Timmons v. Com.

• Decision Date: 04 March 1963
• Docket Number: No. 5539,5539
• Citation: Timmons v. Com., 129 S.E.2d 697, 204 Va. 205 (1963)
• Court: Virginia Supreme Court
• Parties: JAY R. TIMMONS v. COMMONWEALTH OF VIRGINIA. Record

Page 697

129 S.E.2d 697

204 Va. 205

JAY R. TIMMONS v. COMMONWEALTH OF VIRGINIA.

Record No. 5539.

Supreme Court of Appeals of Virginia

March 4, 1963.

William King Mapp (Mapp and Mapp, on brief), for the plaintiff in error.

William P. Bagwell, Jr., Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: SPRATLEY

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

Jay R. Timmons was, at the February, 1962, term of the Corporation Court of the City of Norfolk, Part Two, indicted for the murder of Ann E. Bannon. The indictment was of the statutory short form, Virginia Code, § 19.1-166. He was tried on April 17 and 18, 1962, upon a plea of 'not guilty by reason of insanity.' The jury found him guilty of murder of the first degree and fixed his punishment at death. On June 11, 1962, motions to set aside the verdict were overruled and judgment was entered in accordance with the verdict. Counsel for the defendant duly excepted on the ground that the judgment was contrary to the law and the evidence. We granted writ of error.

The facts are in little conflict, save as to the mental condition of the defendant at the time of the homicide.

The evidence and the circumstances of this proceeding may be summarized as follows:

On October 19, 1961, Mrs. Ruth Lewis, 24 years of age, went to the home of her cousin, Mrs. Ann E. Bannon, at 221 Fife Lane, Norfolk. As she entered the house Mrs. Bannon was seated at her writing desk. Mrs. Lewis said that as she took a seat, Timmons emerged from the bathroom of the house, spoke to her, and walked by her over to the front door. She turned to ask Ann what she was doing, and at this time Timmons drew a gun out of his pocket, aimed at her legs, and fired. Her legs were crossed, and the shot went through both legs. Ann screamed: 'What have you done?' Timmons said: 'Look you two, this was an accident.' He then slammed and locked the front door. Ann said: 'All right, but I will have to call an ambulance.' Ann ran to the bedroom where the telephone was, and Timmons ran after her and caught hold of her. She struggled and screamed until she got away from him. She was unable to get to the telephone, so she ran out of the bedroom and tried to get out of the front door. Timmons again ran after her and grabbed her. He pulled her in front of Ruth and shot her, and 'there was a series of shots' following. Three bullets hit Ann, and she fell to the floor and didn't move. One of the shots hit Mrs. Lewis in the back of her neck, the bullet lodging in the roof of her mouth. She said she could not see anything of Ann except the upper portion of her body, because she was unable to move due to her wounds; but she did hear Timmons 'ripping at' Ann's clothes. After that, Timmons went back to Ruth, took her by her ankles, pulled her out of the chair on to the floor, tore her dress and undergarments, and raped her for 'a couple of minutes.' He then went back to Ann 'for a minute or so,' then returned immediately to Ruth, and raped her a second time. Afterwards he went to the kitchen and she heard water running. Next he went to the telephone, called the police department, and said to Ruth: 'I had better get you to the hospital.' He took her to the hospital. In the meantime, Ann Bannon had died as a result of her wounds. When the defendant telephoned, he told someone who he was and that he had killed two women. After taking Ruth to the hospital, Timmons returned to Mrs. Bannon's home, where he was arrested by the police.

The Commonwealth introduced in evidence, over the objection of the defendant, photographs of Ann Bannon's body showing the body from different angles, and also some 'slides' showing the course of the bullets through her body. The photographs were taken shortly after Mrs. Bannon was shot and before her body was moved. They show Mrs. Bannon's body lying on her back, with her dress pulled up above her waist, and her undergarments pulled down below her knees. The 'slides' showed where three bullets entered the body of Mrs. Bannon and where two left. At least two entered from the back of her body. The defendant objected to the introduction of the photographs on the ground that they would inflame the jury against him; while the Commonwealth asked that they be admitted under its theory that the killing was done in the commission of, or attempt to commit rape, and showed the motive of the defendant. No exception was taken as to the admission of the 'slides.'

