Tillman v. Commonwealth

• Decision Date: 22 April 1946
• Citation: 37 S.E.2d 768,185 Va. 46
• Parties: TILLMAN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

37 S.E.2d 768

185 Va. 46

TILLMAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 22, 1946.

Error to Corporation Court of City of Norfolk, Part 2; J. Hume Taylor, Judge.

Spencer Tillman was convicted of murder in the second degree, and he brings writ of error.

Judgment affirmed.

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

T. Helm Jones, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for Commonwealth.

EGGLESTON, Justice.

Spencer Tillman, fifty-seven years old, a member of the Negro race, was found guilty by a jury of murder in the second degree for the killing of his wife, Estelle Tillman, and his punishment fixed at confinement in the penitentiary for five years. To review the judgment entered on that verdict the present writ of error has been allowed.

The couple had been married since 1938 and lived at 308 Cumberland street, in the city of Norfolk. The house has two stories. On the first floor is a front room, which was occupied by Carrie Scott, the foster mother of the deceased, a dining room, and a kitchen. Tillman and his wife occupied the front room on the second floor. The other two rooms on the latter floor were likewise occupied.

Although the accused at first denied the killing, he now admits that he shot his wife, killing her almost instantly, with a 25-cali-ber pistol, at about four a. m. on Monday, April 16, 1945. Later we shall relate the circumstances under which he said the shooting occurred.

About 6:30 a. m. on the day of the shooting, the accused, whose occupation was that of a longshoreman, knocked on Carrie Scott's door, gave her money for the purpose of paying certain insurance premiums which were that day due on policies covering his wife and others, saying that he was going to work and that Estelle was "asleep" in the dining room. When Carrie Scott arose she saw Estelle lying on a sofa in the dining room, with her face to the wall, and apparently sleeping. She was lying in a perfectly normal position for one asleep. She was fully clothed and her garments were in no wise disarranged. Aboutnoon it was discovered that she was not asleep but dead.

At first the occupants of the house thought that the woman had died of natural causes, and when her husband (the accused) was notified of her death he said nothing to refute this surmise or to indicate that he even knew the cause of her death.

The body was removed to a funeral establishment where it was viewed by the coroner who discovered a small wound in the chest. He notified Nowitsky, the coroner's investigator, of this fact and the two men at first concluded that the death wound had been inflicted by a small sharp instrument, possibly an ice pick. A search of the Tillman home revealed such an instrument. Nowitsky then interviewed the accused and asked what had caused the woman's death Tillman's reply was that he "didn't know, " that "they said she had died a natural death, " that he had gone to work about 6:30 in the morning and knew nothing about his wife's death until he had been "notified on the job" of it. Nowitsky then told the accused that an examination of the body showed that his wife had not died a natural death but had been murdered. The investigator questioned Tillman closely to ascertain whether the latter had not killed his wife with an ice pick. Tillman vigorously denied the imputation that he had killed her by this or any other means.

Later, an autopsy revealed that death had been caused by a 25-caliber bullet. Nowitsky then searched the premises of the accused for a second time and found a 32-cali-ber revolver in a bureau drawer in Tillman's bedroom. Since the caliber of this weapon did not match the smaller bullet which had caused the woman's death, the search of the premises was continued. Finally, a 25-caliber pistol was found concealed under a pan in the back yard.

The accused was again questioned and was told that his wife had been shot. He was shown the larger revolver and readily admitted that it was his. But he stoutly denied owning any other gun. The investigator accused Tillman of lying and told him that the death gun had been found in the back yard. For the first time, then, the accused admitted that he had killed his wife. In substance, his story was that he had caught her in the act of adultery with a strange man, and that in the heat of passion, engendered by this discovery, he had accidently killed her with a bullet intended for the paramour.

In reply to this the detective said: "Spencer, you know your wife is a prostitute and has been living in this house plying her trade for years and you know no excitement didn't come up to cause you to shoot someone on account of her being with another man. * * * You two have been scrapping long enough, and now you have finally killed her. What have you got to say about that?"

Tillman's reply was: "Captain, you know how it is when you are living with a woman. I tried to get rid of her before."

The accused admitted having made this statement, but explained that he meant thereby that he had informed her that he would apply to the juvenile court for "instructions" or advice about his relations with her.

The police records revealed that the accused had been arrested and convicted a number of times for cursing, abusing, threatening, and even assaulting his wife. The records also showed that she had been arrested on numerous occasions for "soliciting for immoral purposes."

On cross-examination, the accused admitted that his wife drank to excess and that when she did so, to use his own words, she was "a tough nut and would fuss with me and quarrel with me."

He gave, at the trial, this story of how the killing occurred: His wife left home about eight o'clock in the evening preceding the shooting, saying that she would spend the night out. About nine o'clock he retired. At approximately 3:30 a. m. he was awakened by the "backfiring of a passing automobile. His dogs in the back yard were whining and barking. He got up to investigate the cause of the disturbance and heard talking downstairs. Taking a flashlight and his 25-caliber automatic pistol, he went downstairs to the dining room where he discovered his wife and a strange man in the act of adultery on a sofa. He switched on the light andthe couple ran into the kitchen. The man tried to escape through the rear door, but when Estelle reminded him of the vicious dogs in the back yard he returned to the dining room and faced the accused across the dining room table. To use the words of the accused, "I lost my mind and went crazy." Indignantly he inquired of the man, "what in the hell are you doing in my house at this time of morning with your clothes off?" At that instant, he said, his wife handed to her paramour what he (the accused) thought was a weapon of some kind and which later turned out to be an ice pick. The man struck at the accused with this weapon and when he did so the accused fired. But the wife stepped between the two men and received the bullet in her chest.

According to the accused the wounded woman fell on the sofa nearby. He pursued the intruder down the hall, out the front door, and even to the porch where the man stumbled over a chair. As the man went down the hall and through the door, the accused tried to shoot him, but the pistol at first failed to fire. After the man had reached the porch the accused fired two shots which went wild, and the man escaped.

Upon his return to the dining room the accused found that his wife was dead. Her body was lying on the sofa with her face to the wall. Her clothes were smoothly and neatly arranged.

Mary Chamblee, an occupant of one of the rooms on the second floor, corroborated the story of the accused in some respects. She heard the voices of men talking downstairs, heard one pistol shot in the dining room, heard the noise of a person running to the front door and his stumbling over a chair on the porch, followed shortly thereafter by two pistol shots. But strange to say, she arose, dressed and left the house at about eight o'clock, without making any inquiry as to the cause or result of the shooting and disturbance which she had heard.

A neighbor likewise testified that he heard the pistol shots fired on the front porch and saw a man running from the Tillman home. But he, too, so far as the record shows, made no...