Opinion
36999
September 19, 1935
Present, All the Justices.
1. HOMICIDE — Killing in Self-Defense Where Accused Provoked Difficulty — Forcing Entrance to Regain Child Taken from Father by Force — Case at Bar. — In the instant case, a prosecution for murder, accused's daughter-in-law and her father were killed at the latter's home when accused and his son forced open the door of a room in which were the son's wife and two children and her father. Several days before the homicide one child had been taken from her father, accused's son, by force in the home of the wife's parents, and accused and his son testified that they forced the door only to regain possession of the child and fired only after they had been fired upon by the wife's father.
Held: That the fact that the child was taken from her father by force did not justify him, or accused, in forcing an entrance into the room to regain possession of her.
2. PARENT AND CHILD — Right to Custody of Child as between Father and Mother — Father Not Entitled to Regain Possession of Child from Mother by Force. — A father's right to the possession of his child, as against the right in the mother, is a qualified right to be decided by the court in a proper proceeding, and this qualified right does not entitle the father to regain the custody of his child vi et armis, so long as the child is in the possession of the mother, and is in no serious danger.
3. HOMICIDE — Instructions — Killing in Self-Defense after Making Forcible Entry — Instruction Failing to Distinguish between Entry Constituting Felony and One Constituting Misdemeanor — Case at Bar. — In the instant case, a prosecution for murder, accused's daughter-in-law and her father were killed after accused and his son forced open the door of a room in the house of the wife's father. In the room were the son's wife and two children and her father, and accused and his son testified that they forced the door only to regain possession of one of the children which had been taken from her father by force several days previously. They testified that they did not fire until the wife's father fired upon them, while a witness for the Commonwealth testified that accused's son rushed into the room shooting as soon as he broke open the door. Accused objected to an instruction telling the jury only that neither accused nor his son had the right to break into the room to secure possession of the child.
Held: That the instruction did not go far enough. If the breaking and entering was done as claimed by the Commonwealth, it was a felony but if done as stated by accused, it was a misdemeanor, and if this was the act which provoked the deadly assault on accused and which in resisting, he or his son killed another, both were guilty of manslaughter. The instruction should have been so drawn as to make this distinction clear to the jury.
4. CRIMINAL LAW — Arguments and Conduct of Counsel — Commonwealth Does Not Rely on Prejudice or Sympathy. — The criminal laws must be enforced dispassionately and with an even hand. The Commonwealth does not rely either upon prejudice or sympathy to attain this end.
Error to a judgment of the Circuit Court of Wythe county.
Reversed and remanded.
The opinion states the case.
S. B. Campbell, Wilson, Burns Wilson and T. F. Walker, for the plaintiff in error.
Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.
Henry Bausell was indicted jointly with his son Bernace Bausell for the killing of T. E. Cornett. He elected to be tried separately, was found guilty of murder in the first degree, and his punishment fixed at confinement in the penitentiary for twenty years.
The evidence in this case is practically the same as the evidence introduced in the case of Bernace Bausell v. Commonwealth, ante, page 669, 181 S.E. 453, decided at this term of court. The instructions were identical except for the change in name. The jury in the present case was summoned from Carroll county, and the record contains no exception to the panel. What is said in the Bernace Bausell case, on the admissibility of certain evidence, and the fundamental error found in many of the instructions, is applicable in this case, and compel a reversal.
In both cases the defendants strenuously objected to the giving of Instruction No. 12, reading thus: "The court instructs the jury that the defendant, Henry Bausell, and his son, Bernace Bausell, or either of them, did not have the right to break into the bedroom of Virginia Bausell to secure possession of Jean Bausell."
As pointed out in the other opinion, it was conceded that the bedroom door was forcibly opened. The Commonwealth's evidence tended to show that it was broken open by the combined efforts of the two defendants. Testimony of the accused tends to establish that it was forced open by Bernace Bausell alone. Up to the time of the breaking open of this door, no force, or hostile act had been committed by the accused, or either of them. When all the evidence is considered, we think the instruction is correct as far as it goes.
[1, 2] It is conceded that several days before the homicide Jean was taken from Bernace Bausell, her father, by force. The fact did not justify him, or Henry Bausell, in forcing an entrance into a bedroom in the Cornett home, to regain possession of her. The father's right to the possession of his three-year-old daughter, as against the right of the mother, is a qualified right to be decided by the court in a proper proceeding. This qualified right does not entitle the father to regain the custody of his child vi et armis, so long as the child is in the possession of the mother, and is in no serious danger.
The instruction, however, does not go far enough. If the breaking and entering was done in the manner stated by Mrs. Clarke, it was a felony. If, however, the breaking and entering was done, as stated by the accused, with no other intent than to see his family, it was a misdemeanor, and if the jury believed that this was the act which provoked the deadly assault upon the accused, and which in resisting, he, or his son, killed another, both were guilty of manslaughter. The instruction should have been so drawn as to make this distinction clear to the jury.
The only other assignment of error not within the purview of the opinion in the case of Bernace Bausell v. Commonwealth, is the exception taken to certain statements before the jury in the arguments of the Commonwealth's attorney and the attorneys privately employed to assist the prosecution. While the remarks to which exceptions were taken are close to the border line, it is not probable that they will be repeated before another jury; hence we deem it useless to discuss them in detail. The question of improper argument has been before the court on numerous occasions. We have invariably held that the criminal laws must be enforced dispassionately, and with an even hand. The Commonwealth does not rely either upon prejudice or sympathy to attain this end. The question is fully discussed in the Virginia cases, among which are: Steel v. Commonwealth, 157 Va. 810, 160 S.E. 185; Dingus v. Commonwealth, 153 Va. 846, 149 S.E. 414; Parsons v. Commonwealth, 138 Va. 764, 121 S.E. 68; Mohler v. Commonwealth, 132 Va. 713, 111 S.E. 454.
For the reason stated, the verdict of the jury is set aside, the judgment reversed, and the case remanded for a new trial.
Reversed and remanded.
Campbell, C.J., and Holt and Eggleston, JJ., dissenting.