165 Va. 816 | Va. | 1936
delivered the opinion of the court.
On the afternoon of October 13, 1934, Paul Harper shot and killed Richard Campbell. He was indicted for murder and in due course tried. A jury found him guilty of voluntary manslaughter and fixed his punishment at five years in the penitentiary. This verdict the court confirmed. We are asked to set it aside as contrary to and as unsupported by evidence. Under familiar rules we look primarily to that tendered on behalf of the Commonwealth.
Harper and Campbell were friends and neighbors, who lived on Otey street in the city of Lynchburg. Mrs. Harper came to the Campbell home at about four-thirty in the afternoon, crying and apparently frightened. She said that her children told her that their father had a pistol and was threatening to kill her. She asked for Campbell and was informed that he was not there, but at her request Campbell’s daughter went for him to some
“He got out a revolver and shot as he was getting up. By that time Campbell had run back into the house and Paul fired three more times at his open door. When Harper was shooting in the house Campbell was inside the
Harper did succeed in reloading his pistol and held it upon Campbell as he hacked across the street. Campbell followed and again knocked him down, and it was then that he fired the fatal shot. Harper was taken or went to a hospital. A policeman who visited him there said that he was badly beaten up.
Assuming as we must assume that Harper had made threats against his wife, although he denies it, there was nothing hostile in his demeanor when he came to the Campbell home, into which he was cordially invited. The record shows that he was a peaceful man of good reputation. While Campbell, in the language of his wife, “was a good man until he got drunk.” She also tells us that Harper had no reason to believe that he was going to be assaulted until he was actually struck.
The court told the jury that self-defense could not avail unless the party pleading it was without fault in bringing on the difficulty. We had occasion to consider this subject in the case of Smith v. Commonwealth, decided November 14, 1935, ante, page 776, 182 S. E. 124. That general rule is subject to this exception. One may provoke a conflict and afterwards in good faith announce his desire for peace, and undertake to withdraw; if he be pursued the right of self-defense may then be relied upon. See also, Dodson v. Commonwealth, 159 Va. 976, 167 S. E. 260; Vaiden v. Commonwealth, 12 Gratt. (53 Va.) 717; Wharton’s Criminal Law, volume 1, section 614 (11th Ed.).
Assuming but not conceding that Harper went to the Campbell home on trouble bent, it is plain that after
Instructions also deal with the subject of mutual combat. There 'was no such combat here. To be mutual it must have been voluntarily and mutually entered into. If this were not so, every fight would be a mutual combat, without regard to the manner in which it began. Mutual combat would be its synonym and have no special meaning. One who is assaulted may and usually does defend himself, but the ensuing struggle cannot be accurately described as a mutual combat.
Because of these errors in the instructions and because the testimony discloses that the killing was done in self-defense, we are of opinion that this case should he reversed, and it is so ordered. The prosecution should be dismissed unless some new evidence is uncovered.
Reversed.