{).Dfo\JA Lfh¥ v

Record No. 6130 IN THE

Supreme Court of Appeals of Virginia AT RICHMOND

versus

COMMONvVEALTH OF VIRGINIA, Defendant in Error.

PETITION FOR WRIT OF ERROR AND SUPERSEDEAS.

ROBERT D. POWEHS, JR. 210 Law Building Portsmouth, Virginia

DONALD G. WISE New Kirn Building Portsmouth, Virginia

Counsel for Plaintiff in Error.

INDEX TO PETITION

Record No. 6130.

Page Petition for Writ of Error ......................... o 1 * Statement of Proceeding in the Trial Court .......... 2•-3• Assignments of Error ................... o o o. o...... .. 4"" Questions Involved in the Appeal .................. 5*-6'* The Material Facts ............................... 7• -11• Argument:

Assignment of Error No. 1 .................... 12•-13• Assig-nment of Error No. 2 ......... 0 •••••••••• 13•-144

Assignment of Error No. 3 ...................... 14•-15• Assignment of Error No.4 .................... 15*-191(< Assignment of Error No. 5 ..................... 19* -20* Assignment of Error No. 6 .................... 20* -21* Assignment of Error No.7 ..................... 21 *-22""

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23:llo Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24*

Index of Oases.

Byrd v. Omn1nonwealtlz., 89 Va. 536 ................... 20.., Oa.1npbell v. Commonwealth, 194 Va. 825 . . . . . . . . . . . . . . 1 T• Cochran v. Oom1nonwealth, 122 Va. 801 .............. 16• Collins v. Com;mo'I1!Wealth, 123 Va. 815 ................ 14• Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S.

Ct. 1758, 32 (Law Week 4605 .................... 15~ Gra.ham v. Oomn~orvwealth, 140 Va. 452 .............. 13* Henry v. Commowu).ealth, 195 Va. 281 ................. 20'* Honesty v. Commonwealth, 81 Va. 283 ................ 21"" 1 rby v. State, 95 Ga. 467, 20 S. E. 218 . . . . . . . . . . . . . . . . . 12~ .Johnson v. Co'1n1nonwealth, 188 Va. 848 .............. 20"' JJfcCus v. Contmomvealth, 103 Va. 870 ................ 21 ill Moore v. Commonwealth, 137 Va. 741 ................ 14• Ornohtwndro v. Commo11wealth, 138 Va. 854 ............ 13-» Opan,owich v. Cont'lnonwealth, l96b Va. 342 ............ 16• People v. Fox, 20 N. Y. S. R. 316, 3 N. Y. Supp. 359, 24

N. E. 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12s. Plym.ale v. Comntonwealth, 195 Va. 582 ................ lR"" R. V. Viau, Rap. J1td. Q'l.t.ebec, 7 B. R. 362 . . . . . . . . . . . . 12* R11<fer v. Sta.te, 25 Ohio 464 . . . . . . . . . . . . . . . . . . . . . . . . . . 12""

Page . State v. B erberick, 38 Mont. 423, 100 Pac. 209 . . . . . . . . 13"'

Upslvur v. Commonwealth, 170 Va. 649 .... · ............ 13* United States v. Carignan, 343 U.S. 36, 96 L. Ed. 48, 72

S. Ct. 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12* 23 'C. J. S. Sec. 916 ( 5) page 636 .. . .. . . . . . . . . . . . . .. . 18', Lee's Criminal Trials in the Virginias, Sec. 141, p. 87 .. 18 LRA (N.S.) 778 ................................. 129

50 LRA (N.S.) 1077 ........................ ; ........ 13• Lee's Criminal Trials in the Virginias, Sec. 141, p. 87 . . 13• Page, the Law of Evidence, Sec. 194, p. 315 . . . . . . . . . . 15"' 8t. Clair v. Commonwealth, 174 Va. 480 .............. 18"

IN THE

Supreme Court of Appeals of Virginia AT RICHMOND

Record No. 6130

LINWOOD REID, Appellant,

versus

COMMONWEALTH OF VIRGINIA, Appellee.

PETITION FOR APPEAL AND WRIT OF ERROR.

To the Honorable Justices of the Supreme Court of Appeals of Virginia:

Your petitioner, Linwood Reid, respectfully represents that he is aggrieved by a final judgment entered against him in the Court of Hustings for the City of Portsmouth, Vir­ginia, on the 17th day of December, 1964, in an action at law in whic.h your petitioner was the defendant and the Common­wealth of Virginia was the plaintiff.

The parties 'vill be referred to according to their respectiv~ positions in the trial court. Reference to testimony and facts contained in the transcript of testimony are made to pages of the transcript of the testimony, called "record'' in the brief.

This netition and the record will be filed with tT ustice Law­rP.nce W. !'Anson, Professional Building, Portsmouth, Vir­p:inia.

2 Supreme Court of Appeals of Virg·inia

A copy of this petition for appeal and writ of error was delivered to J. Alden Oast, Commonwealth's Attorney for the City of Portsmouth on the lOth day of March, 1965.

