Vlastaris v. Commonwealth

• Decision Date: 14 March 1935
• Citation: 164 Va. 647
• Parties: PHILLIP VLASTARIS v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 647

164 Va. 647

PHILLIP VLASTARIS v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Browning, JJ.

1. HOMICIDE — Self-Defense — Necessity or Reasonable Apprehension of Danger Must Be Shown. — The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity.

2. HOMICIDE — Self-Defense — Bare Fear Insufficient to Warrant Killing — Necessity for Overt Act. — A bare fear that a man intends to commit a felony, however well grounded, will not warrant the killing of the party by way of prevention. There must be some overt act indicative of imminent danger at the time.

3. HOMICIDE — Self-Defense — Weight and Credibility of Conflicting Evidence Is for Jury — Affirmance of Verdict Not Plainly Wrong — Case at Bar. — In the instant case, a prosecution for homicide, accused and the deceased, formerly associated in business, quarreled, and deceased assaulted the accused on two occasions, the last on the day of the homicide, cursed him and threatened to kill him. Other witnesses corroborated accused as to the assaults. After the second assault accused armed himself with a pistol and shortly thereafter met the deceased on the street. The latter again threatened to kill the accused and advanced on him with his hand in his hip pocket. The accused fired once into the air and when the deceased failed to stop, fired three or four shots at him. The deceased did not have on a coat and was not armed. The witness who corroborated the accused as to their last meeting was shown to have had a criminal record and spent several weeks in jail with the accused. No one testified to ever having seen the deceased with a pistol, except the accused.

Held: That it could not be said that there was no conflict in the evidence and that being so, the credibility and weight of the testimony were questions for the jury. Their verdict, not being plainly wrong or without evidence to support it, must be affirmed.

Error to a judgment of the Corporation Court of the city of Norfolk.

The opinion states the case.

B. A. Banks, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.

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

Emile Schop was shot and killed by Phillip Vlastaris on the afternoon of September 23, 1933, on Monticello avenue, in the city of Norfolk, Virginia.

During the latter part of the year 1932, the two men appeared to have been on friendly terms. They were for a time jointly operating a push cart for the purpose of vending fruits. The accused testified that on one occasion, while they were jointly engaged in the above enterprise, Schop took the push cart, without accused's permission, and sold the wares without making compensation to him for his share in the proceeds. This was the beginning of their troubles, of which there were many, culminating in the tragedy of September 23, 1933.

The accused was living at this time over the store of one Frank Stellius, and when he was not engaged in his work, spent much of his time there. The first personal encounter between them was on December 28, 1932, in the Stellius store. On this occasion Schop went into the store and assaulted the accused by striking and kicking him which caused the accused to walk lame for several weeks. Theretofore the accused had developed a rupture, which was aggravated by being kicked by Schop. Again on September 23, 1933, Schop entered the store and made a very opprobrious remark to the accused, who then asked him when he intended to pay him the money that he owed him. Schop then applied to him the vilest epithet. The accused approached him for the purpose of ejecting him from the store when Schop again applied to him the most abusive language and struck the accused and kicked him in the rupture. The accused picked up an axe at a wood pile but did not advance toward Schop, who said to him, with an oath, that he would kill him the next time, "anyhow."

This was in the afternoon about an hour before the meeting on Monticello avenue which resulted in the fatality.

The accused testified that on two prior occasions Schop had drawn a gun on him without provocation.

The testimony of the accused as to the shooting was that he was on his way to a theatre and had taken the direct and accustomed route. That as he was passing along the street he looked up and saw Schop, about fifteen or twenty feet away, approaching him from the opposite direction, both walking on the sidewalk on the same side of the street; that their meeting, so far as he was concerned, was accidental; that he stepped off the sidewalk to cross to the opposite side of the street and was six or eight feet into the street when Schop called and said: "Stop, you bastard, I'll kill you now" and threw his hand in his hip...