Sims v. Commonwealth

• Decision Date: 16 November 1922
• Citation: 115 S.E. 382
• Parties: SIMS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

115 S.E. 382

SIMS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

Rehearing Denied Jan. 24, 1923.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Botetourt County.

Houston Sims was convicted of murder in the second degree, and he brings error. Affirmed.

Benjamin Haden, of Fincastle, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

BURKS, J. Houston Sims was convicted of murder in the second degree, and sentenced to the penitentiary for a term of 20 years. The murder occurred in the public road immediately in front of a small store that was conducted by the accused. The road is a narrow country road and nearly entirely occupied by the roadway.

Peter Philpot, who was killed, and the accused and all of the eyewitnesses to the killing, in fact, practically all of the witnesses in the case, were negroes, and the differences between the witnesses as to what they observed at the time of the trial is such that it is not easy to state the facts exactly. There was testimony on behalf of the commonwealth of previous threats which Sims had made against the deceased, and Sims himself says that, during the watermelon season when he sent a message to Dorothy Philpot to accompany him to the watermelon patch, the deceased poked his head out of a window and told the messenger to tell Sims to go to hell. Sims, having overheard this, called out, "If you have got anything against me why don't you come out in the road and tell me yourself." He testified, however, at the trial, that the deceased had been to his house several times after that, and he always spoke every time they met, and there did not seem to be anything wrong with him, and he (Sims) knew there was not anything wrong with himself. His account of what took place at the time of the shooting, as given in connected form, is as follows:

"Yes, Jennie Hunt, she came, and we was all there laughing and talking, and when he came in that night, when Peter came in that night, just before he came in my brother had sent me my supper, and I had been to Roanoke that day and I had bought me some fish, and I was standing there eating, and Jennie asked me to give her a piece of fish, and I gave it to her, and then Lucy Jane asked Jennie to give her a piece and she gave it to her, and Dorothy was standing there too, and Peter Phil pot walked in and spoke, and we all spoke, and he says, 'Lucy Jane, when are you going home?' She says, 'I am going now just as soon as I finish eating this fish.' He says, 'Yes, and I am going to burn you up for being up here, ' and I was standing behind the counter and I never did quit eating; I stayed there, and he walked on outside, and when he got outside" he addressed grossly obscene language to her, which is unfit to print, which was a threat of violence to her as well as to-those whom he characterized as "the rest of these damned dirty sons of bitches that are laying up around here with you, " and "when he said that I come on out and reached down in the corner and got my gun, I had my gun in my right hand, and I said, 'Peter, don't use that kind of language in front of my place.' I says, T wouldn't use that kind of language in front of your place, ' and he says, 'I didn't call you a son of a bitch, but I did say I was going to burn her up (using the same obscene language) with some of the rest of you dirty sons of bitches, ' and he threw his hand to his hip pocket, and when he threw his hand to his hip pocket I shot."

After making this statement, in response to a leading question by his counsel, he said, "When he threw his hand to his hip pocket I was satisfied that he was going to shoot me and that is why I shot. I thought I was justified in trying to protect myself." In testifying more in detail as to what occurred at the time of the shooting, he says that when the deceased threw his hand on his pocket he understood him to say, "I am going to make you shoot that God damn shotgun." Some question had been asked him with reference to the time he had to look around while he was "out there in this fuss with Philpot, " to which he replied that he did not have plenty of time to look around there: and afterwards, in a further answer not directly responsive to a question propounded to him, he said:

"Now, when I was out there talking to Peter, I had no time to look around to see who was coming up the road or down the road, because I did not want to take any chance with my life any more than you would want to take chances with yours."

The court then propounded to him two questions, which with the answers thereto are as follows:

"Q. What did you bring the shotgun out there for? A. I brought it out there so if he had anything he wouldn't do anything to me.

"Q. You were not in any danger in the house were you? A. I came out there, I wanted to ask him to go away, and I wanted some protection while I was out there."

