Ward v. Com.

• Decision Date: 12 October 1964
• Citation: Ward v. Com., 138 S.E.2d 293, 205 Va. 564 (1964)
• Court: Virginia Supreme Court
• Parties: Malcolm Leon WARD, Jr. v. COMMONWEALTH of Virginia.

Page 293

138 S.E.2d 293

205 Va. 564

Malcolm Leon WARD, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 12, 1964.

T. Brooke Howard, Alexandria, for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, I'ANSON and CARRICO, JJ.

WHITTLE, Justice.

This case is before us upon a writ of error to a final judgment entered on the 9th day of July, 1963, wherein appellant, Malcolm Leon Ward, Jr., herein sometimes referred to as defendant or Ward, was found guilty of the first degree murder of Donald G. Cooley and sentenced to 40 years in the penitentiary.

The record discloses the following material proceedings in the trial court:

On the 3rd day of July, 1962, defendant was charged with murder. A warrant was obtained from a justice of the peace by defective Allen of the Alexandria police department, and on the same morning at 10:00 a. m. defendant, represented by counsel of his own choosing, was taken before the judge of the municipal court for a preliminary hearing. On motion of defense counsel the hearing was continued to the 11th day of July, 1962, at which time defendant was remanded to the grand jury and indicted for the murder of Cooley.

On the 17th day of June, 1963, defendant was arraigned and entered a plea of 'not guilty'. A motion was filed by defendant seeking to require the Commonwealth to make an election as to the charge upon which he was to be prosecuted, and at the same time a motion for a bill of particulars was filed. The court denied both motions, and exceptions were duly taken.

The record discloses that in April, 1962, defendant, then of the age of 19, and William Bodmer, known as Billy Bodmer, who was then 16 years of age, were friends living in the same vicinity. It appears that they had met at McArthur school in the neighborhood; they had known each other according to the defendant for only a few months, and according to Bodmer for about 5 years; prior to April Bodmer had entertained the thought of killing his stepfather, Donald G. Cooley, and had studied several ways to carry out his plans.

About a week before July 2, 1962, the date of the killing, Bodmer was 'put on restriction' by his parents because he had set off a fire extinguisher at the school. He was ordered not to leave his house. During this time defendant called Bodmer on the telephone and asked him to 'come out'. Upon being told he was restrained by his parents from going out, defendant suggested that these were his stepparents and if he wanted to leave the house it was all right for him to do so since they were not his real parents. (Mrs. Cooley was Bodmer's mother and Cooley was his stepfather) Bodmer testified that defendant then asked him why he did not kill them.

A week later Bodmer and defendant discussed plans as to how to carry out the suggested killing. Several gruesome plans were discussed between the two and finally, according to Bodmer, a plan was settled upon wherein Bodmer was to stab his stepfather with an ice pick and defendant was to shoot Mrs. Cooley. They were to put the bodies in the trunk of a car, and were to take them 50 miles from the scene and place them in the woods, after which they were to return to their respective homes. According to Bodmer, Ward said he knew some friends who would pose as Bodmer's parents and would telephone the Alexandria passenger station to buy train tickets for a supposed extended trip. In that way, if anyone asked Bodmer where his parents were he could tell them they were on a trip.

Bodmer further testified that on the day before the murder, at about 2:00 p. m. he was at defendant's home and in a discussion about using the ice pick as the murder weapon defendant told Bodmer where to stab the victim in order to kill him instantly.

Suffice it to say that this plan was adopted, although as will be seen it was not consummated in every particular. Defendant admitted securing a .22 rifle and later borrowing 7 or 8 bullets from a neighbor, which he said were to be used on a hunt. On the evening of the murder both defendant and Bodmer went to the Cooley home. Mr. Cooley was asleep in a chair and Mrs. Cooley was engaged in household duties. When Mrs. Cooley left the house and went into the yard for some purpose, defendant suggested that Bodmer kill his stepfather now 'while your mother is not in here'. Whereupon, Bodmer plunged the ice pick into his stepfather's chest, continuing to stab him again and again. Cooley arose from the chair and struggled towards the kitchen in the direction of the defendant who was standing with the loaded rifle in the doorway of that room. At this moment defendant raised the gun and shot Cooley in the stomach.

