AN OVERT ACT Endnotes 1 See, e.g. , Carter v. Commonwealth , 293 Va. 537, 544 (2017); Hines v. Commonwealth , 292 Va. 674, 679 (2016); Commonwealth v. Cary , 271 Va. 87, 99 (2006). 2 4 William Blackstone, Commentaries 184–85. 3 Joel Prentiss Bishop, Commentaries on the Criminal Law (7th ed. 1882) (cited as an authority in Stoneman v. Commonwealth , 66 Va. 887, 896 (1874) (below)) notes instanc-es in which the requirement persisted: “These cases of mere assault, and cases of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books, that one cannot justify the killing of another, though apparently in self-defence, unless he retreated ‘to the wall,’ or other interposing obstacle, before resorting to this extreme right.” Id. at § 850. “If there is a mere fi ght, or an assault not murderously intended, and it progresses to a confl ict for blood, neither party can innocent-ly avail himself of the right of perfect defence by killing the other, until he has endeavored to extricate himself by ‘retreating to the wall.’” Id. at § 869. Furthermore, the requirement to retreat remains to this day in situations involving the threat of deadly force where the defendant is at least partly responsible for instigating the confrontation. See Osman v. Osman , 285 Va. 384, 392 (2013) (citing Avent v. Commonwealth , 279 Va. 175 (2010)). 4 Stoneman , 66 Va. at 900; see also McCoy v. Commonwealth , 125 Va. 771, 775 (1919) (“[A] person assaulted while in discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may in turn be-come the assailant, infl icting bodily wounds until his person is out of danger.”) (quoting Jackson v. Commonwealth , 96 Va. 107 (1898) (internal quotations omitted). Stoneman , 66 Va. at 896 (citing Bishop § 627) (emphasis mine). See, e.g. , Carter, 293 Va. at 544 (“To establish a claim of self-defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim. . . . The defendant must also show that he was in imminent danger of harm, that is, a showing of an overt act or other circumstance that affords an immediate threat to safety.”) Yarborough v. Commonwealth , 217 Va. 971, 972–73, 978 (1977); Commonwealth v. Cary , 271 Va. 87, 101 (2006) (fi nding that walking toward the defendant from a distance of eleven to eighteen feet constituted an overt act warranting self-defense, in light of the fact that the deceased had been assaulting the defendant fi ve minutes prior); Vlastaris v. Commonwealth , 164 Va. 647, 651 (1935) (fi nding that walking toward the defendant to within a distance of six to eight feet, shoving a hand in the hip pocket, and shouting “I’ll kill you now” did not constitute an overt act, notwithstanding the deceased’s two earlier assaults on the defendant). Jonathan Edwards, Norfolk Offi cer’s Trial in the Killing of David Latham Comes with a Tense Backdrop of National Unrest , The Virginian-Pilot, September 25, 2016, avail-able at https://pilotonline.com/news/local/ crime/article_14e6aaeb-2b9e-5895-ad82-e2d31a801ee0.html. Jonathan Edwards, Norfolk Offi cers Testify that David Latham Never Threatened Them Before He Was Shot, Killed , The Virginian-Pilot , September 28, 2016, available at https:// pilotonline.com/news/local/crime/article_ e6ab3e9f-e994-58e4-978e-be8174b69c84 .html. Jonathan Edwards, Norfolk Offi cer Testifi es at Manslaughter Trial, and Defense Rests Its Case , The Virginian-Pilot, October 4, 2016, available at https://pilotonline.com/news/ local/crime/article_558318d6-c748-56ef-adf1 -f5b315715371.html. Jonathan Edwards, “All the Weight Is Off My Shoulders”: Norfolk Offi cer Found Not Guilty of Manslaughter in Mentally Ill Man’s Death , The Virginian-Pilot, October 6, 2016, avail-able at https://pilotonline.com/news/local/ crime/article_c8d0b268-8876-5456-9e4d -ee3bc54551a8.html. Jury Instruction 11, Commonwealth v. Edington , CR15-1471, (Norfolk Circuit Court, 2016). Jonathan Edwards, supra note 11. Transcript of Testimony of Sergeant Puckett at 30, Commonwealth v. Edington , CR15-1471, (Norfolk Circuit Court, 2016). Id. at 33. Id. at 34–35. Id. at 38–39. Harper v. Commonwealth , 196 Va. 723, 731 (1955). This is precisely the interpretation adopted by the instructions given to the members of the jury in Edington v. Commonwealth : “2) David Latham made an overt act which the defen-dant perceived to signal his intent to infl ict death or great bodily harm.” Jury Instruct ion 11, CR 15-1471 (Norfolk Circuit Court 2016) (emphasis mine). 10 5 6 11 7 12 13 14 15 16 17 18 19 8 9 Join the Criminal Law Section Organized in 1967, the purpose of the Criminal Law Section is to concern itself with the problems of crime, criminology, and the administration of criminal law in the Commonwealth of Virginia, except those subjects specifi cally excluded by direction of the President of the Virginia State Bar. As one of the largest sections, the Section on Criminal Law broadly represents prosecutors, defense counsel, trial judges and academics concerned with the criminal justice system in the Commonwealth. It also has one of the most active continu-ing legal education programs. For the past 30 years, the section has held its annual Criminal Law Seminar in February in two locations in the state. Outstanding speakers, including nationally renowned luncheon speakers such as Bobby Lee Cook and Gerry Spence, make this seminar the most highly successful CLE program on criminal law in Virginia. In addition, from time to time the section presents its “Carrico Professionalism Award” to a member of the public or the profession. The section also publishes approximately four issues a year of the Criminal Law News . Visit www.vsb.org/site/sections/criminal www.vsb.org CRIMINAL LAW SECTION | Vol. 68 | August 2019 | VIRGINIA LAWYER 35