Boggs v. Com., 4744

• Decision Date: 02 December 1957
• Docket Number: No. 4744,4744
• Citation: 100 S.E.2d 766,199 Va. 478
• Court: Virginia Supreme Court
• Parties: SIMON BOGGS v. COMMONWEALTH OF VIRGINIA. Record

Page 766

100 S.E.2d 766

199 Va. 478

SIMON BOGGS v. COMMONWEALTH OF VIRGINIA.

Record No. 4744.

Supreme Court of Appeals of Virginia

December 2, 1957.

G. Mark French, for the plaintiff in error.

R. D. McIlwaine, III, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Simon Boggs was convicted by a jury of murder in the second degree and sentenced to twenty years' confinement in the penitentiary for killing Woodrow Mullins during an altercation which was primarily between Boggs and Ray Bolling.

The evidence is sufficient to sustain a finding of murder in the second degree, but accused assigned numerous errors which he asserts were made during the trial and for which he moved that the verdict be set aside. Those material to the questions presented may be stated as follows:

The court erred during the progress of the trial by its failure promptly and effectively to exclude prejudicial evidence; in the admission of evidence harmful to accused; and in the refusal of instructions.

To understand Boggs' contentions, it is necessary to state the pertinent evidence and relate some incidents of the trial.

Woodrow Mullins operated a coal mine in Wise county, Virginia, from which Boggs and Ray Bolling hauled coal by trucks. The latter two were brothers-in-law, accused's wife, Pauline, being Bolling's sister.

Several years previously Boggs had beaten his wife and there had been trouble between Bolling and accused growing out of that incident. On that occasion Boggs was challenged to a fight by Bolling but he declined to engage in an encounter. He threatened instead to shoot Bolling. The antagonism engendered at that time seemed, however, to have been forgotten, for no other trouble had been experienced between these men until the morning of the homicide.

On the evening previous to the homicide Boggs and his wife had engaged in an altercation in which she had been beaten and driven from their house, and Bolling had learned of this mistreatment of his sister.

Ray Bolling testified that about seven o'clock on the morning of September 28, 1956, he drove by Boggs' house to take him down to where coal was to be dumped from trucks loaded the previous day, but not finding Boggs, he drove to the home of accused's brother and found him there. When Boggs came out, he stated that he had experienced some trouble during the night and asked Bolling to unload his truck and move it from the ramp where it had been left the previous afternoon. He was then dressed in a work shirt and overall pants, and Bolling observed the print of a pistol in his front pocket. Others were present in Bolling's car, and he then said nothing to Boggs concerning the latter's mistreatment of his wife although he said that he had intended to do so.

Bolling unloaded and moved accused's truck as requested, and Boggs took his truck and drove to a service station where he had a drink. Bolling then proceeded in his truck to the area of the mine, and being aware that Boggs was armed, he carried a pistol. He said that he intended to disarm Boggs and again offer accused an opportunity to 'see if he could give me a whipping like he did my sister.' When Bolling arrived at a fork in the road on his way to the mine, he found Woodrow Mullins and Clyde Mullins removing a fallen tree from the lower branch of the road. He assisted them in their work, and then waited for Woodrow and Clyde Mullins to finish sawing a tree on the upper fork. About that time accused passed Bolling in his empty truck and proceeded down the lower fork of the road for a load of coal. He returned later to the fork with his loaded truck and asked Bolling for a drink. Bolling replied that Woodrow and Clyde Mullins had a drink with them on the upper road. Accused then alighted from his truck; Bolling covered him with a pistol and asked Boggs where his gun was. Accused stated that he had left it at his brother's home and pulled his coat aside to show Bolling that he was unarmed. Bolling observed no weapon, nor could he see any print of a gun in Boggs' pocket.

Deceased saw the altercation, came down from the upper road, and asked the two men to forget their differences. Bolling said he thereupon gave his weapon to deceased and informed him that he wanted to see Boggs 'beat me up like he did my sister.' He removed his coat, placed it on Boggs' truck and at that time accused pulled a pistol which he had behind him under his coat and demanded that Woodrow Mullins drop the gun that Bolling had given him. Mullins, standing to the left some six or eight feet from Bolling and slightly above the latter in the upper road, hesitated; accused then cursed him and repeated his command. Bolling thereupon looked over his shoulder and told deceased to drop the pistol and he did so. Boggs then exclaimed to Bolling, 'You was going to kill me, wasn't you?' Bolling's reply was that he was just going to see if he could give him a good whipping, and then Boggs shot three times. The first shot missed, the second hit Bolling in the right shoulder, and the third struck Mullins and inflicted a fatal wound from which he died before medical help was obtained.

