                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia


JONATHAN KEVIN WRIGHT

v.          Record No. 0832-94-4          MEMORANDUM OPINION*
                                       BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                     MAY 16, 1995


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       Donald M. Haddock, Judge
            Richard C. Goemann, Senior Assistant Public Defender,
            for appellant.

            Leah A. Darron, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on brief),
            for appellee.



     Jonathan Kevin Wright (appellant) appeals from a judgment of

the Circuit Court of the City of Alexandria (trial court) that

approved his jury trial conviction for voluntary manslaughter.

The sole issue presented is whether the evidence is sufficient to

support that conviction.    Upon review of the record, we find that

the evidence is sufficient to support the judgment.

     Voluntary manslaughter is defined as the unlawful killing of

another without malice, actual or implied, upon sudden heat, or

reasonable provocation, or in mutual combat.    King v.

Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817).    It is a common law

offense.    Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d

796, 797 (1981).    Punishment for that offense is established by

____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Code § 18.2-35.   To support a conviction for voluntary

manslaughter the Commonwealth is not required to prove malice,

either expressed or implied.     Essex v. Commonwealth, 228 Va. 273,

280, 322 S.E.2d 216, 219 (1984); Clark v. Commonwealth, 90 Va.

360, 18 S.E. 440 (1893).    When the evidence is clear, as here,

that the accused inflicted the blow that caused the death of the

victim, and the defense is self-defense, the burden is on the

accused to prove that the killing occurred in self-defense.      See
Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied

439 U.S. 826 (1978).

     Upon familiar principles on appeal, when the issue is

sufficiency, we view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.     Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).    Viewed in that light, the

record reveals that appellant admitted that he inflicted the

wounds by gunshot that resulted in the victim's death.     He

contended that the shots were fired in self-defense.     According

to appellant, he used the gun because the victim was advancing on

him with a knife the victim had taken from the kitchen.

     The Commonwealth presented evidence that showed appellant

had bought the gun three or four months prior to the day he used

it to kill the victim.    Appellant asserted that prior to coming

toward him with the knife in her hand, the victim had pointed the

gun at him and said:   "I kill you."     The gun, however, had been


                                 - 2 -
laid aside on top of a video cassette recorder.    When the

paramedics answered a 911 call, they found the victim seated in

an armchair next to a sofa.    A knife was found on the sofa.     The

victim's fingerprints were not found on the knife.      The

paramedics also observed that when they arrived there was blood

on the sofa and appellant's shirt, but none on the floor.     A

.38 caliber revolver was found under some papers on the dining

room table.    No fingerprints were found on the gun.
        The victim died from multiple gunshot wounds.   The victim

was left-handed.    Expert testimony disclosed that one of these

wounds was to the victim's left hand, described as a "defensive

wound" and that from the pattern of the wound he opined that her

wounded hand had not held a knife when the bullet entered her

hand.    The expert also testified that other wounds were inflicted

from a distance of one to no more than twelve inches.

        Two bullets, fired from a distance of "no more than twelve

inches," entered the victim's left breast and chest and traveled

in straight lines backward, downward, and to the right before

lodging in her back.    Another bullet fired from no more than one

inch entered the back of the victim's left shoulder and traveled

in a straight line forward, downward, and to the right.

        Based on his plea of self-defense, appellant contends that

he was entitled to an acquittal as a matter of law.
            As a general rule, whether provocation,
          shown by credible evidence, is sufficient to
          engender the furor brevis necessary to rebut
          the presumption of malice arising from a
          homicide is a question of fact. Only when



                                 - 3 -
           the trial court, giving the defendant the
           benefit of every reasonable inference from
           the evidence, can say that the minds of
           reasonable men could not differ does the
           question become a question of law.


McClung v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292

(1975).
             The jury were not required to accept the
           defendant's statement as to how the killing
           occurred simply because the defendant said it
           happened that way and no witnesses testified
           to the contrary. If from the improbability
           of his story and his manner of relating it,
           or from its contradictions within itself, or
           by the attending facts and circumstances, the
           jury are convinced that he is not speaking
           the truth, they may reject his testimony,
           even though his reputation for truth is not
           attacked and he is not contradicted by other
           witnesses.

Randolph v. Commonwealth, 190 Va. 256, 263, 56 S.E.2d 226, 229

(1949).   Moreover, even if the jury believed that the victim in

some manner had threatened appellant, on this evidence, the jury

could have found that appellant used more force than necessary to

repel the threat.   See Cook v. Commonwealth, 219 Va. 769, 773,

250 S.E.2d 361, 364 (1979).

     We hold that under these facts, it was not error to submit

the issue to the jury, and that there is evidence to support its

verdict and the judgment of the trial court.   Accordingly, that

judgment is affirmed.

                                               Affirmed.




                               - 4 -