2* •sTATE~iENT OF PROCEEDING IN THE TRIAL COURT.

The defendant was indicted by the Grand Jurors of the City of Portsn1outb of the November, 1964 term. The .indict­ment read as follows :

''Commonwealth of Virginia, ''City of Portsmouth, to-wit:

''In the Court of Jfustings for the City of Portsmouth:

"The Grand Jurors of the Commonwealth of Virginia, in and for the body of the City of Portsmouth, and now attend­ing the said Court, at its November, 1964 term, do upon their oaths present that Linwood Reid on the 5th day of Septem­ber, in the year 1964, in the said City of Portsmouth felon­ious} eli · and rnurder one Sophie Har~"-against tlw peace and dignity o e CommonweaUnorVIrginia."

The defendant was tried on December 16 and 17, 1964. On December 16, 1964, the court and jury heard the evidence of the Commonwealth. After the Commonwealth had established that there was a. fire at the house inhabited by the deceased and the defendant, as a result of which the deceased, Sophie Harding, died, the_ Comn1onwealth off~re.d __ evicJ~nce of a.n al­leged confession l1y tb·e ·accused. The defendant objected and requested an QUL.o.CCC:uir_t. h-eaiing: At sucb.__he_a_dni,-niC·ae­fencJ~ed_ to evidence of ~__g_gnfe.s_sio.n__o.n_the ground that -tlleQQmiiion,veallhilaallot established the CQI.l!J!!.s.~ti, nor'had -it in-aily way .~ODTI._~etruf:.tlia_((ef~naanf with the fire as, a result of which the deceased died. The Court overruled the d.efelldanf'S!i10tion--to wb1Chacfion ex~ken. (Record pp. 40, 41} T?ere~po~_ still _ _!!!__ cl~d .ses~_i9~he Court Pl'9~~~·n• tlie C9man..we~Jt1i 's ev1..d~s to the voluntary_nat:tu~Lof1li_e_Go_nfe.ssion. Upon the terrn~ation tl1ereof. the defendant requested permission to testify solely as t~I'e-60lle Q_9nfession (Record p. 54),

and the Courr refused to allow=rsuc.li__t_e._stimony, and 3* ru@~_Q_Q_rifes_sion aqmissible. to wh~ rulings !]!e de-­

fendant excepted (Record --p: 56).--The Thmmonwealth thPn proceeclecr wff11fhe presentation of evidence to the jury,

Linwood Reid v. Commonwealth of Virginia 3

and upon the termination thereof, the defendant, by counsel, moved the Court to ·strike the evidence of the Commonwealth and for a directed verdict of acquittal, which motion the Court overruled the n1otion, to which action the defendant excepted. The defense then presented its testimony, and upon the termination thereof, and of evidence presented by the Commonwealth in rebuttal, the Court heard argument on the instructions. The Commonwealth's instructions 1 and 2 were objected to by defense counsel as being incorrect under the facts of this case. The ~Court overruled these objections, to which action the defendant excepted. The Court, upon objec­tion by the Conm1onwealth, refused to grant defendant's in­structions A, D, J and 1\f, to which action the defendant ex­~epted on the ground that said instructions were proper under the evidence and important to his theory of the case.

Finally on Decen1ber 17, 1964, after the jury gave its ver­dict finding the defendant guilty of murder in the second degree and fixing his punishment as confine1nent for twenty years in the penitentiary, the defendant, by counsel, moved the Court to set aside the verdict as being contrary to the law and the evidence, which motion the Court overruled, to which action the defendant excepted, and the defendant was Rentenced to twenty years in the penitentiary, and the pris­oner was remanded to jail.

4* * ASSIGN1\1ENTS OF ERROR.

1. Tha.t the court erred in refusing to permit the defendant in closed session to take the stand on the limited question of the voluntary nature of the confession and testify on voir dire as to ·whether or not the confession offered by the Com­monwealth was voluntary, thus depriving him of his con­~titutional right to pre-sent evidence that the confession was not voluntary, and erred in admitting the confession in evi­dence after refusing his testimony.

2. That the court erred in admitting the confession in evi­dence prior to independent proof of the corpus delicti, or of any evidence connecting the defendant with the crime alleged against him.

3. That the court erred in admitting the confession because the evidence does not establish that it was voluntarily given.

4. That the court erred in failing to sustain the motion of the defendant to strike the evidence for the Commonwealth and dismiss the case against the defendant, at the conclusion of the Commonwealth's evidence on the ground that there

4 Supreme Court of Appeals of Virginia

was insufficient evidence to establish the guilt of the defend­ant.

5. That the court erred in granting- instructions numbered 1 and 2 offered by the Commonwealth.

6. That tht ~urt erred in refusing to grant instructions .A, D, J, and~ offered by the defendant. (Assignment as to instruction M is not pursued)

7. That the court erred in refusing to set aside the verdict and grant the defendant a new trial on the ground that the verdict was contrary to the law and the evidence.

5" *QUESTIONS INVOLVED IN THE APPEAL.

The questions involved in the appeal are questions of law and fact. The transcript of the testimony contains all facts in the case.

