Webb v. Commonwealth

• Decision Date: 20 March 1930
• Citation: 152 S.E. 366
• Court: Virginia Supreme Court
• Parties: WEBB . v. COMMONWEALTH.

152 S.E. 366

WEBB .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 20, 1930.

Error to Circuit Court, Pittsylvania County.

D. E. Webb was convicted of second-degree murder, and he brings error.

Affirmed.

W. G. Vansant, of Chatham, and Carter & Talbott, of Danville, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

CAMPBELL, J.

D. E. Webb was indicted and tried in the circuit court of Pittsylvania county for the murder of Harold Vaden.The jury found him guilty of murder in the second degree, and fixed his punishment at confinement in the penitentiary for ten years, and sentence was pronounced accordingly.

The homicide occurred on February 16, 1928.It appears from the record that the deceased, a young man thirty-three years of age, six feet, two or three inches tall and weighing approximately one hundred and seventy pounds, was, at the time of the homicide, a resident of the village of Gretna.He and his wife lived in the neighborhood where the accused resided.Deceased was jealous of his wife, and at the time of the homicide was separated from her; the clear inference from the following facts and circumstances being that accused was the cause of the separation: Some time during the month of August, 1927, accused and Mrs. Vaden were seen together, by Arthur Oakes, on the highway some distance from Gretna.Accused told Oakes that his automobile was broken down; that the woman was a Mrs. Smith, a relative of his wife; that he wanted to get her to Chatham to meet her husband; and that he paid Oakes $3 to take Mrs. Vaden to Chatham.Accused admitted, when examined as a witness, that the woman referred to by Oakes was Mrs. Vaden, but denied any improper relations between them, and accounted for their being together as the result of an accidental meeting.In some manner not disclosed by the record, deceased heard of this incident.He confronted Oakes with Mrs. Vaden, and Oakes denied that she was the woman he saw with accused, giving as his reason for such denial: "I didn't want him to kill her right there at my home."

Two days after the highway occurrence Mrs. Vaden sent accused a note informing him that deceased did not know that she had gone to a dance on the August night in question.In possession of this information, accused, when interviewed by deceased in November, 1929, as to the whereabouts of his wife, denied having seen her on the day fixed by Oakes, in "order to shield her."In the meantime, accused had an interview with Oakes, who testified in regard to it as follows:

"I had information that Mr. Webb wished to see me, and I realized the position I was in and went over to Gretna to see him.He and myself had a conversation while in Gretna and he asked me to keep my mouth shut about seeing him and Mrs. Harold Vaden up the Martinsville road, and he said that Harold Vaden was a Ku Klux and that he could have every Ku Klux between my home and Lynchburg on he and myself if he found it out, and I told him it looked like it would do all parties good and would certainly please me to keep my mouth shut, and I would be glad to do it, and while I was there he said to me, 'As soon as Harold knows I am hauling his wife around I am going to have him to kill.'I said, 'Mr. Webb, if you have any such thought as doing that thing don't be preaching it to me, ' and I advised him to let Harold alone and change his ways of doing.He said Mrs. Vaden was as nice a woman as he knew and told me how they were thrown together; said he went to Henry county to sell an automobile and just got with Mrs. Vaden while up there; that she was a perfect lady and for me to keep my mouth shut.I told him I would be glad to."

The strained relations between deceased and his wife continued, and on January 22, 1928, deceased, in company with his brother, went to the railroad station where accused was employed as telegraph operator.Giles Vaden thus details what occurred at this interview:

"We went in and Harold said, 'Mr. Webb, I came down here to see you and have you explain to us where you were on that Tuesday (I think it was Tuesday) night in August.'He said, 'I spoke to you once before about it and asked you who the woman was with you on the Martinsville road broken down and you told me Mrs. Smith; that your wife was a Miss Smith and she was some of your kin people, and that you had a letter from her to prove who she was.'He first intimated that he was too thick with his wife and said, 'I want you to prove who that woman was.My wife can't explain satisfactorily where she was on that night.'Webb said he was up about Martinsville, and Harold said he didn't want to know about where he was, but exactly and who was with you.Webb said if he would give him 48 hours he would tell him.Harold said that he thought under the circumstances it was as little as he could do to tell him where he was and who the woman was to relieve his mind, and said he could tell him as well then as 48 hours later; that within 48 hours he could get someone to say ho was at their house and he said, 'I see no excuse for waiting 48 hours.'Still Webb didn't tell him and Harold lost his temper and abused him.* * * About that time somebody come in and I caught Harold by the arm and said, 'Let's go.' "

Testifying as a witness in his own behalf, accused denied any improper relations between Mrs. Vaden and himself.He did state, however, that he knew deceased was jealous of his wife, and that he had received information that deceased was going to kill him.

On the day of the homicide accused was standing upon the main street of the village of Gretna, talking to a friend named Ramsey, when deceased approached him with the remark, "I thought I told you to get out of town."Both accused and deceased were armed with pistols, and in the difficulty which followed Vaden was instantly killed by the accused.

When the case was called for trial, the accused moved the court for a change of venire, pursuant to section 4901 of the Code, and in support thereof filed three affidavits.The affidavits were to the effect that an impartial jury could not be obtained in Pittsylvania county.The court overruled the motion to grant a change of venire, and thereupon the accused moved for a change of venue, based upon the same affidavits, which motion was likewise overruled.This action of the court constitutes the first assignment of error.

The record discloses that two jurors, competent in all respects, were selected from the regular jury panel, and that from a second jury list, drawn according to the statute, the requisite number of competent jurors were obtained.

In Looney v. commonwealth, 115 Va. 921, 78 S. E. 625, this court held that the trial court, in the exercise of the powers conferred by the statute, section 4024(now section 4901), must of necessity have a great deal of discretion, and the Supreme Court will not reverse the judgment of the trial court, unless it plainly appears that such discretion hasbeen improperly exercised.The fact that an impartial jury was obtained in the county of Pittsylvania, out of a list of forty names, raises a conclusive presumption that the motions for a change of venire and a change of venue were unfounded.Muscoe v. Commonwealth, 87 Va. 460, 12 S. E. 790;Bowles v. Commonwealth, 103 Va. 816, 48 S. E. 527.There is no merit in the first assignment of error.

The second assignment of error is predicated upon the action of the trial court in admitting in evidence the testimony of Arthur Oakes, supra, and the other witnesses who testified in regard to seeing accused and Mrs. Vaden on the Martinsville road in August.It is also insisted in this connection that the court erred in admitting the conversation between accused and deceased, as testified to by Giles Vaden, supra.The contention of the accused is that the evidence was collateral to any issue in the case, was immaterial, irrelevant, and prejudicial; that it injected into the case a different crime than the one charged in the indictment, the effect of which was to create a prejudice against the accused in the minds of the jurors.

The general rule is that testimony tending to show the commission of an offense not charged in the indictment is inadmissible.Walker's Case, 1 Leigh (28 Va.) 574.But whenever it becomes necessary to show the...