Tilton v. Com., 4333

• Decision Date: 17 January 1955
• Docket Number: No. 4333,4333
• Citation: 85 S.E.2d 368,196 Va. 774
• Parties: LANVEE IRBY TILTON AND GROVER WILLIE NEWMAN v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 368

85 S.E.2d 368

196 Va. 774

LANVEE IRBY TILTON AND GROVER WILLIE NEWMAN v. COMMONWEALTH OF VIRGINIA.

Record No. 4333.

Supreme Court of Appeals of Virginia

January 17, 1955.

J. L. Tompkins, for the plaintiffs in error.

J. Lindsay Almond, Jr., Attorney General and Henry T. Wickham, Special Assistant Attorney General, for the Commonwealth.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

This writ of error brings to us for review a final judgment of the court below by which Lanvee Irby Tilton, aged seventeen, and Grover Willie Newman, aged twenty-three, were sentenced to death by electrocution after each had pleaded guilty to an indictment for murder. The determination of the questions presented requires a full statement of the proceedings below, as well as the undisputed underlying facts.

On the afternoon of February 10, 1954, T. Eldridge Bunn was found shot to death in his store near Hillsville in Carroll county. Suspicion was directed toward Tilton and Newman and they were arrested the same afternoon and lodged in jail. At first they denied their guilt, but during the night they separately confessed to the sheriff and the Commonwealth's attorney that pursuant to their prearranged plan they went to the store for the purpose of shooting and robbing Bunn. Each was armed with a .22 rifle. Upon entering the store Newman 'set his gun down beside the door' while Tilton held his rifle. As Bunn was in the act of placing on the counter some articles of merchandise which the defendants had ordered, Tilton shot him twice in the face and again in the head. The defendants took a total of $33 from the cash drawer and the billfold on Bunn's body.

On the day following the killing separate warrants were procured for the defendants and served on them in jail. Upon examination the trial justice held the two defendants for the grand jury. Separate indictments were found against them at the March, 1954, term. On March 15 the two indictments were heard together, the defendants being represented by counsel of their choosing. Two motions were made on behalf of the defendants:

(1) That the indictment against Tilton be quashed 'because he had not been tried before the Trial Justice of Carroll County sitting as the Juvenile and Domestic Relations Court Judge;' and

(2) That each defendant be 'examined by one or more physicians skilled in the diagnosis of insanity in accordance with section 19-202.'

The court overruled the first motion and counsel for the defendant, Tilton, excepted, as the order states, on the ground that there had been no compliance with Code, §§ 63-268, 63-273, and 63-288.

In support of the second motion the defendant, Tilton, offered as a witness the sheriff, C. I. Jackson, who testified that 'Tilton told me on one occasion that he had seen a little devil in his cell. He was kindly (sic) laughing about it. He had been in a cell away from the other prisoners and after this I moved him to another cell and put Newman in the cell Tilton had been in. I heard nothing further from him. This did not indicate to me that he was mentally ill. It appears to me a fairly normal reaction after the crime that he had committed. ' There was no evidence in support of the motion on behalf of Newman.

In overruling the motion for mental examinations of the two defendants the order recites that 'the court is of opinion that Tilton is sane and that there is no reason to believe that he is mentally ill or for any reason incapable of being tried. ' The order recites no finding as to the defendant, Newman.

On the same day the case came on to be tried on the merits. Each defendant, after having consulted with and been advised by counsel, pleaded guilty to the indictment and waived trial by jury. (Cf. Const., § 8.) Thereupon the court heard the evidence, including the confessions of the two defendants, the testimony of the coroner that death was caused by the rifle bullets which had been fired into Bunn's head, and the testimony of an agent of the Federal Bureau of Investigation that the two bullets taken from the body of the deceased had been fired by Tilton's rifle.

Tilton's mother testified that he was seventeen years old on the day of the trial.

Upon consideration of the evidence the court found both defendants guilty of murder in the first degree, as charged in the indictments. Pursuant to Code, § 53-278.1 (as amended by Acts 1952, ch. 233, p. 319), upon motion of the defendants, before fixing punishment or imposing sentence, the court directed its probation officer 'to thoroughly investigate and report upon the history of both of the accused, * * * and any and all relevant facts to the end that the court may be fully advised as to the appropriate and just sentence to be imposed.'