The first question involved in the appeal i·s whether the defendant in a criminal case has a right to testify and pro­duce evidence in an out of court hearing on the limited ques­tion of the voluntariness and admissibility of a confession, and whether it was error for the trial court to refuse to allow ~uch testimony before ruling on the admissibility of the con­fession, and admitting it into evidence.

The second question is whether the Commonwealth proved the corp1ts delicti beyond a reasonable doubt, and connected the defendant with the alleged crime before the confession 'vas admitted in evidence.

The third question involved is whether the Commonwealth established that the confession was voluntarily given.

The fourth question is whether there was prejudicial error in failing to ·sustain the motion of the defendant to strike the evidence and direct a verdict for the defendant at the close of the evidence introduced by the Commonwealth.

The fifth question is whether it was prejudicial error to grant Commonwealth's Instructions 1 and 2, that is whether the instructions given were proper statements of law as given, and whether they were warranted by the facts in this case.

The sixth question is whether it was prejudicial error to refuse to give defendant's Instructions A, D, J, that is, were these instructions proper statements of law, and proper to the defendant's view of the facts in this case.

T·he seventh question is whether tbere was prejudicial er­ror in the refusal of the court to set aside the verdict and ~ant the defendant a new trial on the !!round that the ver­dict was eontrary to the ]aw and the evidence. This question

Linwood Reid v. Commonwealth of Virginia 5

involves consideration of the preceding· questions, and a question of fact and law as to whether the corpus delicti

was established beyond a reasonable doubt, and whether 6• •or not the verdict was based solely on the confession

of the accused erroneously admitted.

*THE MATERIAL FACTS.

The Commonwealth,

v.

Linwood Reid.

Trial was held on December 16 and 17, 1964, in the Court of Hustings for the City of Portsmouth, Virginia.

The ~Commonwealth established by the testimony of Dr. Ansel Lipman that Sophie Harding died on September 15, 1964, of toxemia and renal failure resulting from extreme third degree burns received on September 5, 1964. This is not in dispute.

Officer D. N. Zirkle, of the Portsmouth Police testified (Record, pp. 19-21) that he went to 1361 Watson Street, Portsmouth, Virginia, and assisted in carrying Sophie Harding, who had been burned to the hospital. This is un­disputed.

'Captain K. L. Host, Portsmouth Fire Department testi­fied (Record pp. 21-24) that he went to address above on September 5, 1964, and found the bedroom ablaze and a fire in the back door of the house. He said the bed was on fire, that they extinguished the fire.

Hilary M. Parker, Portsmouth Fire Department testified that (Record pp. 25-30) he went to the house mentioned on September 7, 1964, and found that the bed was burned and the burned mattress had been removed to the back yard. He testified he couldn't see any normal cause for a fire such -as electric deficiencies, but could not tell what ignited. H~s..~i~ the fi~rted in tbe bed ..

W. R~ Weatherington, Deputy State Fire Marshall, testi­fied that (Record pp. 30-35) h~ investigated the :fire_a...t_j;}le h~use on SeEt~!!!h~x-9.,.-1961,._ an~tJQlilffi __ avid_e_nce _oLburning iii the bedroom and in different ·areas of the house. He said ~e fQ_und~ i!.9 accidenfafmeans--of tire-. 1-le -said the-mattress was burned ana-tllere-\vas-heavy-C.harring of the floor along-

side the bed. s• *Lieutenant Robert E. Joyner, Police Department,

Portsmouth, testified that he picked up the defendant

6 Supreme Court of .Appeals of Virginia

on September 14, 1964, and that the defendant gave a state­ment.

At this point, defendant objected and asked for a closed hearing. In the closed hearing, defendant (Record p. 37) objected to testimony concerning the statement on the ground that no evidence had been introduced to connect thl3 defendant with the alleged crime, and that the corpus delicti had not been established. The Court stated that it considered the corpus delicti established. Thereupon the Court received evidence (Record p. 42) from Lieutenant Joyner that a statement was voluntarily made by the defendant. On cross examination he testified (Record p. 44) that Detective Therault was with him and that the doors to the room in which the statement was taken from the accused were closed. He testified (Record p. 45) that he did not inform the defendant that he was accused of a crime, but asked him what he knew about the burning of Sophie Harding. He said the defendant first denied he had anything to do with Sophie Ifarding's death, and said that it was accidental as far as he knew (Record p. 46). The defendant was questione_d_Jor t'!Q__}l_~ he wrote __ _Q!!fWhatme ®f~;g.Q._ant said ·and had it typed, ana-tne-··aefeil!l""iin[][~iJ~:p.tly _sign.~g it,_ af~er rea~

Thereupon the defendant (Record p. 54) requested per­mission to testify on voir dire on the admissibility of the confession.

The Court refused to permit the defendant to testify and ruled the confession as voluntary and admissible, to which actions the defendant objected and excepted (Record p. 55).

