COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

FRED BYRON GILBERT 

 OPINION BY 

v. Record No. 2527-97-1 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 10, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY 

E. Everett Bagnell, Judge 

 W. Alan Maust for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Fred Byron Gilbert was indicted and tried for the murder of 

Perry Buchanan and use of a firearm in the commission of murder. 

 The trial judge convicted Gilbert of voluntary manslaughter. On 

appeal, Gilbert contends the trial judge erred in ruling that the 

evidence (1) was insufficient to prove self-defense and (2) was 

sufficient to support a conviction of voluntary manslaughter. 

Because we conclude that the evidence supports Gilbert's claim of 

self-defense, we reverse his conviction. 

 I. 

 In the Commonwealth's case-in-chief, the evidence proved 

Perry Buchanan went to a restaurant at night accompanied by his 

brother, his six-year-old daughter, and his friend, Felton 

Benton. Benton, the only person in that group who was a witness 

at trial, testified that he and the Buchanan brothers drank 

whiskey at Benton's house earlier that evening from 6:00 p.m. 
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until 9:00 p.m. After Buchanan and his brother drank beer at the 

restaurant, Buchanan said, "I've got to go down the road . . . 

and tend to a little business." Buchanan then took the group to 

a house in the country. 

 Benton testified that he had not previously met Gilbert and 

was unable to describe the homeowner who invited them to enter. 

Benton said he toured the house with the homeowner and then 

watched television with Buchanan's daughter. Benton testified 

that while the homeowner and the Buchanan brothers were drinking 

at a bar in the room, he fell asleep on the couch. He was 

awakened by a gunshot. When he saw Buchanan lying on the floor, 

he woke Buchanan's brother. Benton also claimed that he saw 

someone standing momentarily at the front door, but he could not 

identify that person. He further testified that Buchanan's 

six-year-old daughter telephoned the police. 

 Deputy Sheriff James Garrett was dispatched to Gilbert's 

house. He testified that the dispatcher's report stated the 

telephone call came from Gilbert, not the six-year-old child. 

When the deputy sheriff arrived at Gilbert's house at 11:40 p.m., 

Gilbert staggered to the front door covered in blood. Gilbert 

was bleeding from his head, was bruised on his stomach and 

shoulder, and had various scratches on his body. After the 

deputy sheriff persuaded Gilbert to lie on the ground, the deputy 

sheriff entered the house and saw Buchanan lying on the floor and 

bleeding from his legs. The deputy sheriff testified that 
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Buchanan's brother and Benton were very intoxicated and were 

standing around Buchanan. Buchanan's six-year-old daughter was 

also in the room. Benton told the deputy sheriff that he had 

been asleep and did not know what happened. 

 When the deputy sheriff questioned Gilbert, Gilbert said he 

had been in a fight, that Buchanan and his brother beat and 

kicked him to the floor, and that he retrieved his gun and shot 

Buchanan. The deputy sheriff observed a trail of blood "going 

from the living, dining room area . . . down the hallway toward 

the bedrooms." He found blood in Gilbert's bedroom. The deputy 

sheriff also testified that more than eighteen metal staples were 

used to close Gilbert's head wound and that Gilbert gave him "a 

pair of vice grips" that had been used to beat Gilbert. 

 After Gilbert was treated for his injuries, the deputy 

sheriff again spoke with Gilbert and wrote the following 

statement: 

 Before being arrested, Fred Gilbert said that 

he feared for his life that he remembered 

being hit by [Buchanan's brother], he thinks, 

and that he was on the ground and they were 

kicking him. He remembers someone saying we 

ought to kill the son of a bitch. He also 

said he was in the bathroom bleeding and he 

thought about all the knives he has thinking 

they might kill him. He said he went to his 

bedroom and got the gun from between the 

mattresses. He didn't say anything else. 

 The medical examiner's report indicates that one bullet 

entered both of Buchanan's legs and severed an artery. When 

Buchanan arrived at the hospital, his blood ethanol level was 
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".23% ethanol by weight by volume." The report also stated that 

Buchanan died from complications of shock caused by a massive 

hemorrhage from an artery in his left thigh that was severed by a 

bullet. 