Boggs' testimony as to what happened is materially different. He said that when he reached the forks in the road with his loaded truck, Bolling asked how he was feeling and said, 'Would you like to have a drink?' and suggested that they go to where a nearby keg had been placed. Accused alighted from his truck and as he did so, Bolling drew a pistol on him. Boggs gives this account of what then transpired:

'He said, 'Here is your God damn drink of liquor.' I said, 'Wait a minute. What is this all about?' He said, 'God damn you, you know what it's all about. You pulled my sister's hair out last night.' I said, 'You get the straight of it before you kill somebody.' He said, 'Where's your gun. I know you have got it, God damn you.' And I said, 'Ray, let's not have no trouble' and seemed like he said, 'Have you got it in the truck?' I am not definite whether he said that or not. Anyway, at that time Woodrow walked down behind him kindly on my left, in that direction, and Woodrow says, 'Ray put that old gun up' and Ray definitely -- he didn't act like he knew he was behind him. Ray kindly wheeled and said, 'I'm going to kill the son of a bitch.' When he wheeled I started shooting. I shot three times about as fast as I could fire. He dropped his gun. I quit shooting. It all happened so quick, the first I knowed Woodrow was hit.'

He further testified that he shot at Bolling in self-defense because he 'thought it was either him or me'; that he did not shoot at Mullins, for deceased was one of his best friends, and when he saw Mullins was hit, he ran to him and was holding Mullins' head in his arms when he died.

Before counsels' opening statements were made, a pre-trial conference was held by the judge, the Commonwealth's Attorney, Mr. Asbury, Messrs. Greear and Long, who assisted in the prosecution, and Mr. G. Mark French, counsel for accused. Mr. French insisted that details of the altercation between accused and its wife on September 27, 1956, in which Pauline Boggs was rather severely beaten should not be admitted in evidence. He also stated that accused had been previously convicted in a federal court for a felony, i.e., manufacturing or illegally having in his possession intoxicating liquor, and insisted that for impeachment purposes, the Commonwealth should be limited to asking accused if he had been convicted of a felony, and if he answered in the affirmative, that no further inquiry should be allowed. Section 19-239, Code 1950. No order was entered incident to the conference, but the judge indicated that the Commonwealth should not go into the details of accused's conviction for a felony but could inquire of him whether he had been convicted of a felony or felonies. No ruling was made upon whether or not the Commonwealth would be allowed to prove the details of the altercation between accused and his wife on the previous evening.

When the opening statement was made by the Commonwealth's Attorney in referring to Boggs' conduct on the evening of September 27 and Pauline Boggs' condition, he said that Boggs 'had been drinking heavily' and had been to neighbors' homes looking for her with a flashlight and gun, and when told that she was not there, he called them liars; that accused's wife 'was hurt, beaten up. You will hear the evidence in the case; she was beaten up considerably.' Thereafter in chambers objection was made by accused to this part of the Commonwealth's opening statement as being prejudicial by showing 'commission of other offenses.' One of counsel replied, 'We take the position that Mr. Asbury could have gone much further than he did in the statement. He didn't state anything about Simon beating his wife up; that wasn't mentioned. He said she came to this house and was in bad condition. * * * We don't know he beat his wife up and we don't charge he did.' Upon further objection by counsel for accused to proof of the details of that altercation, one of counsel for the prosecution said, 'We are not going into the details, who was in the right in the trouble with his wife. But we want to show what brought it on and I think we are entitled to that. That is the only reason it was mentioned.' The court then overruled accused's objections.

Callie Bowman, a witness for the Commonwealth, was questioned in detail as to accused's conduct on the evening of September 27, 1956, and testified over accused's objection that he had come to her house searching for his wife with a flashlight and pistol, and asserted that he was going to 'kill her.' She further said that after accused left, Pauline Boggs did come to her home 'in pretty bad condition' and was secreted in her bedroom when accused came back later with flashlight and pistol, and again...