Thereupon Lieutenant Joyner testified before the jury as to the taking of the statement, and read the statement of the accused (Record pp. 57-61), which was offered and received in evidence. The statement contains a confession th~,-~ft~r'_a... fight~-;Vith _S_Qp]lj~_Jla£ding--in whic.h kerosene '\Vll:S spilled, ''struck a mat~_ anc!__ll_er_ __ dr_es,s ~re~" (Record p. 59). The-statement also -~-aid_he

9* ~rew-l11e maW!~_O_lL.the bed ana-alsosliows-that the defendant_was. also burned,-tliat hecarr1ea-·8ophie

Hardin.g- f:r_om the hou~e,- f!uFout ~tlje- fire on her clotnes, r~n dow~street and came back - - -------~----~--

J aines~~[ Campose11o-;-t>ortsmouth Police Department, testified (Record pp. 74-78) that he arrived at the house about 5 :30 a.m. and that the defendant was not there. H~ went in t.he house and saw the bed was burned a little (R.ec­ord p. 76) and the mattress was charred a little bit. He tes­tified (Record p. 77) that the defendant made a statement.

Linwood Reid v. Com1nonwealth of Virginia 7

to him on September 10, 1964, that the defendant came homo from a dance, found Sophie Harding burning and put a blanket on her and left when the police arrived.

The Commonwealth rested its case, and the defendant moved for a directed verdict of acquittal on the gTound that the corp~ts delicti had not been established (Record p. 79), which motion the Court overruled, stating (Record p. 82) in effect that no corroborating evidence is required and that a eonfession is suffi-cient evidence to sho'v a erime was com­mitted. The defendant excepted (Record p. 86).

Thereupon, the defendant testified that he and~hie H:gding lived Together auatliaftlie night before the trageity,---tl:wy visited several friends and drank together, and they were on good terms (Record pp. 89-90). He left Sophie Harding at home and 'vent to a dance where he drank with friends until about 5 :00 a.m., September 5, 1964. Wben he returned home, he saw Sophie I-Iarding in the bedroom. She had been burnt, and her clothes were burnt off. He ran do\vn the street hollering for help and got two cabs and a. police car (Record p. 92). On his return Sophie Harding asked him to go in the house and get her money, but he couldn't fmd it. He left later and went to his sisters house ·four blocks away (Record p. 93). He returned to work Mon­day where he had been working. He told the detectives h·) was staying at his sister's house (R.ecord p. 94). Later he

\ went to police headquarters and talked to a detective, I 10* and they told him *to go back to work. W'hen he made

I the statement to Lieutenant ,Joyner, he did not read

what Joyner wrote, and signed it after questioning only be-

/

1 cause Joyner told him he couldn't leave the room until he signed (Record p. 99). He denied he struck a match, and dropped it, and denied he made any such statement. He said he had five or six drinks while at the dance (Record p. 116). The defendant maintained his innocence under extensive cross examination (Record pp. 101-143).

Willie West testified (Record pp. 143-147) that Sophie Harding and Linwood R.eid visited l1er home the evening be­fore the tragedy, and that they were on good terms.

J\fary Outten, sister of the defendant testified (Record pp. 147-155) that defendant came to her house, hig-hly excited, crying and trembling-, and burned, saying that "Sophie had ~et herself afire and he had tried to put it out.

Adam Gardner, who Jived ne.arby at 1340 Watson Street, testified (Record p. 160) that on the morning- of the occur­rence, he saw a man run down tlw sh·eet hollering for help, and come back witl1 two cab driYers and a police car. He

8 Supreme Court of Appeals of Virginia

identified the defendant as this man (Record p. 165). He also testified that he went in the house after the fire, with an officer, and saw an oil stove tilted over. (Record p. 169). The defense rested.

In rebuttal Joyner and Detective Therault testified that they did not tell the accused they were going to keep him in the room until he signed the statement (Record pp. 170 and 171-2). He said the defendant never denied that he struck the match. (Record p. 173).

Defense Counsel objected to and excepted to the granting of Commonwealth's instructions 1 and 2, and to the refusal to grant defendant's instructions A, D, J and M.

After the jury returned a verdict of guilty, the defendant moved the court to set aside the verdict and grant the de­

fendant a new trial, which motion was overruled, •and 11 :It the defendant excepted.

12" *ARGUMENT.

Assignment of Error Nttmber 1

The Court committed serious and reversible error in re­fusing to permit the defendant to testify on the question of the voluntariness and admissibility of the alleged confession. The Court rules on the admissibility of a confession after hearing evidence of its admissibility. As a matter of ~ogic and common sense, the Court should hear ·all the evidence, both that offered by the Commonwealth and that by the de­fendant, in order to have all the facts before making a rul­ing. If a defendant ~s not allowed to testify on this question in the closed hearing on admissibility, he is deprived of a ronstitutional right to present evidence in a procedural mat­ter of the very greatest importance to him.

In the federal courts, and under its rules, when the ad­missibility of a confession is in issue, the defendant is en­titled to testify as to pertinent facts out of the presence of the jury, and the refusal to admit such testimony is rever­~ible error. United States v. Cari.gnan, 342 U. S. 36, 96 L. ed. 48. 72 S. Ct. 97.