It is conceded that Lucy Jane Philpot, the wife of the deceased, and Dorothy Philpot, her daughter, and Jennie Hunt were also eyewitnesses to the shooting. Another witness introduced by the commonwealth, Fred P. Anderson, also claims to have been aneyewitness to the shooting, but this fact was controverted by the accused. Dorothy Philpot's account of what took place was that the deceased came into the store with his hands in his pockets and said to her mother, "Come on and go home, " that she replied, "Just as soon as I get through eating this fish, " and the deceased walked out of doors with his hands in his pockets, and said, "Come on and go home, " and that his wife replied, "I will as soon as I get through eating this fish, " to which the deceased responded. "1 am going to burn you up, you and some other of these sons of bitches, " and then that Sims ran out with his gun and said, "Don't use that language outside of my place;" to which the deceased responded, "I have not called your name. I was talking to Lucy Jane, " and he made the deceased take his hands out of his pockets, and when he took his hands out of his pockets the deceased said, "Houston, you got your gun, and if I had mine I'd make you shoot yours, and that, when the deceased said that, Sims struck him and the deceased struck him back and at that time Sims fired and the deceased fell. This witness makes no mention of any motion by the deceased to draw a gun from his hip pocket.

Lucy Jane Philpot, wife of the deceased, gave practically the same account of what took place as that given by Dorothy Philpot, except that she did not see the blows pass between the accused and the deceased mentioned by Dorothy; but she says that the language used by Philpot immediately before the shot was fired was, "I have not got no gun; if I had my gun I would make you shoot yours, " and that then the accused fired. Jennie Hunt who did not appear to be related to either the deceased or the accused, says that when Philpot came into the store he said "Good evening, " and all of them spoke to him, and he said, "Lucy Jane, come on and go home, " to which she replied, "All right, Peter, just as soon as I get through eating some fish, " and that he walked out of the store and after he got out he called, "Come on, Lucy Jane, and go home, " and she says, "I am coming home, Peter, as soon as I eat my fish." He replied, "Damn you, I am going to burn you up, you and some of the rest of these sons of bitches where you are up here with;" that the accused then came from behind the counter with a shotgun and said, "Peter, I would not curse before your store like that, " and Peter repeated substantially what he had said, and then Sims struck Philpot and Philpot struck Sims and Philpot threw his hand back to his hip pocket and said, "If I had my damn gun I would make you shoot your God damn shotgun, " and then Sims shot him. This witness further testified that when Philpot got out of the store he stood on the ground right in front of the door; that the accused did not have his gun up when he went out of the store, but had it in one hand by his side: and when asked if he had his gun drawn on the deceased at the time the blows were struck, she replied, "No; he did not have it drawn on him because he could not draw it on him when he was striking him with his fist;" and when asked if the gun went off before the accused had gotten it to his shoulder she replied, "No, sir; it did not go off before he got it to his shoulder." The witness also testified that the body of the deceased was allowed to lie where it fell from the time of the shooting about 7 o'clock in the evening until the next morning, and that when it was removed there was found under it a small pocket knife with a little white bone handle; that it had two blades and one of them had been broken, but the other was open, and that this blade was about "as long as your little finger." The testimony of the witness Fred Anderson will be referred to later.

The accused in his testimony makes no reference to any threats that had been made against him by Philpot, nor to the assault with his fists upon the deceased, testified to by other witnesses, nor to making Philpot take his hands out of his pocket. He was not interrogated on this subject, either by his own counsel or the attorney for the commonwealth.

There are 14 assignments of error, but the third, fifth, seventh, and tenth were abandoned at the hearing on the oral argument. The verdict of the jury is so plainly supported by the evidence that it is unnecessary to notice the first assignment of error that the verdict was contrary to the law and the evidence.

The second assignment of error is to the action of the trial court in refusing to continue the case from the special term which began on October 26, 1921, at which the accused was indicted, to the regular term of the court, December 1, 1921. This motion was made on October 26, 1921, and based on the ground, "that there was no opportunity for said counsel [for the accused] to investigate fully this said case, and...