Wooden v. Commonwealth

• Decision Date: 09 September 1915
• Citation: 117 Va. 930,86 S.E. 305
• Parties: WOODEN. v. COMMONWEALTH.
• Court: Virginia Supreme Court

86 S.E. 305

117 Va. 930

WOODEN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Appeal from Corporation Court of Buena Vista.

Percy Wooden was convicted of assault with an intent, and he appeals. Reversed and remanded.

Hugh A. White, of Lexington, for appellant.

Jno. Garland Pollard, Atty. Gen., and C. B. Garnett, Asst. Atty. Gen., for the Commonwealth.

CARDWELL. J. Percy Wooden, about 16 years of age, was indicted for maliciously, feloniously, and unlawfully making an assault with a dangerous weapon, to wit, a stone or rock, upon one Wallace Mowyer, with intent to maim, disable, and kill the said Wallace Mowyer, and upon his trial was found guilty as charged in the indictment and sentenced to pay a fine of $10 and be confined in jail for 60 days. He thereupon applied for and obtained this writ of error from one of the judges of this court.

The only assignment of error is to the ruling of the trial court refusing to set aside the verdict of the jury upon the ground that the evidence is insufficient to support it, and there are but two questions raised by the record for consideration by this court: First, whether the evidence was sufficient to prove that the offense charged against the accused was committed within the jurisdiction of the corporation court of the city of Buena Vista; and, second, whether the evidence was sufficient to convict him of the offense charged.

In the view that this court takes of the case, it is only necessary to consider the second of the questions stated.

It appears that on Saturday night, April 25, 1915, five boys, viz., Wallace Mowyer the prosecutor, Howard Wooden, Percy Wooden, the accused, Earle Bryant, and Harry Campbell, met on the street in front of a picture show. They all started up the street, Mowyer and Bryant being in front of the Wooden boys, and in their progress up the street it seems that Howard Wooden either called Mowyer "Arch Wilson, " or in talking to himself said, "My name is Wilson; I am a brother of Arch Wilson, or Tyree, " the significance of which is not shown, and both Bryant and Campbell testify that Howard Wooden did not call Mowyer "Arch Wilson"; but Mowyer seems to have been incensed by what had been said, and he and Campbell turned off to go behind Bias' shop, when Mowyer said to Campbell, "If Howard starts anything, I will end it with a rock in my pocket." The Wooden boys had gone on up the street, when Mowyer went into Bryant's house to get, as he says, a drink of water, hut his real purpose being to let the Wooden boys get ahead so that he might get away from them. There had been no threats or ill feeling between the Woodens and Mowyer, except the threat of the latter to "end the matter with a rock." On the contrary, the boys theretofore had been friendly and often played together. Mowyer, after tarrying in the Bryant house about five minutes, went on up the street, and when he got to the residence of a Mrs. Hall the Wooden boys were sitting on the side of the street on some rocks opposite Mrs. Hall's house. He says that Howard Wooden there again called him "Arch Wilson, " and that on this account he hit Howard Wooden on the head with arock. The Mrs. Hall spoken of, testifying for the commonwealth, stated that she heard the boys in front of her house talking, and thought they were fighting; that she heard Howard Wooden tell Mowyer that he had hit him with a rock, and he was going to have him arrested, to which Mowyer replied, "I reckon you will." She also states that she saw Percy Wooden, the accused, stoop down like he was going to pick something up. but did not know whether or not it was his hat; that the boys left the front of her house and went on up the street a block and a half away, and she then heard one of them say, "I have got you, " but she does not know who said this. Further, she says that she heard Howard Wooden say to his brother Percy, "Hurry up, Percy; he might get away: " but on cross-examination she modified this statement by saying in effect that she only heard him say to Percy, "Hurry up, " and just what was meant by that she did not seem to know. The boys, it seems, went up the street, Percy Wooden beside Mowyer, and Howard Wooden "sorter" beside him, until they got to an electric light, where Mowyer told Howard Wooden to let him alone, and about the time they got under the electric light Mowyer was hit by a missile, supposedly a rock, knocked senseless, and remained unconscious for more than two days, when he regained a measure of consciousness, and after a week, not having entirely recovered consciousness, was taken to a hospital at Staunton. There is no direct evidence whatever indicating that Percy Wooden, the accused, threw the rock which inflicted the injury upon Mowyer. In fact, it is conceded by the learned Attorney General that the evidence does not show conclusively that he did throw the rock, and it is only contended that the evidence is sufficient to show that the accused was a participant in the...