Updike v. Commonwealth

• Decision Date: 14 January 1946
• Citation: 36 S.E.2d 519,184 Va. 862
• Parties: UPDIKE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

36 S.E.2d 519

184 Va. 862

UPDIKE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court of Pittsylvania County; Kennon C. Whittle, Judge.

Alexander Updike was convicted of voluntary manslaughter, and he brings error.

Affirmed.

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

Eugene C. Hurt, Jr. and A. H. Light, both of Chatham, for plaintiff in error.

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

HOLT, Justice.

On March 19, 1945, Alexander Updike was indicted for murder charged to have been committed on January 15, 1945. He was tried on that indictment on March 21, 1945, by a jury which found him guilty of voluntary manslaughter and fixed his punishment at three years' confinement in the penitentiary. That judgment is now before us on a writ of error.

On the afternoon of January 15, 1945, the accused went to Slaton's filling station located at Motley. Shortly thereafter came Mott Short. These two drank some wine and beer there. Later, about 7 o'clock in the evening came Roger Wilkes. Wilkes said that at about 9 o'clock, "I started up the road, and they said if I was going that way, they was going too." They overtook Wilkes, and the three of them went south along the paved road known as U. S. Highway No. 29. It had been raining some on that day together with traces of snow. Wilkes knew Updike but did not know Short. The three of them started to their several homes, taking with them some wine and a package, which Slaton gave to Short. Soon thereafter they stopped to take a drink, and it was then that Updike took from Short the package which Short was carrying and which Short claimed belonged to him. The ownership of this package, Wilkes said, was in dispute. He tells us what then occurred:

"Q. What did they do? A. Kept arguing on down the road a little ways. Then Mr. Updike, he reached over and got Short around the neck and Short told me to make him turn him aloose and I went over to make him turn aloose and he hit at me with something or another and I run down the road."

This is his account of what then occurred:

"Q. Did you see him hit Short? A. No, sir, I heard him hit him after I got down the road.

"Q. What did Short say? A. Short told him not to hit him.

"Q. Just what words did he use? A. He said, 'Oh, Lordy, don't hit me'.

"Q. And what did Updike say? A. I didn't hear him say anything.

"Q. About how far were you from them? A. About twenty steps, or somewhere along there.

"Q. What did you do then, or what did Updike do? A. I flashed the light to see where he was and he was standing in the road and he told me to wait for him.

"Q. Who? A. Updike.

"Q. Where was Short? A. I didn't see him nowhere."

Wilkes went south down the road from where this scuffle took place. Updike threw a stick at him and told him to wait. He did wait; Updike caught up with him and told him that he had a mind to kill him. Wilkes protested, drew a pistol and backed off a few steps, whereupon Updike said to him: "* * * he told me if I never would tell it he wouldn't kill me, so I promised him I wouldn't tell it." They then continued south on the main highway to the private road which led west to the Updike home. While on this private road Updike told Wilkes that he had had it in for Shorts for some time but did not state the occasion for the grudge. They then parted. Updike went on home; he could not find the key, knocked his front door down and went in.

Next morning, Mr. Kelly Kattes, a brother-in-law of Updike, as he came down the road heard a groan and found Short. He was then unconscious; he lay with his head over toward the waterdrain, his feet three or four feet from the edge of the cement; his cap was about eight inches away with a hole cut in it, and his overalls were torn on the right leg from the waist to the knee. An ambulance was summoned, he was taken to a hospital and died without regaining consciousness.

The county coroner, Dr. H. H. Hammer, tells us the results of his examination:

"A. Well, he had an injury that extended from just above the right eye, six inches, I would say, more or less back along here (indicating). That started over the right eye and that hole extended on back into here, and brains were in there. You could see where some of them had come out, and you could stick a probe on down into where his brains were. Then there was an area about an inch and a half long by three-quarters of an inch wide that the whole area--both plates of the bone--were pushed down, and then that crack extended from there on back to approximately two more inches, and there were two little scratches on the back of his hand and an old scratch on his knee. The scratch on his knee was old.

"Q. And how long was this wound on his head? A. It was six inches long.

"Q. Was there any broken arms or broken legs or anything like that? A. No, sir.

"Q. Nothing had run over him or anything like that? A. No, sir."

Wilkes himself was afterwards arrested-- maybe because he was suspected of being connected with this tragedy and maybe because he was carrying a concealed weapon. This was on the 18th of January. He made a statement in the presence of Sheriff Over-bey, of Deputy Sheriff Thomas and Updike, which does not differ materially from that testified to at the trial. Overby told Updike that things looked bad for him and that if he wanted to make a statement he had better make it. He made no denial in detail but denied the substance of Wilkes' account of what had occurred.

For the defendant it is argued that Short was probably killed by a southbound truck. Updike said that he had had no dispute with Short about any bundle given to Short by Slaton; that he and Short were on the best possible terms and were second or third cousins; that he had no scuffle with him such as was reported by Wilkes and denies in greatest detail Wilkes' account of the struggle between him and Short. He said that Short left him where his road turned off and continued south on Route No. 29. There is a private road to Short's home running to the east, north of the Updike road which runs west, and about 200 feet south of where Short's body was found. There were no footprints around where the body lay. It is also true that there were tire marks which seemed to indicate that a truck going south swerved somewhat to the west and ran off on the road shoulder near it.

Ross Rorer is a police officer of Pittsylvania county. On Thursday, the 18th of January, he took Wilkes to where the body was found. He then saw no signs of a scuffle on the road, either by Short or any one else. He said that Wilkes told him he last saw Short where he and Updike turned to the right to go up toward the Updike home, and that Short left them at this intersection and proceeded south on the main highway; and that Wilkes on this occasion said that this was the first that he knew about the tragedy.

Paul Pickeral, a witness for the defendant, said that there was a mark on the hard surface of the highway which seemed to show that a body...