Thomas v. Commonwealth
| Decision Date | 03 March 1947 |
| Docket Number | Record No. 3174. |
| Citation | 186 Va. 131 |
| Parties | EPHRIAM THOMAS v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.
1. HOMICIDE — Murder in the First Degree — Sufficiency of Evidence to Show, Wanton, Wilful, Premeditated Killing — Case at Bar. — In the instant case, a prosecution for homicide, accused had gotten into a taxicab and after having been driven aimlessly around a certain locality was told by the taxicab driver that he was going to return accused to the place where he had engaged the cab. Accused then asked the driver if he was not a taxi driver and supposed to take people where they wanted to go. There was no further conversation and sometime later, without warning, accused fired a pistol from the back seat of the taxicab wounding the driver and another passenger and killing a second passenger, both of whom were riding on the front seat.
Held: That the evidence showed a wicked, wanton, wilful, premeditated killing, ample to sustain a verdct of first degree murder.
2. HOMICIDE — Murder in the First Degree — Mortal Wound with Deadly Weapon as Evidence that Killing Was Deliberate, Wilful and Premeditated. — 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 wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.
3. HOMICIDE — Murder in the First Degree — Mortal Wound with Deadly Weapon as Evidence that Killing Was Deliberate, Wilful and Premeditated — Does Not Conflict with Rule that Every Homicide Is Presumed to Be Murder in the Second Degree. — There is no conflict between the legal principle that a prima facie case of first degree murder is established when the Commonwealth proves a mortal wound given with a deadly weapon in the previous possession of the slayer without any or upon very slight provocation, and that long established principle that every homicide is presumed to be murder in the second degree.
4. HOMICIDE — Murder in the First Degree — Evidence of Deliberate and Premeditated Killing by Manner in Which Act Was Done — Case at Bar. — In the instant case, a prosecution for homicide, accused had gotten into a taxicab and after having been driven aimlessly around a certain locality was told by the taxicab driver that he was going to return accused to the place where he had engaged the cab. Accused then asked the driver if he was not a taxi driver and supposed to take people where they wanted to to. There was no further conversation and sometime later, without warning, accused fired a pistol from the back seat of the taxicab wounding the driver and another passenger and killing a second passenger, both of whom were riding on the front seat. Accused contended that he should not have been convicted of a greater offense than murder in the second degree because of the presumption that such was the degree of his crime and that the Commonwealth had not proven that defendant's act was wilful, deliberate and premeditated.
Held: That there was no merit in the contention, since the wilful, deliberate and premeditated character of the act was established by the evidence of the manner in which the act was done.
5. HOMICIDE — Murder in the First or Second Degree — Necessity for Malice. — Malice either express or implied is an essential element in murder either of first or second degree.
6. HOMICIDE — Murder in the First Degree — Commonwealth Not Required to Show Motive — Case at Bar. — In the instant case, a prosecution for homicide, accused had gotten into a taxicab and after having been driven aimlessly around a certain locality was told by the taxicab driver that he was going to return accused to the place where he had engaged the cab. Accused then asked the driver if he was not a taxi driver and supposed to take people where they wanted to go. There was no further conversation and sometime later, without warning, accused fired a pistol from the back seat of the taxicab wounding the driver and another passenger and killing a second passenger, both of whom were riding on the front seat.
Held: That it ws not required of the Commonwealth to show a motive or reason for the killing.
7. HOMICIDE — Murder in the First Degree — Sufficiency of Evidence to Show Malic and that Killing Was Wilful, Deliberate and Premeditated — Case at Bar. — In the instant case, a prosecution for homicide, accused had gotten into a taxicab and after having been driven aimlessly around a a certain locality was told by the taxicab driver that he was going to return accused to the place where he had engaged the cab. Accused then asked the driver if he was not a taxi driver and supposed to take people where they wanted go to. There was no further conversation and sometime later, without warning, accused fired a pistol from the back seat of the taxicab wounding the driver and another passenger and killing a second passenger, both of whom were riding on the front seat.