In the State Courts tl1at have directly considered the rmestion, Georgia, IrbJJ v. State, 95 Ga. 467, 20 S. E. 218, has J1P-ld that where a nrinw facie case as to the voluntary nature of the confession is made out. it ir;; 'vithin the diRcretion of tl1e Court as to whether it will hear the defendant's evi­denre on the preliminarv question hefore receiving- the con­-PeRsian. Ohio, Rufer v. l?tafe. 25 Ohio 464, and New York,

Linw·ood Reid v. Commonwealth of Virginia 9

People v. Fox, 20 N.Y. S. R. 316, 3 N.Y. Supp. 359, affirmed in 121 N.Y. 24 N. E. 923, have held that it is error to admit the confession without first permitting the defendant to of­fer evidence. In Quebec, R. v. Viau, Rap. Jud. Quebec, 7 B.R. 362, it 'vas held that the defendant is entitled to produce evidence before the confession is admitted. These cases are

annotated in 18 LRA (N.S.) page 778. 13* *In State v. Berberick, 38 Mont. 423, 100 Pac. 209,

16. Am. Cases 202 annotated in 50 LRA (N.S.) page 1077, the court said that the admissibility of a confession was solely a question for the court, and the hearing of evi­dence as to the voluntariness of the confession at a time when the confession had already been received in evidence, did not cure the error of the court in refusing to hear the same evidence before adrnitting the confession.

In Virginia the point does not seem to have been directly decided, but since the .admissibility of a confession is de­cided by the court, it can only be properly decided after hearing the evidence on both side out of the hearing of the jury. This is believed to be the general practice of trial courts in Virginia.

In the case of Omolvundro v. Oommo'I1!Wealth, 138 Va. 854, it was held that it is the function and duty of the trial judge to decide whether the confession was admissible "upon con­sideration of all the evidence on the subject" (Italics sup­plied).

In the case of Upshu,r v. Commonwealth, 170 Va. 649, at page 654, the court mentioned the failure of the accused to testify in an out of court hearing on the admissibility of the confession.

Both the foregoing cases seem to assume the right of the accused to testify in an out of court hearing on the admis­sibility of a confession, and it is submitted that such a right exists, and to refuse it is prejudicial and reversible error.

Assi,qnment of Error Number 2.

Error was made in the Court's ruling admitting the con­fession in evidence without independent proof beyond a rea­sonable doubt of the corpus delicti. This is mainly a question

I of interpr.etation of the evidence since the la'v is certain that tbe corp?.M delicti must be nroved before a confession is ad­missible. Lee's Criminal Trials in the Vireinias Sec. 141,

p. 87. Graham v. Com., 140 Va. 452. •124 S. E. 429. In

1

- 14'* this case there is no question that Sophie Harding- died as a result of burns, but th~re is a serious question as

10 Supreme Court of Appeals of Virginia

I to whether the Commonwealth established that a crime had been committed, and the crin1inal agency of another in its commission. The evidence of the Commonwealth's attempt­ing to show that the fire was not accidental, is weak and based ahnost solely on the conclusion of the witness vVeatherington, whose testimony is his opinion, unsupported by insufficient facts to exclude the possibility of accidental fire. N o~hJL__QQ___~~!!!onw~al_t_h _s4ow _ fl.JlY evidenc~ t~ negativ~ tlie possibility of Sophie Hardjng having set her­~.elf on fire, accidentally or intentionally.

\

Tne confession of the accused, alone and uncorraborated is not sufficient to establish the corp-z~ delicti. Collins v. ConHnonwealth, 123 Va. 815, 96 S. E. 826. Moore v. Com­monwealth, 132 Va. 7 41, 111 S. E. 128.

(

. The defendant submits that the Commonwealth did not establish the corpus delicti beyond a reasonable doubt and that the Court erred in admitting the confession until this had been done.

Assignment of Error N1t1nber 3.

The Court erred in ad1nitting the confession because the Commonwealth did not establish beyond a reasonable doubt that it was voluntarily given. The defendant had previously been questioned and released. He was taken from his job to jail, into a room with two detectives, W~l!est.iol!_eg_]Jim for_ahout_Jwq___hours without him having counsel Q_r__be._ing info~<! he ~as~ cJ!~!'g~d _:with a crim~:rre did not 'vrite out the confession. ~It was written by-- Joyner, typed up and the defendant "hesitantly'' sig-ned it. It should be here noted in connection with assignment of Error Number 1, that the defendant 'vas not allowed to testify so that the Court did not have all tbe evidence before it. The defendant main­tained for some time that he had nothing- to do with the fire. ~urely something the officers said or did n1.ust have induced

l1im to change, althoug·h they say they strictly complied 15* 'vith the la.w. *It should be l1ere noted that Detective

Therault in later testimony before the jurv contra­dicted .Joyner on the fact that the defendant did not for some time maintain he l1ad notl1ing- to do with the fire.

I It is well settled law that the Commonwealth must prove

l:ley.ond a reasonable doubt that the confession was volun­tary. Page, The Law of Evidence. Sec. 174, pag-e 315.