When Mrs. Cooley returned, Bodmer pushed her and her wounded husband into the bedroom where he stabbed his mother several times. After the murder of Cooley and the wounding of his wife, Bodmer and Ward left, driving away in the Cooley family car. They parted company in Alexandria, Ward returning to his home and Bodmer going to Baltimore where he was later apprehended.

Defendant Ward reached his home at 9:05 p. m. and found police officer Shockley there, whereupon the officer asked him where he had been. Defendant replied that he had witnessed a terrible thing, that it was horrible and that he wanted to talk to him and tell him all about it. Prior to Ward's making a statement to the officer, Ward's father said to him, 'You don't have to say anything unless you see an attorney. Just give him your name and address and such.' But defendant replied, 'No, I want to tell you.' Whereupon, defendant told the officer that while at the Cooley residence he had seen Billy Bodmer stab his father; that Billy had called his mother into the house and said something was wrong with his father; that after he had seen the stabbing (of Cooley) Cooley got up from the the chair and came towards him (the defendant) and he had a gun in his possession at that time, and when Mr. Cooley came towards him, his (Cooley's) hands were in the air. At that time the defendant 'went away from Mr. Cooley' and as he 'went', the gun accidentally went off.

Later the officers secured two statements from defendant. Before taking each statement detective Allen interrupted defendant and 'told him that anything he said could be used against him if he was involved in it and that he also had a right to consult an attorney.' Whereupon defendant said he understood that and voluntarily gave the two statements referred to.

At the trial of defendant his counsel entered into a stipulation that the rifle filed as an exhibit was the gun used by defendant, that it was in the possession of defendant at the time it was fired, and that the bullet that was fired from it struck Donald Cooley. It was also stipulated that the bullet filed as an exhibit was the bullet fired from the gun and was the one removed from the body of Donald Cooley; that the autopsy report and medical examiner's report were stipulated as a Commonwealth exhibit, the autopsy showing the cause of death to be due to the blood in the thoracic cavities, the pleural cavities, and also in the abdominal cavity, resulting from the stab wounds and gunshot wounds, respectively.

Defendant presents five questions on this appeal in which he contends the trial court erred. These will be taken up in the order presented.

'1. Did the court err when it denied the motion of the defendant, asking that the Commonwealth Attorney be required to elect whether he was going to try the defendant on a charge of being the actual perpetrator of the crime, or as an aider and abettor in the second degree of first degree murder?'

Code § 19.1166 contains the form which is deemed sufficient as an indictment for murder. That form was used in this case. An indictment for murder in the first degree under this Code section need not charge specifically the facts showing the offense. The form of an indictment for murder employed in this case is sufficient to charge murder in the first and second degree or any lower grade of homicide. It is not necessary that the indictment should charge murder in the first degree or use that description which, according to the statute, constitutes that degree of offense. 9 M.J., Homicide, § 51, at page 387.

Under Code § 18.1-11 principals in the second degree may be indicted, tried, convicted and punished in all respects as if a principal in the first degree. A principal in the second degree is one not the perpetrator of the crime, who is present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d 452, 457. Since in the instant case the indictment contained but one single count and charged only one homicide, the Commonwealth was not required to elect whether it would prosecute the defendant on a charge of aiding and abetting or being a principal in the first degree. There is no merit in this assignment.

The second question reads:

'2. Did the court err when it failed to require the Commonwealth to give the defendant a brief statement of the circumstances on which it intended to rely to prove the guilt of the defendant?'

To shorten this question, was the Commonwealth required to give defendant a bill of particulars?

The decision as to whether or not a bill of particulars should be given in a criminal case is within the sound discretion of the trial court. Jennings v. Commonwealth, 133 Va. 726, 112 S.E. 602; Snead v. Smyth, 273 F.2d 838, 841 (4th Cir. 1959).

The case of Livingston v. Commonwealth, 184 Va. 830, 837, 36 S.E.2d 561, 565, states the function of a bill of particulars. There it is said:

'It is true the bill of particulars is not for the purpose of charging the offense. The indictment must to that. The accused cannot be tried upon a bill of particulars alone. How...