Thompson v. Com.

• Decision Date: 21 April 1952
• Docket Number: No. 3957,3957
• Citation: Thompson v. Com., 70 S.E.2d 284, 193 Va. 704 (1952)
• Parties: EUGENE S. THOMPSON v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 284

70 S.E.2d 284

193 Va. 704

EUGENE S. THOMPSON v. COMMONWEALTH OF VIRGINIA.

Record No. 3957.

Supreme Court of Appeals of Virginia

April 21, 1952.

Hubert Peery, Samuel A. Martin and Carl C. Gillespie, for the plaintiff in error.

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

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

This writ of error brings under review a judgment entered on a verdict finding Eugene Thompson guilty of murder in the first degree for killing Jack Sarver, and fixing his punishment at death.

Defendant offered no evidence tending to deny the facts and circumstances of the killing but contends that he was insane at the time.

The evidence for the Commonwealth is that a short time before the killing, defendant became incensed with Jack Sarver because he had been informed that Sarver had made certain derogatory statements concerning him and a woman. Defendant went to Sarver's home and demanded an explanation. Notwithstanding Sarver denied having made the statements, defendant, in the presence of Sarver's wife, said: 'I am going to kill you, the only reason I don't kill you right now is because of your wife and baby, I have this wrench in my hand and something else under my coat.'

Frank Hammons testified that between 10:00 and 10:30 a.m. on February 16, 1951, defendant asked him to take him from Pearisburg to his home, a distance of approximately three miles. They got into Hammons' automobile and stopped by the post office where defendant had a conversation with Campbell Mutter concerning a pistol. Hammons, at defendant's request, stopped by Mutter's shoe shop, where defendant, without Hammons' knowledge, purchased from Mutter a Smith & Wesson pistol, and five shells, for which he gave a check for $22.00. Defendant then requested Hammons to take him to a hardware store, on the pretext of purchasing parts for his truck. There he bought 13 additional shells for his pistol. The parties then went to Narrows, instead of defendant's home. On their return to Pearisburg, Hammons parked his car, went into the poolroom, and did not see defendant again that day.

Chapman Fuller, defendant's wife's nephew, testified that about noon on the same day, while in the poolroom, defendant asked him to take him home. Fuller informed him that Jack Sarver was driving his wife's automobile which was parked down the street, to which defendant replied he 'didn't care who was driving.' The three riding on the front seat, with Sarver driving, started toward defendant's home, but before getting out of town defendant gave Fuller money with which to buy a pint of whiskey at the ABC store. The three, Sarver, Fuller and defendant, drank approximately a fourth of a pint of whiskey from another bottle which defendant had. Before reaching defendant's home they saw Emory Chewning at his mailbox. Defendant directed Sarver to stop and ask Chewning if he wanted a drink. Chewning answered in the affirmative and was told to get into the back seat. After he had gotten into the automobile, Sarver, over Chewning's protest, drove off. The four then drank half of the pint of whiskey which Fuller had bought for defendant. Instead of stopping at defendant's home, Sarver was directed by defendant to drive on up the mountain as he wanted to see a farm owned by Fuller. Before reaching this farm, defendant, on the pretext of desiring to look at another place, directed Sarver to turn left on an unimproved road. After driving approximately 75 yards, defendant said: 'This is far enough.' Sarver stopped the car, defendant opened the door, got out, pulled his gun from under his belt, and said to him: 'I brought you out here to kill you * * * get out and start walking. ' Sarver did not obey, but said: 'There was no need in that. ' Defendant, with his gun in his hand, turned to Fuller, and said: 'Get out.' When Fuller did not immediately obey the order, defendant said to him: 'Do you want me to kill you too? ' Fuller got out on the right side, close to where defendant was standing. Defendant, pointing the gun at Chewning, told him to get out on the opposite side, and ordered Chewning and Fuller to 'walk behind the car,' which they did, and started down the road. Before they had taken more than fifteen steps, defendant said: 'Come back, don't you run, if you do I will shoot you. ' He then turned to Sarver, who was still seated under the steering wheel, and renewed his former accusation that Sarver had been talking about him and a woman. Defendant told Sarver several times that he was going to kill him and then kill himself. Sarver was begging and pleading with defendant not to kill him. The last thing he was heard to say was that he had a 'wife and child to support, please don't shoot. ' Defendant, standing by the open door of the car, fired three times at Sarver. One bullet entered the right eye and came out an inch over his left ear; another 'went in about the mid-section where the collar bones meet, went diagonally and came out about the eighth rib on the left side, and the other one went in his ear and then went down his neck,' and lodged in his chest. Defendant went behind the car and fired three shots, each bullet going through the brim of his hat, not touching him. While reloading his pistol, he heard Sarver groan, and said: 'I don't believe I killed the son-of-a-bitch. ' He walked back to the door and shot twice more at Sarver. He returned to the rear of the car and fired two more shots at himself, but was struck by only one bullet, which entered his head just above the right ear, fractured his skull and lodged under the skin on top of his head, causing him to lose consciousness and fall.