In tbe case of Escobedo v. lllin.ois decided bv the Supreme Court of the United States on June 22, 1964, the Court stated,

Linwood Reid v. Comn1onwealth of Virginia 11

"We have learned the lesson of history, ancient and mod­ern, that a system of criminal la'v enforcement which comes to depend on the 'confession' will in the long run be less reliable than a system which depends on extrinsic evidence independently secured by skillful investigation.''

The evidence in this case ~QQ_'Y~ that the i!!:terrogatio~_ of the accused was made after the police -deCiuea to ac~use him (Record- ~p-:-65r bec-ause -~u~<ri -lia_d -~_paence to _ ~s:>n tra-dict ·his sta~ement that heaufnot __ <l9.. ~t._He.__\va~t<!ILhe ~ouJd ~all ''h1s" lawyer, but w~§_p_gL~fford~_d_an oppo~tuni_ty to_have one ~_g._ <>_r to_ engag·e one. Under the broad language of lne Escobedo case, and the facts of this case, the accused was in effect denied the assistance of counsel at a time he needed it, and after the police had evidence to charge bin1 with a crime. To hold such a confession voluntary is to negative a man's right to counsel when charg·ed 'vith a crime.

V\7here a confession is obtained under the circumstance:; shown in this case, the Comn1onwealth has not proved be­yond a reasonable doubt that. it was voluntary. It is tainted with suspicion as to what induced the defendant to c.hange from one story to another in the course of a closed interro­gation by two police officers.

Assign'Jnent of Et·ror Number 4.

This assignn1ent of error is based upon the failure of the Court to strike the evidence of the Commonwealth and

16• dismiss the case .against the defendant, because *the Commonwealth had failed to independently establish

the corpus delicti, the Court bad refused to allow the de­fendant to testify on tbe admissibility of the confession, and had failed to establish that the confession 'vas voluntary. These points 11ave been covered in argument on the pre­ceding assignments of error. There are two other points in this assignment. The first is that the Commonwealth failed to corroborate the extra judicial statement of the accused, and the Court stated (Record pp. 81-82) that corroborating testimony that a crime was committed is not required.

{

''The extra judicial confession of the accused, alone ·and uncorroborated. that he committed the offense, is not suf­

. ficicnt to establish the corp·us delicti.'' Cockran v. Common­wealth. 122 Va. 801, 94 S. E. 329.

In the case of 01Janowich v. Cmnm.owwealth, 196 Va. 342, in considering whether the corpu.s delicti had lJeen proved,

12 Supreme Court of Appeals of Virginia

the majority of the court summed up the evidence tending to prove sam.e as follows :

''Here the evidence of the Commonwealth was that the baby was alive during the forepart of February 11th; that its existence was a burden to the defendant; that the de­fendant declared her intent to get rid of it; that while it was nlive, she planned to dispose of its body; that the child did not die from natural causes; that the defendant was the only one who bad contact with the ehild; that she had ·ample op­portunity to carry out her plan to get rid of it; .and that ~he made false and contradictory statements about the con­dition of the child and the disposition of its body. Her state­w~nts to her paramour and to the police, her declared mo­tive, her misleading, confusing and evasive answers and ex­planations, and the secretive and unnatural manner in which she disposed of the body of the child all join in pointing to her guilt.

''She does not explain her statements, her attitude or ac­tions before or after the death of the infant in any manner

consistent with her declaration of affection *for it. It 17* is demanding too much to ·ask one to believe that a

devoted and innocent mother could have conducted her­Relf as did the defendant."

Even in the face of these facts, 'vhich are infinitely strong­er than the evidence, if any, of a corp1ts delicti in the in­stant case of Linwood Reid v. Commonwealth, Justice Whit­tle argued a very persuasive dissent. In his dissent he point­ed out that there was a complete lack of evidence tending to prove that. the deceased met death by criminal violence. HP­pointed out tl1at "Unfortunately many children die of as­phyxiation or suffocation without the intervention of a criminal agency.'' Similarly in the instant case there 'vas no evidence, excluding the co11fession, that the deceased met neath bv criminal violen~e. Like the Opanowich case supra, it is nnfortnnatelv true that manv people burn to death in their hed. Often times their burnin~s are caused bv the de­ceased's cnrelessness in going to sleep with a lighted cig­nrette in the1r hand or moutb. 1\foreover. in this case. there was none of the stronf!" circumstantial evidence found in the PHse of 01Janowich v. Cowrnomvealth su'fJra, to the P.ffect that the exi·stencP. of the decP.ased was a. burn en on the defendant: that thP. dPfendant dPPlarPd his intention to O"et r1d of thl} ileceased: that wbi1e the deceased was alive, be planned to ili:;:pose of ber body; that the defendant was the onlv one

Linwood Reid v. Comn1onwcalth of Virginia 13

who had contact with the deceased; that the defendant made false and contradictory statements about the condition of the deceased and the disposition of her body and :finally that the defendant had a motive, declared or otherwise.

