135 Va. 468 | Va. | 1923
delivered the opinion of the court.
Mollie V. Belote and Peyton H. Killmon, the accused, were jointly indicted for the murder of Leonard W. Belote. This is a writ of error to a verdict and judgment convicting them of murder in the first degree and sentencing each of them to the penitentiary for twenty years.
The accused rely upon three assignments of error; and as the basis of their first assignment contend the corpus delicti has not been proven as required by law.
On Saturday night, January 7, 1922, shortly after ten o’clock, Leonard W. Belote, husband of Mollie Y. Belote, one of the accused, was found lying on the ground in his back yard, unconscious and nearly dead. Mrs. Belote was the first to find her husband and says she thought he had been paralyzed, until she reached him, when she decided he had been murdered. Elwood Lewis and C. C. Downing, two of the first to arrive after Mrs. Belote and Peyton H. Killmon found the deceased lying on the ground bleeding freely from a mortal wound on his head, his pockets turned wrong
It was physically impossible for the deceased to give himself the blow which he had received from a blunt instrument, or to shoot the- bullet into Ms head and then tMow the pistol into the well, eight feet away.
Upon the foregoing facts, which appear in' evidence, there can be no doubt that the death of Leonard W. Belote was the result of the criminal agency of another.
The second assignment is the action of the court in refusing to give the following instruction:
“The court instructs the jury that the absence of all evidence of an inducing cause or motive to commit the crime when the fact is in reasonable doubt as to who committed it affords a strong presumption of innocence.”
The court, as a rule, ought not to emphasize evidence tending to prove particular facts in the case (N. Y. P. & N. v. Thomas, 92 Va. 606, 609, 24 S. E. 264) nor to stress the lack of evidence as to a particular fact. Whether there was an absence of all evidence of an inducing cause or motive was a question for the jury. There was ample evidence of motive as to Mrs. Belote. Her life was jointly insured with that of her husband for $10,000.00, in the reliance Life Insurance Company, payable to the survivor. She, therefore, was pecuniarily interested in his death. Peyton H. Killmon also knew that his grand-mother, Mrs. Jane Belote, was expecting to get $4,000.00 from the deceased on the day of the homicide. The fact that the deceased’s pockets were turned wrong side out and some small change scattered on the ground shows the motive of the perpetrator of the crime was to secure money. The court did not err in refusing the instruction.
The third and last assignment is to the court’s refusal to set aside the verdict of the jury as without evidence to support it.
Viewed from the standpoint of the Commonwealth, the evidence upon material points warrants the following statement of facts, in addition to the facts stated in discussing the first assignment:
The home of Leonard W. Belote, the deceased, was located at Tasley station in Accomae county, fifty feet
On January 7, 1922, at 1:26 p. m., Peyton H. Killmon, the accused, arrived at Tasley from his home at Parksley. At six o’clock he was at the Belote home enquiring for the deceased. A little later he saw Hamp Lewis and asked him if he had seen uncle Leonard, meaning the deceased. At 9:30 p. m. Killmon was seen coming hurriedly across the railroad, from the west side thereof, to the depot, where he met his wife who arrived on the train reaching Tasley at 9:31 that night. The point at which Killmon crossed the railroad is less than 100 feet from the Belote home. At ten o’clock John S. Wise, who was in the employ of the railroad company as water pumper and watcher of engines, left for his home and on the way passed the home of the deceased. As he approached the home of the latter, the house was dark and just as he passed the lights were flashed on and he saw Peyton H. Killmon come out of the house on the porch, accompanied by the accused, Mrs. Mollie V. Belote. The front door was slightly ajar and Mrs. Belote stood just inside the door and Killmon just outside and the two appeared to be engaged in a whispered conversation. The accused, Mrs. Belote, admits the lights had been turned off by her, as she says, to rest her eyes, but denies that the accused, Killmon, talked with her at the door.
Shortly after ten o’clock the same night, which was the night of the homicide, both James C. Scott and his wife heard the voice of a woman, which sounded like the voice of Mrs. Belote, the accused, speaking loudly,
Elwood Lewis, who lived about seventy yards from the residence of the deceased, on hearing the outcries made by Mrs. Belote, ran to her house and found the deceased lying on the ground and both of the accused, present, standing near him. After Leonard W. Belote was taken into the house, Mrs. Belote, the accused, said in the presence of Fosque Watson and others, “Leonard came to his death by having money on him. He had between $4,000.00 and $4,050.00 on him which was paid to him by Martin Hall to be paid to my mother, Mrs. Jane Belote.” About the same time she made this statement, Mrs. Belote, one of the accused, said: “I struck at him twice and missed him.”
Near where the deceased was lying was found an empty box, on which was the cost mark of Doman-Smythe Hardware Company, Salisbury, Maryland, in which had been a pistol, and nearby a circular with directions for using the pistol, but no pistol was seen anywhere near the box. The bottom of the well near the place where the deceased was found was dragged several times on Sunday and Monday following the homicide, but nothing was found. On Tuesday a well digger used his scoop in the well and brought up a pistol which was put in evidence at the trial. When the pistol was shown to the accused, Killmon, he was asked whether that was the pistol found in the well and said: “I can tell by the number,” and he looked at it and -said, “that is the pistol.” He also said, when
When the pistol was shown to Mrs. Belote, the accused, she remarked that if she didn’t “get out of this” it would kill her.
The accused, Killmon, met John S. Wise, a Commonwealth’s witness, about two weeks after the homicide and told him he understood Wise had made a statement, tending to implicate him in the murder, which was a lie, and added, “you are half dead now and if you fool with me I will send you in the house on a stretcher.”
The accused, Mollie V. Belote, testified that her husband, the deceased, left the house about seven o’clock p. m. with the coal scuttle and said he was going to get a scuttle of coal, and as soon as he got it they would go over to her mother’s; that he did not return and she sat in the house and read until about nine o’clock and then turned the lights off to rest her eyes, and that about fifteen minutes or more after the 9:30 train passed she turned the lights, on and went out to get the coal and found her husband lying on the ground near the coal house, with-the coal scuttle near his feet filled with coal. When she put her hand on his forehead, she said, “Oh, Leonard, is that you?” and began to scream, and that Peyton H. Killmon rushed up and said, “where is he, where is he?” And- she said, “someone has killed your uncle Leonard.” She denied that she said to Mrs. Ruth Wise, the next day, that if she did not “get out of this” it would kill her, and did not remember saying “I struck at him twice and missed him.” She further testified that she did not hear a pistol shot that night.
The accused, Peyton H. Killmon, testifying as a witness for the defense, undertook to account for his movements after his arrival at Tasley until he met his wife
If the statement attributed to Mrs. Belote, the accused, that she “struck at him twice but missed him,” and her order to “go” be true, she must have had a partner in the crime; and the presence of Kilim on at the home of the deceased, in conference with Mrs. Belote, just before and at the body of the deceased just after the outcry was given points to him as the man.
While there are sharp conflicts in the evidence, we And nothing in it to support the defendants’ theory of suicide or that points to any person other than the accused, as the perpetrator of the crime.
The jury saw and heard the witnesses testify and their finding on the facts is conclusive with us. The verdict was supported by the evidence and approved by the trial judge, who also saw the demeanor of the witnesses, on the stand; and the judgment must be affirmed.
Affirmed.