Wilkins v. Commonwealth, Record No. 2309.

• Decision Date: 25 November 1940
• Docket Number: Record No. 2309.
• Citation: 176 Va. 580
• Court: Virginia Supreme Court
• Parties: JAMES WILKINS v. COMMONWEALTH.

Page 580

176 Va. 580

JAMES WILKINS v. COMMONWEALTH.

Record No. 2309.

Supreme Court of Virginia, Richmond.

November 25, 1940.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. HOMICIDE — Murder — Killing in Hot Blood Growing out of Combat. — A homicide committed in hot blood, growing solely out of a combat for which a defendant was not responsible, is not murder.

2. HOMICIDE — Manslaughter — Test of Whether Killing Is from Sudden Heat of Passion. — Where a homicide is committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation, without any previous grudge, even if the killing be not done in self-defense, the test of whether the killing is from the sudden heat of passion is found in the nature and degree of the provocation and the manner in which it is resented.

3. HOMICIDE — Defenses — Pleas of Self-Defense and of Passion Not in Conflict. — The pleas of self-defense and of passion, engendered by an unprovoked assault, are not in conflict with each other.

4. HOMICIDE — Malice — Circumstances of Extenuation Rebutting Presumption of Malice. — Where a homicide was committed in the course of a sudden quarrel, in mutual combat, upon a sudden provocation, which was unquestionably resented, and the provocation was more than "very slight," and there was no previous grudge, it was accompanied with such circumstances of extentuation that malice could not be presumed from the mere fact of killing.

5. HOMICIDE — Murder — Killing in Hot Blood Growing out of Quarrel for Which Accused Not Responsible — Case at Bar. — In the instant case, a prosecution for homicide, accused and the person whom he shot were strangers to each other. Accused stood by a restaurant counter talking to a young woman when deceased came into the room and said "You are the one that has been talking about me," and then knocked accused across the room. Deceased hit accused again and knocked him down and while on the floor accused drew his pistol and got up. Deceased dared accused to shoot him, and accused asked deceased to go away. Instead of doing this deceased threatened to kill accused and again knocked him down. Accused got up and shot deceased. Accused was convicted of murder in the second degree.

Held: Error.

Error to a judgment of the Circuit Court of Sussex county. Hon. Robert W. Arnold, judge presiding.

The opinion states the cse.

Thomas H. Howerton, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Walter E. Rogers, Special Assistant, for the Commonwealth.

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

In Waverly in a negro restaurant on the 3rd of December, 1939, at about eleven o'clock at night, James Wilkins shot and killed Willie Moyler. For that he has been tried, convicted of murder in the second degree, and sentenced to confinement in the State penitentiary for fifteen years.

Wilkins stood by the restaurant counter talking to a young woman. Moyler came into the room, saw Wilkins, and said: "You are the one that has been talking about me." And then, without more, he knocked him across the room. He hit him again and knocked him down; while on the floor Wilkins drew his pistol and got up. Moyler dared Wilkins to shoot him, and Wilkins asked Moyler to go away. Instead of doing this he threatened to kill him and again knocked him down. Wilkins got up and shot him. All of this took place within the time taken in its telling. Wilkins left the restaurant room, threw his pistol away, went to his home and was there soon afterwards arrested.

These men were strangers to each other. Wilkins knew Moyler by sight but had never spoken to him and did not know what he was talking about. There is nothing to indicate a previous grudge. There could have been no premeditation, and there was little time for meditation. The difficulty was brought on by Moyler, and certainly in its inception Wilkins was without fault.

A homicide committed in hot blood, growing solely out of the combat for which a defendant was not responsible, is not murder.

In Richardson Commonwealth, 128 Va. 691, 104 S.E. 788, this instruction was given:

"6. The court instructs the jury that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie wilful, deliberate and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances."

These are the facts upon which it was predicated:

Richardson had attended a county fair and took with him as his guests three young ladies. Upon their return in an automobile, driven for hire, the driver took up another passenger, who was somewhat intoxicated and who conducted himself in a free and easy manner towards these young...