In the case of Ca1npbell v. Commonwealth, 194 Va. 825, it was held that the Commonwealth had produced enough evi­dence to prove the corpus delicti. In that case, the Common­wealth could prove without contradiction that a baby's head had been severed from its body by a .sharp instrument plus the testimony of various witnesses that the defendant had committed the crime and finally the confession of the de-

ceased. In this case there is not so much as a scintilla 18* of evidence that •the deceased did not die by accidental

means. In the case of St. Clair v. Commo'YIJWeaUh, 174 Va. 480,

after testimony by police offi-cers as to some very strong circumstantial evidence that the defendant was operating a "nip joint" the court held: "* * • the corpus delicti is an essential fact to be established either by direct evidence, or by circumstantial evidence so strong •and intense as to produce the full assurance of moral certainty that a crime has been committed.''

Finally, the case of Plymale v. Commo'WWealth, 195 Va. 582, seems to be the Virginia case closest in point with the instant ca.se. In the Plymale case the defendant was accused of murdering one Deal. From the evidence, Deal's apartment building had been set on fire and Deal's charred body was found in the debris. The defendant' confessed to the crime and a companion of the defendant's, who waited outside in the car and later hid the murder weapon for the defendant, revealed this strong- circumstantial evidence against the de­fendant. It was held that in view of the evidence above, and plus the fact that an autopsy perform.ed on deceased re­vealed that fractures were caused to deceased's head by blo'ws of a blunt instrument before the body _fwas burned, that the Commonwealth had proven the corpus delicti. It is infer­red that without the evidence of a murder weapon and of the fractured. head, the corpus delicti would not have been proven.

In 23 C. J. S. ~916 (5) at page 636, it is said: "The cir­cumstances relied on to establish the corpu.s delicti must be more than enough to raise a mere conjecture or suspicion. Where the corr>us delicti is -proved by circumstantial evi­dence, it should be so conclusive as to exclude every reason­a.ble hypothesis, other than that a crime has been committed, and is insufficient to establish the corptts delicti if it sug-

14 Supreme Court of Appeals of Virginia

gests a theory which is as consistent with the .absence of a crime as it is with the existence of a crime.

19• •rn the case of Reid v. Co·mmonwealth tried on De-cember 17, 1964, the Commonwealth and the Court ap­

peared to consider that proof of a death by burning and a confession is sufficient to prove the corpus delicti. &Lwith­out the conf~re_is__nJL.Jll:oOL<!f a crime.. Death by burnmg-aoes not exclude -accident, nor~does it exclude the likelihood that Sophie IIarding, who had been drinking, may have set herself on fire. Fo.r_j;)l~ __ r~t1J;<>n, th_~ e-yi~enc~, if -~Y, outsW:~ coP:.fes~io!l,. d!d_Aot_~~~~lude __ eY.ery reason~ble hypothesis other jnan that a .crime ];I_ad_ _b~en . committed'' an-a--tliereiOi-;-e -if was not sufficient to establish the corpu.~ d~--rna-aa1ttoll,-tlie confession itseif doeSD:Ofooviate the possibility of accident. The only incriminating state-ment in the confession is: · --------- ··---· -····-

\

"I struck a n1atch and thre'v it on the bed and her dress caught fire. I got scared and I took her to the back porch" (Record p. 59) .

.L<\.Il the rest of the defendant's statement shows no guilt, but rather shows be put out the fire and sought help.

The actions of the -accused shown in his confession, nega­tives any 1n.ens ·rea. The confession is consistent with acci­dent, and his actions in putting out the fire and seeking help are in his favor.

All the evidence introduced bv the Commonwealth failed to prove beyond a reasonable doubt that any crime had been coomn1itted by the accused.

Assi,qnntent of Error N~t'lnber 5.

This assignn1ent is based upon the granting of Common­wealth's Instr.uetiGns N.nm.be~ 1 and 2. Commonwealth'~

In~S-lnloroper only in that U;.lailed to include definition of involuntary m-anslaughter. The evi­dence of the ,ommon-We-alth and the confession of the ac-

/

cused, if believed, raises the question of involuntary man­slaughter. It shows a fight between Sophie Harding and tl1e

defendant, and that he struck a match, threw it on the 20* bed and her dress cnught fire. *This raises an inference

that the jury could have believed the accused in the prosecution of an unlawful act, but not feloniously acci­clentall:v set fire to Sopl1ie I!arding·. This would be involun-

Linwood Reid v. Comn1onwealth of Virginia 15

iary manslaughter. Byrd v. Commonwealth, 89 Va. 536, 16 S. E. 727.

Certainly the defendant is entitled to an instruction based on a possibility raised by the Commonwealth's own evi­dence.

Corrunouwealth 's In~ruction Number_2, so far as it goes is correct, but it does not contain explanatory language limiting it to the question before the jury and adding words to explain to the jury just wl1at acts were presumed to have been intended. In§Jnlctions of thi0y_p.e-rcequll:e explanatory language. In_f!1111Imess to t"'leCoU!'J;,_j;_Qi_s_Jyp!tJ>iJ.n§lr.u.Ction w~ther instrucpons given a.r~ considered, does noL~~~rrl to bave beerllle1a to oe--~ .Johlfison v. Co'Jnmonwealth, 188 Va. 848, 77 s. E. {2ncT)-s~3.

liowever, the defendant contends that standing alone, t without language explaining .to what acts it is to be applied, it is erroneous.