 In analyzing Gilbert's self-defense argument, the trial 

judge accepted Gilbert's version of the events. Gilbert 

testified that he knew Buchanan and that he had spoken to 

Buchanan at the restaurant the night of the incident. Buchanan 

asked if Gilbert had alcoholic beverages at home and if they 

could drink at Gilbert's house. Gilbert agreed. Buchanan, his 

brother, his daughter, and Benton later arrived at Gilbert's 

house "out in the country." Gilbert had not previously known 

Benton and had once met Buchanan's brother. 

 Gilbert testified that he, the Buchanan brothers, and Benton 

stood around a breakfast bar, which divided the kitchen from the 

living room. They were drinking whiskey and playing a game of 

hand strength with "vice grips." Buchanan's daughter watched 

television. When Gilbert won the game, Buchanan's brother struck 

him on the head with one of the vice grips, causing him to fall 

to the floor and lose consciousness. As Gilbert regained 

consciousness and tried to rise, Buchanan and his brother punched 

and kicked Gilbert until he again fell to the floor. While he 

was on the floor, Gilbert heard one of the brothers say, "we 

ought to kill the son of a bitch." At that time, Gilbert could 

not account for Benton's presence. 
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 When Buchanan and his brother turned away, Gilbert could 

barely walk and moved to an adjacent bathroom where he noticed 

that he had suffered an open wound to his head. Concerned that 

the brothers might find his hunting knives and aware that his 

house was isolated in the country, Gilbert went to his bedroom 

and retrieved a gun from under his mattress. Gilbert testified 

that he knew Buchanan and his brother had reputations for 

violence. 

 Gilbert came from the bedroom and told the brothers "to get 

the hell out of [his] house." Gilbert testified that, as he held 

his gun pointing to the floor, Buchanan and his brother looked 

surprised and initially did not move. Benton, who was then 

sitting on a couch with Buchanan's daughter, held her after she 

began screaming and crying. When Gilbert repeated his demand 

that they leave, Buchanan, who was standing five or six feet away 

from Gilbert, "made a move" toward Gilbert. Gilbert fired his 

gun, aiming "low" so as to "scare [Buchanan]." The bullet struck 

Buchanan in the leg, causing him to fall to the floor. Gilbert 

then telephoned the police. He confirmed the deputy sheriff's 

testimony that he, the Buchanan brothers, and Benton were 

intoxicated. 

 The evidence also proved that the Commonwealth prosecuted 

Buchanan's brother for maiming Gilbert. Gilbert testified for 

the Commonwealth in that prosecution. However, prior to 

Gilbert's trial, Buchanan's brother died of causes unrelated to 
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this incident. 

 At the conclusion of the evidence, the trial judge found 

that Gilbert was not at fault in the confrontation. The trial 

judge accepted as fact that Gilbert was hit on the head, 

receiving a laceration that "was no small injury," and that 

Gilbert's bruises substantiated Gilbert's testimony that he had 

been kicked and beaten. The trial judge also noted that "[a]t 

one point if [Gilbert] had pulled out a gun and shot [Buchanan] 

it may well have been self-defense because [Gilbert] did suffer a 

substantial beating." However, the trial judge concluded that 

after Gilbert was able to exit the fray and leave the room, he 

was not privileged to return with a gun and shoot Buchanan, even 

after "one of the Buchanans made a move toward him." 

 II. 

 An accused who claims self-defense to a charge of homicide 

"implicitly admits the killing was intentional and assumes the 

burden of introducing evidence of justification or excuse that 

raises a reasonable doubt in the mind[] of the [trier of fact]." 

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 

(1978). The Supreme Court summarized the principles of 

self-defense by noting the following: 

 The law of self-defense is the law of 

necessity . . . . [A] defendant must 

reasonably fear death or serious bodily harm 

to himself at the hands of his victim. It is 

not essential to the right of self-defense 

that the danger should in fact exist. If it 

reasonably appears to a defendant that the 

danger exists, he has the right to defend 

against it to the same extent, and under the 
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same rules, as would obtain in case the 

danger is real. A defendant may always act 

upon reasonable appearance of danger, and 

whether the danger is reasonably apparent is 

always to be determined from the viewpoint of 

the defendant at the time he acted. These 

ancient and well-established principles . . . 
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 emphasize the subjective nature of the 

defense, and why it is an affirmative one. 

Id.

