

The attorney for the accused objected to this instruction, and assigned this and no other ground of objection thereto:

"The instruction is predicated upon section 4438 of the Code; while the indictment isdrawn under section 4439 of the Code and that the indictment in this case is fatally defective as an indictment under section 4438 of the Code and that the instruction states the punishment at not less than three nor more than fifteen years, while the punishment under section 4439 is from two to ten years."

The jury returned a verdict which read: "We, the jury, find the defendant guilty and fix his sentence at five years." Whereupon the court directed the jury to amend its verdict to read: "We, the jury, find the defendant guilty, as charged, and fix his punishment at five years in the penitentiary, " which the jury did.

The accused moved the court to set aside the verdict and grant him a new trial "upon the ground that the same was contrary to the law and the evidence, and a misdirection of the jury, " which, so far as the record discloses, was the only specification of the grounds upon which the defendant moved the court to set aside the verdict. The court overruled the motion and entered judgment thereon.

The first assignment of error is that "the court erred in permitting the indictment to be tried upon section 4438 of the Code of Virginia at the election of the Commonwealth's attorney, even though the defendant by counsel required the Commonwealth's attorney to elect under which section of the Code the accused would be tried."

This assignment is inaccurately phrased, for the court required this election in response to a motion of the attorney for the accused.

The second assignment of error is that the court erred in instructing the jury that the jury could, under this indictment, find the accused guilty of breaking and entering with intent to commit murder, rape, or robbery, and fix his punishment at from three to fifteen years in the penitentiary—that is, the punishment prescribed for the offense specified in section 4438 of the Code—and should have instructed the jury that under this indictment the greatest offense for which Sullivan could be found guilty was breaking and entering with intent to maim, disfigure, disable, and kill Joe Nash, and that, if it found him guilty of such charge, it should fix his punishment, in accordance with the provisions of section 4439, at not less than one nor more than ten years in the penitentiary, or, in its discretion, at confinement in jail not exceeding twelve months and a fine of not exceeding $500.

Neither of these assignments of error can be sustained.

Va. Code 1919, § 4438,...