Ass·ignm,en-t of Error Nuntber 6.

The defendant assigns as error the refusal of the Court to grant instructions A, D, J, and M offered by the defendant.

I11struction A 'vas similar to Co1nmonwe-alth 's Instruction 1, as granted except for stating a. definition of involuntary manslaughter. The instruction was approved in Henry v. Com .. , 195 \Ta. 281, 77 S. E. 2nd, 863. As in the exception to Commonwealth Instruction 1, the defendant asserts that the evidence of the Commonwe-alth raises the question of in­voluntary manslaugl1ter and that it was error to refuse this instruction.

Instruction D, offered by the defendant stated:

''The court instructs the jury that, upon the trial of this ease, if a reasonable doubt of any fact necessary to establish the g1.1ilt of .the aceused as charged in the indictment be

raised by the evidence or lack of evidence, such doubt 21 * is decisive, and the jury must acquit the accused, *since

a verdict of 'not gnilty' means that no more than thP. g·uilt of the accused has not been established in the precise, ~pecific, and narrow form prescribed by la·w. ''

This instruction was proper. McCue v. Com., 103 Va. 870, 49 S. E. 623.

It was important to defendant's theory of the case and so ~honld have been given.

Instruction .I stated:

16 Supreme Court of Appeals of Virginia

"The court instructs the jury that if they shall have any reasonable doubt as to any important fact necessary to con­vict the prisoner of the offense of murder, whether in the first or second degree, they are to give the prisoner the benefit of such doubt.''

This instruction was important to the defendant under his theory of the case. It is ·a proper instruction. Honesty v. Com., 81 Va. 283. Refusal to give it in this case was error.

In view of the verqi~t of ·second degree murder,_ t!leJail­ure to g1ve Defendiiit \~_ln.itru.ction -M-_ was_ P.Qt --i>r.eju_dicial er..ror, ana .!!.~F~!lJ_ o{_(u:r~~ as to ~his instr~~t!.9n is not pursued. - ------ ·

--------- Assignment of En·or Nurnber 7.

This assign1uent is that on all the evidence in the case, the verdict w:as contrary to the law and the evidence, and ·should have been set aside and a new trial granted the defendant.

Weak as the Commonwealth's case is, the defendant's steadfast testimony on direct and cross exam.ina tion, the evidence of his sister as to his burned condition and his ex­clamatory statement, 'vhile in a high state of emotion, that ''Sophie set fire to herself,'' sufficiently rebuts any evidence presented by the Conunonweal.th.

The et:nce of ih_e ___ QQ!!lill:.Q!l:W.~.f!H.h. its.~lf _ _dQeLJlOt negative _ __ELP.9.~;?.§.H.ljJHy __ of _:_a~~~d~~t,_ ~h~. ~ositive evidence o~

the accused, supported by his sister,· ~iiia oy the ~evi-22• dence of Adam Ga-I~dner snow's that tlie' fire 'vas ac-

cic:fental, tbat Sophfe- Harding,· who_was -aione in the house 'ffiliS~ve accidellf~arled__t_@_gre. The efforts of the accused to put out the fire, to secure help and the con­versation with Sophie regarding her money after she had been burned, negative a m.ens rea in the defendant. On all the evidence he was not shown to be guilty beyond a rea­sonable doubt, and should have been g'ranted a new trial.

23"" ""CONCLUSION.

The petitioner for the errors assigned in this case of Com­morvwealth v. Linwood Reid, all of which he alleges were prejudicial, alleges that the Court of Hustings for the City of Portsmouth has permanently and irreparably prejudiced bis rights and for these reasons, asks by counsel that thP. Supreme Court of Appeals of Virginia reverse the judgment

Linwood Reid v. Commonwealth of Virginia 17

of the Court of Hustings for the City of Portsmouth, and grant the defendant a new trial.

ROBERT D. POWERS, JR. 210 Law Building Portsmouth, Virginia.

DONALD G. WISE 404-406 New Kirn Building Portsmouth, Virginia.

24• *We, Robert D. Powers, Jr., 210 Law Building, and Donald G. Wise, 404-406 New Kirn Building, Ports­

mouth, Virginia, Attorneys at Law practicing in the Su­preme .Court of Appeals of Virginia, do hereby certify that in our opinion the judgment in the above entitled case ought to be reversed by this Honorable Court, -and the defendant granted a new trial. We further certify that ~a copy of this petition was mailed on the lOth day of March 1965, to Rob­ert Y. Button, Attorney General of the Commonwealth of. Virginia, Richmond, Virginia.

Linwood Reid City Jail Portsmouth, Virginia

Your petitioner adopts this petition for his opening brief. Counsel does not desire to state or-ally the reasons for grant­ing this petition.

By Counsel:

ROBERT D. POWERS, JR. 210 Law Building Portsmouth, Virginia.

DONALD G. WISE New Kirn Building Portsmouth, Virginia.