 The distinction between justifiable and excusable 

self-defense claims is well established. "Justifiable homicide 

in self-defense occurs where a person, without any fault on his 

part in provoking or bringing on the difficulty, kills another 

under reasonable apprehension of death or great bodily harm to 

himself." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 

31 (1958). When the accused is free from fault in bringing on 

the fray, the accused "need not retreat, but is permitted to 

stand his [or her] ground and repel the attack by force, 

including deadly force, if it is necessary." Foote v. 

Commonwealth, 11 Va. App. 61, 67, 396 S.E.2d 851, 855 (1990). 

 "Excusable homicide in self-defense occurs where the 

accused, although in some fault in the first instance in 

provoking or bringing on the difficulty, when attacked retreats 

as far as possible, announces his desire for peace, and kills his 

adversary from a reasonably apparent necessity to preserve his 

own life or save himself from great bodily harm." Bailey, 200 

Va. at 96, 104 S.E.2d at 31. If a killing is proved to be either 

justifiable or excusable, the accused must be acquitted. Id.

 Gilbert contends he did not provoke the difficulty and 

"kill[ed] upon reasonable apprehension of death or great bodily 

injury to himself." The Commonwealth argues that Gilbert's claim 

of self-defense was defective because he had not "retreated as 
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far as possible, announced his desire for peace and then shot his 

weapon only to preserve his own life." 

 The Commonwealth, as did the trial judge, misperceived the 

nature of the defense. Only if Gilbert's shooting of Buchanan 

was excusable, and not justifiable, was Gilbert under a duty to 

retreat as far as possible before shooting Buchanan. The trial 

judge found and the evidence proved, however, that Gilbert was 

not at fault in inviting the Buchanans to his house for drinks. 

Indeed, no evidence proved Gilbert was at fault in bringing on 

the fray. The fact that Gilbert had "been drinking [whiskey with 

the Buchanan brothers prior to the assault upon him] does not 

ipso facto deprive him of the right of self-defense." Hawkins v. 

Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933). 

 Long ago the Supreme Court noted that "'a [person] is not 

obliged to retreat if assaulted in his [or her] dwelling, but may 

use such means as are absolutely necessary to repel the assailant 

from his [or her] house . . . even to the taking of life.'" 

Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 

(1922) (citation omitted). In assessing the means that Gilbert 

used, we note the "fundamental doctrine that a person who has 

been threatened with death or serious bodily harm and has 

reasonable grounds to believe that such threats will be carried 

into execution, has the right to arm himself [or herself] in 

order to combat such an emergency." Bevley v. Commonwealth, 185 

Va. 210, 215, 38 S.E.2d 331, 333 (1946). See also Pike v. 
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Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839, 840 (1997) 

(noting that "[t]he common law in this state has long recognized 

the right of a landowner to order a trespasser to leave, and if 

the trespasser refuses to go, to employ proper force to expel 

him"). 

 Gilbert suffered a brutal and unprovoked attack in his home 

and reasonably feared for his safety. The attack occurred late 

at night in an isolated, rural area. Gilbert testified that he 

"could barely walk" after he was beaten and kicked and that his 

attackers openly suggested killing him. The testimony by the 

deputy sheriff and Gilbert concerning Buchanan's reputation for 

violence support Gilbert's claim of "reasonable apprehension 

. . . and . . . the likelihood of [Buchanan's] aggressive 

behavior." Edwards v. Commonwealth, 10 Va. App. 140, 142, 390 

S.E.2d 204, 206 (1990). This evidence, which the trial judge 

accepted, proved that Gilbert reasonably feared death or serious 

bodily harm "at the time of the shooting," Taylor v. 

Commonwealth, 185 Va. 224, 227-28, 38 S.E.2d 440, 441 (1946), 

that after Gilbert ordered Buchanan to leave Buchanan made "some 

overt act indicative of imminent danger to [Gilbert] at the 

time," Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 

255 (1955), and that "the amount of force used [was] reasonable 

in relation to the harm threatened." Diffendal v. Commonwealth, 

8 Va. App. 417, 421, 382 S.E.2d 24, 26 (1989). 

 Gilbert properly raised the claim of justifiable 
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self-defense. An accused who acts in self-defense is entitled to 

an acquittal. Bailey, 200 Va. at 96, 104 S.E.2d at 31. Because 

Gilbert introduced evidence of justifiable self-defense 

sufficient to raise a reasonable doubt as to his guilt, we 

reverse the judgment. 

 Reversed and dismissed.