On March 30 the probation officer appeared in open court and read his written report in the presence of the two defendants and delivered a copy thereof to their counsel. Counsel for the defendants was given the right, but declined, to cross-examine the probation officer as to any matters contained in the report.

In his report the officer found no 'extenuating circumstances' on behalf of either defendant. Their only excuse for the crime was that they wanted the money which they expected to receive from the robbery. The report shows that Tilton was reared by a widowed mother. He 'was almost 17 years of age at the time this offense was committed, seems to be a fairly intelligent boy. He was old enough and intelligent enough to know right from wrong and to realize the seriousness of the offense he committed.'

After considering the evidence and probation report the court sentenced both defendants to death by electrocution. Whereupon Newman remarked to the court, 'May you die with your boots on, you God damn son of a bitch. ' Upon the pronouncement of sentence Tilton remained mute.

The sufficiency of the evidence to establish the finding that the defendants were guilty of murder in the first degree is not challenged. It shows beyond doubt a 'wilful, deliberate and premeditated killing' within the statutory definition of that offense (Code, § 18-30), for which the extreme penalty may be exacted. Code, § 18-31.

The only assignment of error applicable to Newman is that 'the court abused its discretion in refusing an order for each defendant to be examined by one or more physicians skilled in the diagnosis of insanity, in accordance with section 19-202. ' At the time of the trial ¹ Code, § 19-202, read:

'When question of sanity raised, commitment before trial. -- If, prior to the time for trial of any person charged with crime, either the court or attorney for the Commonwealth has reason to believe that such person is in such mental condition that his confinement in a hospital for the insane or a colony for the feeble-minded is necessary for proper care and observation, the court or the judge thereof may, after hearing evidence on the subject, commit such person, if a white person, to any State hospital for the insane best adapted to meet the needs of the case * * *, pending the determination of his mental condition. In any such case the court, in its discretion, may appoint one or more physicians skilled in the diagnosis of insanity, or other qualified physicians, and when any person is alleged to be feeble-minded may likewise appoint persons skilled in the diagnosis of feeble-mindedness, not to exceed three, to examine the defendant before such commitment is ordered, make such investigation of the case as they may deem necessary and report to the court the condition of the defendant at the time of their examination. * * *'

In Wood v. Commonwealth, 146 Va. 296, 135 S.E. 895, we pointed out that this section places no obligation upon the trial court to appoint a commission for the examination of an accused except where the court or attorney for the Commonwealth has reason to believe that the accused is in such mental condition that his confinement in a hospital for the insane, or colony for the feeble-minded, for proper care and observation is necessary to attain the ends of justice. Moreover, we said that while the appellate court has the power to review the action of the trial court in refusing to commit persons pursuant to this section, it will not disturb the trial court's ruling unless it plainly appears that there has been an abuse of discretion. (146 Va., at page 305.) See also, Delp v. Commonwealth, 172 Va. 564, 571, 200 S.E. 594, 596.

Here there was no showing that the court or attorney for the Commonwealth had reason to believe that either defendant was in such mental condition that his confinement in an institution for care and observation was necessary to attain the ends of justice. Indeed, as has been said, there was no evidence at all in support of the motion on behalf of Newman. On behalf of Tilton, a single witness, the sheriff, merely testified that Tilton told him in a joking manner that on one occasion 'he had seen a little devil in his cell. ' Clearly, then, there is no basis for the assignment that the trial court abused its discretion in refusing to order a mental examination of the defendants under this section.

The other errors assigned on behalf of the defendant, Tilton, are:

(1) That he 'was not tried before the Trial Justice of Carroll County sitting as a Juvenile and Domestic Relations Court Judge;' and

(2) That 'the court failed to require a full and complete investigation of the physical, mental and social condition and personality of Lanvee Irby Tilton and the facts surrounding the violation of the law which is the cause of his being before the court,' under the 'mandatory' provisions of Code, § 16-172.42.

The argument under the first point is that the trial court, under the provisions of Code, 1952 Cum. Supp., § 16-172.41, should have transferred the case to the trial justice sitting as the juvenile court for disposition. This section reads:

'Transfer from other courts. - If...