Held: That under the circumstances shown the killing was presumed to have been prompted by malice.
8. HOMICIDE — Instruction — Erroneous Instruction on Accident Given at Request of Accused — Case at Bar. — In the instant case, a prosecution for homicide, accused had gotten into a taxicab and after having been driven aimlessly around a certain locality was told by the taxicab driver that he was going to return accused to the place where he had engaged the cab. Accused then asked the driver if he was not a taxi driver and supposed to take people where they wanted to go. There was no further conversation and sometime later, without warning, accused fired a pistol from the back seat of the taxicab wounding the driver and another passenger and killing a second passenger, both of whom were riding on the front seat. At the request of accused the court instructed the jury that if they believed from the evidence that the shooting was done accidentally, without any malice or intent to do bodily injury, they should find accused not guilty. A ccused assigned as error the fact that the court did not instruct the jury on involuntary manslaughter.
Held: That it was true that while the instruction given was more favorable to defendant then he was entitled to have, but having asked and obtained it, and having elected to have the court tell the jury that his claim of accident required a more favorable verdict than was actually the case, he could not complain.
Error to a judgment of the Circuit Court of Nansemond county. Hon. John K. Hutton, judge presiding.
The opinion states the case.
Hill, Martin & Robinson, for the plaintiff in error.
Abram P. Staples, Attorney General, and Walter E. Rogers, Assistant Attorney General, for the Commonwealth.
The defendant, Ephriam Thomas, was tried and convicted by a jury of murder in the first degree and his punishment fixed at death. He was sentenced on that verdict. We are asked to reverse the judgment because of insufficiency of the evidence and because the jury were not instructed on involuntary manslaughter.
The killing occurred on the night of February 2, 1946 not long after eight o'clock. A short time prior to the killing the defendant hailed and got into a taxicab, then being operated by Frank Holloway, on the old Norfolk road near Suffolk. He had been drinking but was not drunk. He was carrying a .45 calibre semi-automatic army pistol which he had put under his belt when he left home. He got into the rear seat of the cab and told the driver he wanted to go to Saratoga Place. There was then no one else in the cab. They drove to Saratoga Place, where the defendant said he wanted to find a woman, but did not know her name or where she lived, and after driving around for sometime the driver, Holloway, started back to put the defendant put where he had picked him up. On the way he picked up another man near Main street who got into the front seat with the driver. Farther on he picked up two women, Lenora Hamlin and Ettis Worrell, who got into the back seat with the defendant. Lenora Hamlin sat next to the defendant, spoke to him and called him "Thomas." The cab then continued on Down East Washington Street to the Elks Club where the passenger in the front seat got out and Lenora Hamlin and Ettis Worrell got into the front seat, leaving the defendant alone in the back. Ettis Worrell sat next to the driver and Lenora Hamlin sat on the right. Either then or at some time after the two women got into the cab (the evidence does not specifically show), the defendant asked Holloway to take him back to Saratoga Place. Holloway refused because he said he was afraid of the defendant and unwilling to ride around with him any more in Saratoga Place where he had already driven him around aimlessly. He told the defendant he was going to take him back where he got him. The defendant then asked Holloway if he was not a taxi driver and supposed to take people where they wanted to go. Except for this conversation and Lenora Hamlin's speaking to the defendant when she and Ettis Worrell entered the cab, nothing had been said to or by the defendant before the shooting occurred.
The journey was resumed from the Elks Club, and as the driver was preparing to stop just before reaching the place where the defendant was to get out, he slowed his cab down to about ten miles an hour and then, without warning, the defendant fired his pistol from the rear seat into the back of the right shoulder of Holloway, the driver. Just prior to the shot Holloway felt what seemed to him to be the defendant's knee pressing against the rear of the front seat against his back. When he was shot, Holloway opened the cab door, jumped out and ran behind a garage across the street. He then heard two other shots fired in rapid succession. The second shot struck ...
To continue reading
Request your trial