Sergeant W. E. Farr, of the Norfolk Police Department, testified that he arrived at the scene of the killing about 5:30 p.m. on October 19, 1961; and that he saw the defendant the next day, at which time the defendant freely and voluntarily described the events which took place at the Bannon residence at the time of the killing. Defendant first told the officer that he drank a beer or two, bought some whiskey, and after a trip to Virginia Beach and a 'little crap game,' had another beer, came back to Norfolk, and didn't remember anything after that time. Being reminded that he had left out the most important facts, defendant said: 'Well, I will tell you about it,' and then voluntarily signed the following statement, which was written by Officer Farr:

'Q. Tell us, in your own words what happened at 221 Fife Lane, October 19, 1961, at approximately 5:15 P.M.

'A. About 5:00 P.M. I went by Ann's house and she let me in the front door. Ruth came up and came in the house. She sat down in the big chair in the living room in front of the window. I went to the bathroom and came out and stood by the front door. Ann was either standing or sitting at the desk by the door.

'I pulled the pistol from my hip pocket and started shooting. A bullet hit Ruth first and Ann ran into the bedroom and grabbed the phone and I pulled her away from the phone. She ran back into the front room and I started shooting again, but I don't know how many times I shot.

'Ann ran for the front door when I was shooting and I pulled her away from the front door and I shot her then. After I shot her, I turned around and shot again. I don't know if it was Ruth or Ann. Then I walked over to Ruth and I raped her and I walked over to Ann, turned her over. She was laying sideways and opened her eye up. She was trembling then. I might have pulled her clothes down but I didn't rape the girl.

'I called the police operator and I came back and put Ruth in my arms and carried her to DePaul Hospital. I carried her in and laid her on the stretcher. I got in the car and came back to Ann's house. I walked up to the motorcycle officer and handed him the keys and the next thing I was in the police car.

'Q. Jay, you were treated for overdose of sleeping pills. Tell us when you took them.

'A. After I realized what I had done, I wanted to die and I took the pills.

'Q. Where did you get the pills?

'A. I had them with me when I went there.

'Q. How much had you had to drink?

'A. Part of a pint of whiskey and four or five beers.

'Q. What time did you quit work?

'A. About 4:00.

'Q. You refer to Ann. Do you mean Ann Bannon?

'A. Yes, sir.

'Q. You refer to Ruth in your statement. Do you mean Ruth Davis Lewis?

'A. Ruth Davis. I don't know her last name.

'Q. Where did you get the gun?

'A. Ben Williams, second house past Princess Anne Road on Chapel Street.

'Q. How long had you had it?

'A. About one day.

'Q. How much did you pay for it?

'A. I borrowed it from him. I had borrowed it before because I carried a good bit of money at times and my gun had been stolen at Virginia Beach.

'Q. I show you a 32 calibre automatic Serial No. 898294. This is the gun used on Ann and Ruth?

'A. Yes.

'Q. How long have you known Ann?

'A. Twenty years. We growed up together in Berlin, Maryland, along with Ruth.

'Q. What did Ruth say to you before you raped her?

'A. Nothing that I recall.

'Q. Are you comfortable at this time?

'A. You are treating me all right.

'Q. Why did you go to Ann's house?

'A. I don't know. I just went there. I knew her father and mother and I had been there several times before.

'Q. Had you had intercourse with Ann?

'A. No, sir.

'Q. Had you had intercourse with Ruth before this happened?

'A. No, sir.

'Q. Is this statement the truth to the best of your knowledge and belief and given freely without threat or promise by us or any member of the Norfolk Police Division?

'A. That's right.

'Q. Anything else you care to say?

'A. That's all, I guess. I want to die. I ain't got nothing to live for.'

The defendant introduced two psychiatrists as witnesses. Dr. Dietrich Heyder, who examined the defendant about 11:00 a.m. the day after the crime, said, in part: 'It could be observed that this man was at the time in practically perfect mental health and there was no disturbance of the mental status.' The other psychiatrist, Dr. Robert H. Thrasher, was of opinion that defendant was in a psychotic state on the day of the crime, and that he 'wouldn't trust' the defendant not to kill Ann Bannon again if she were living, and that the same applied also to other persons. He further said that he had a 'sick, mixed up mind,' and that, 'Even the stress of normal living outside may bring out his hostile, aggressive impulses.'

In rebuttal, Dr. Joseph R. Blalock, Superintendent of the Southwestern State Hospital, testified that from his observation of the defendant, the defendant knew the difference between right and wrong and could adhere to the right. Dr. Charles Nemeth, who had made a closer examination and observation of the defendant at the State Hospital, said he found the patient neither psychotic nor insane, and that he knew the difference between right and wrong.

The evidence shows that the murder weapon, a 32 calibre pistol, was apparently stolen from H. C. Divers, the owner, between the latter part of September, 1961, and the day of the murder.

On the afternoon of the murder, Mrs. Mary Ballard, who lives on Fife Lane about...