Fuller and Chewning pulled Sarver's body from under the steering wheel, put defendant on the back seat, hid the pistol, and started to the hospital at Pearisburg. After going approximately two miles defendant regained consciousness and asked 'Where is my gun.' Chewning replied 'It is over there where you used it. ' He asked Fuller the same question. Chewning, fearing that Fuller might tell defendant where the gun was, said: 'I told you we left it over there where you used it,' to which defendant replied: 'I know you are a demned liar.'

On arrival at the hospital Chewning went in to obtain aid and, as he started back to the car, he met defendant entering the hospital unaided, fully conscious, but bleeding from the bullet wound in the side of his head.

Robert McCormick, Chief of Police of Pearisburg, stated that he reached the hospital about fifteen minutes after the parties arrived. He found Sarver dead, his body still in the car. He saw defendant about 2:30 p.m., and found him rational and normal except for the head wound. The witness, in response to a question asked by defendant about Sarver, told him that Sarver was dead, to which defendant replied: 'I have been intending to do it for several weeks.'

Shortly after 6:30 p.m. on the same day, defendant asked James Osborne, deputy sheriff, who was guarding him in the hospital, how many times Sarver was shot. When the witness said 'two or three times,' defendant replied that 'he wished he had shot him six or eight more times. ' At the time defendant appeared normal and rational. Two days later (Sunday afternoon) defendant, of his own accord, began talking about having shot Sarver and told the witness if he had to do it over he would not do it.

Fuller and Chewning testified that from the time they joined defendant until the time of the killing, he appeared normal, rational and in full possession of his mental faculties; that he was not nervous or excited at the time of the killing. He was unconscious from the time he shot himself until en route to the hospital when he began to inquire about his pistol.

Seven witnesses who saw defendant on February 16, 1951, either before or after the killing, testified that he did not appear to be nervous or excited, but calm, deliberate, normal, rational and in full possession of his mental faculties. No witness testified to the contrary.

The testimony for the Commonwealth proves a cold-blooded, deliberate, premeditated murder, and fully supports the finding of the jury.

The only defense offered is that at the time of the killing defendant was suffering from diabetes and was 'in insulin shock' to such an extent that he was insane.

Defendant took the stand in his own behalf and did not deny any of the testimony given by witnesses for the Commonwealth, except he did deny he had threatened Sarver's life. He testified that he did not remember anything that occurred from the time he and Fuller, with Sarver driving, were 'going out the highway' until he was talking to Ed Hedrick, sergeant of the State police force, in the hospital. (Ed Hedrick testified that he reached the hospital approximately thirty minutes after defendant was admitted). Defendant did not deny making the statements to the other police officers, buying the bottle of liquor, and drinking with his three companions. His answers to the specific questions were 'I don't remember.'

Defendant testified that he remembered going to Sarver's home and talking with him about the derogatory statements that he had heard Sarver had made about him and the woman. He remembered that they quarrelled, but he denied that he threatened to kill him. He said that a short time after this quarrel with Sarver, he came to the conclusion that he had been misinformed as to what Sarver had said about him, so he apologized and their friendship was renewed. He had no reason or desire to shoot Sarver. He bought the pistol for the purpose of killing himself. He offered no explanation as to why it was necessary to purchase 18 shells for this purpose.

Dr. W. C. Caudill testified that he was defendant's family physician and had known him for approximately 30 years. In June, 1950, upon an examination, he found that defendant had a tumor...