Thomason v. Commonwealth

• Decision Date: 24 November 1941
• Parties: THOMASON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

178 Va. 489

17 S.E.2d 374

THOMASON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 24, 1941.

Error to Circuit Court, Roanoke County; T. L. Keister, Judge.

Russell O. Thomason was convicted for murder in the second degree, and he brings error.

Reversed and remanded for new trial.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

T. W. Messick, of Roanoke, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Walter E. Rogers, of Richmond, for the Commonwealth.

EGGLESTON, Justice.

Russell O. Thomason, indicted for the murder of Clyde Wilson Kirk, has been found guilty by a jury of murder in the second degree, and his punishment fixed at five years' confinement in the penitentiary.

The principal assignment of error is that the evidence is not sufficient to sustain the verdict.

Both the accused and the deceased were middle-aged married men. About ten years prior to the homicide they had lived as next-door neighbors. Thomason's attentions to Mrs. Kirk ended the friendly relations of the two men and they had not spoken to each other for a number of years. There is evidence that Kirk had made a number of threats against Thomason and that these had reached Thomason's ears.

The homicide occurred on the night of July 15, 1940, at the plant of the Southern States Mill, in Roanoke county, where Thomason was employed and while he was engaged in superintending the unloading of corn from a freight car which was standing on a siding in front of the mill. The mill faces in a northerly direction, and in front of it is a concrete platform about nine feet wide. The building is entered from the platform through a door about six feet wide. The siding on which the freight car was located runs parallel to and is just north of the platform. The car had been placed on the siding so that its door was west of and not directly opposite the doorway leading into the building.

Kirk, who lived nearby, came to the mill to procure some grain doors which Howard Patton, one of the mill employees had authorized him to remove from the premises. He entered the freight car through a door on its far side and stood for a few minutes talking to Paul and Howard Patton, who were shoveling corn from the eastern end of the car to the conveyor which led from the center of the car into the mill. While Kirk was in the car, Thomason entered and hung up a light on an extension cord for the purpose of facilitating the unloading of the car. Both he and Kirk observed each other but no word passed between them. After a few minutes Kirk left the freight car through the door leading to the platform. He walked past the mill door to the eastern end of the platform where he smoked a cigarette. At this time Thomason was standing in the lighted doorway of the mill. Kirk left the eastern end of the platform and proceeded toward the mill doorway. When he reached the door he was struck a single blow over the head with a pick handle by Thomason. The blow was a severe one. It struck Kirk over the right eye, crushed his skull, injured his brain, rendered him immediately unconscious, and resulted in his death within twenty-four hours.

Swanson and Lantz, two witnesses who were sitting on the edge of the platform east of the mill door, heard the blow and ran to Kirk who was unconscious and who lay with his feet toward the door and his head toward the outer edge of the platform. Paul and Howard Patton also came from the freight car where they were working. They heard Thomason say, pointing to an open knife beside Kirk's body, "You see what he came after me with. He told me he was going to cut my heart out."

Realizing that Kirk was seriously injured, Thomason phoned for an ambulance and for the sheriff.

The above are the undisputed facts. As to what occurred just prior to the striking of the blow which felled the deceased, the evidence is in hopeless conflict.

Howard Patton testified that he happened to look through the car door and saw Thomason leaning against the easterndoorpost. He could not tell whether Thomason had anything in his hand. Suddenly he saw Thomason swing a pick handle "left-handed over his left shoulder" and strike at some one standing nearby. While the witness saw the outline of the person who was being struck, he did not at first know his identity. He was asked this question: "Just what was that man doing just before he was struck with the pick handle? " His reply was, "He wasn't doing anything that I know of, just standing there on the platform." He further testified that at the time the blow was struck the man who was hit, and who turned out to be Kirk, had his left side to Thomason.

Paul Patton testified that while Thomason was standing in the lighted doorway the person whom he struck was in the shadow and, therefore, was not clearly seen by him (the witness).

Swanson, another witness on behalf of the Commonwealth, was sitting on the edge of the platform opposite the eastern frame of the door leading into the mill. He testified that although Kirk's head fell within three feet of where he (the witness) was sitting, and although he heard the blow, he did not hear any words exchanged between the accused and the deceased.

Lantz, who was sitting on the edge of the platform east of Swanson, likewise heard no exchange of words before the blow was struck.

However, both of these witnesses admit that the noise of the mill machinery may have prevented their hearing any conversation or words which may have passed between Thomason and Kirk. Hence, the brief of the Attorney General quite fairly states, "The Commonwealth cannot claim there was positive direct testimony that no threats were made" by Kirk to Thomason.

The story of Thomason, the accused, is that he was standing against the western (sic) end of the doorframe when he saw Kirk come out of the freight car and walk past the mill doorway toward the eastern end of the platform where Swanson and Lantz were sitting; that in a few minutes Kirk turned and came toward him (Thomason); that when Kirk was about two feet away he said to Thomason, "I am going to cut your damn heart out"; that at the same time Kirk, with an open knife in his right hand, lunged toward him (Thomason); that he (Thomason) "fell back from the doorway and grabbed a pick handle which was behind the door along with a wrench and some other tools"; and that he (Thomason) then struck Kirk over the head with the pick handle.

Thomason further testified that about an hour and a half before the altercation the husk conveyer which was in operation became clogged, that when this happened, as it frequently did, it was necessary that the stoppage be relieved by pounding on the pipe with a wooden stick, that a broom handle had been customarily used for that purpose but since it was out of place on this occasion, he removed the pick from the handle and used the latter to correct the stoppage in the conveyor, and that after having done this he placed the pick handle near the door, where he was later standing.

The Commonwealth's contention is that the jury had the right to disregard Thomason's story in toto; that when this was done it had the right to infer from the Commonwealth's evidence that Thomason, seeing Kirk on the premises and anticipating trouble, armed himself with the pick handle which he concealed near the door; and that when he later saw Kirk with an open knife in his hand, he (Thomason) became unduly alarmed for his safety and struck him, although the latter,, according to the testimony of Howard Patton, had committed no overt act which; threatened actual harm to the accused.

The Attorney General argues that if there had been any such encounter, as Thomason detailed, it would have taken place in front of the door leading into the mill, where the actions of the two men would have been plainly visible from the light shining through the doorway, and would have been observed by both Paul and Howard Patton who, he says, were looking at the scene of the alleged altercation at the time of its occurrence. Since neither of these witnesses saw any...