Boykins v. Com.

• Decision Date: 01 December 1969
• Citation: 210 Va. 309,170 S.E.2d 771
• Court: Virginia Supreme Court
• Parties: Ralph N. BOYKINS v. COMMONWEALTH of Virginia.

Page 771

170 S.E.2d 771

210 Va. 309

Ralph N. BOYKINS v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Dec. 1, 1969.

Reid M. Spencer, Norfolk (Wolcott, Redfern, Spencer & Rivers, Norfolk, on the brief), for plaintiff in error.

W. Luke Witt, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Reno S. Harp, III, Asst. Atty. Gen., on the brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

I'ANSON, Justice.

Ralph N. Boykins, defendant, was tried by a jury on an indictment charging him with the murder of Junius P. Fulton, Jr. He was found guilty of voluntary manslaughter and his punishment fixed at five years in the State penitentiary. Sentence was pronounced in accordance with the jury's verdict, and the defendant is here on a writ of error to the judgment.

Defendant contends that the trial court erred (1) in holding that the evidence was sufficient to support his conviction; (2) in permitting evidence of deceased's character; (3) in granting instruction No. 4; and (4) in not restraining the Commonwealth's attorney from arguing facts not in evidence.

The evidence shows that the defendant and Fulton were partners in a used-car business operating under the name of Auto City, Inc., located on Granby Street between 24th and 25th Streets in the city of Norfolk, Virginia. Business had not been going well, and defendant had expressed his belief that his partner, Fulton, was stealing from the company. He stated to several employees that he would pay $1000 for someone to kill Fulton, but no one had taken him seriously enough to mention this to Fulton. Sometime thereafter, on October 18, 1967, Fulton was found shot to death in his office.

At 7:30 in the morning of October 18th, W. W. Strickland noticed as he passed Auto City that a burgundy Ford was parked on Granby Street near the company office. At 7:40 a.m., R. Triplett, who worked nearby, noticed a 1967 burgundy Ford with a dealer's license tag parked partly across the sidewalk close to the office. He also recalled hearing two loud reports as he approached Auto City, which he assumed to be the backfire of a passing bus. He remarked that he had never before seen a car parked by the office that early in the morning. When Triplett walked past Auto City again between 8:15 and 8:20 a.m. he noticed that the burgundy Ford he had seen earlier was gone. Between 8:15 and 8:30 a.m., Leon Smith, an employee of Auto City, who was near the intersection of Church and 25th Streets, which is about three blocks from Auto City, recognized the defendant driving a 1967 burgundy Ford with dealer's license plate No. UD 31576, headed east, away from his place of business. The car was traveling at approximately 35 miles per hour, ten miles over the speed limit, and it did not halt for a stop sign at the intersection.

At 8:40 a.m., Nat Turner, another employee of Auto City, unlocked the building and discovered Fulton dead in his office; his body was still warm. His pistol, which he always carried with him, was on the floor and it had not been fired. There was no evidence of a forced break-in.

Dr. Karnitschnig, deputy chief State medical examiner, testified that Fulton's death was caused by two gunshot wounds in his head. He identified the bullets as .32 caliber lead, and said they were fired at close range, probably 6 to 12 inches away from decedent's head. The weapon was never found, nor was it shown whether a pistol or rifle was used.

Police Sergeant Hurst testified that at 11:30 on the morning of the offense he arrived at Lake Smith, about twenty minutes away by car from Auto City, where a 1967 maroon Ford had been found earlier. When the car was later pulled out of the lake a clip-on dealer's license tag bearing the number UD 31576 was found under some mud in the trunk of the car. Hurst further said that he searched defendant's home in Virginia Beach and found five .32 caliber cartridges, four steel-jacketed and one lead. He also found two guns, but neither was of .32 caliber.

The defendant neither testified nor called any witnesses in his behalf.

Defendant contends that the Commonwealth's evidence is wholly circumstantial and it is insufficient to support his conviction.

When the sufficiency of evidence is challenged after a conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment 'unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.' Code § 8--491; Allison v. Commonwealth, 207 Va. 810, 811, 153 S.E.2d 201, 203 (1967); Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954).

We have many times dealt with the character and sufficiency of circumstantial evidence to support a conviction. In the recent case of Braxton v. Commonwealth, 209 Va. 750, 752, 167 S.E.2d 120, 121, 122 (1969), we quoted from La Prade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950), as follows:

"(I)f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Yet what inferences are to be drawn from proved facts is within the province of the jury and not the court so long as the inferences are reasonable and justified."

The burden is upon the Commonwealth to prove beyond a reasonable doubt that motive, time, place, means and conduct concur in pointing out the accused as the perpetrator of the crime. Dean v. Commonwealth, 73 Va. (32 Gratt.) 912, 926 (1897); Abdell v. Commonwealth, 173 Va. 458,...