State v. Boggs
| Decision Date | 03 December 1946 |
| Docket Number | 9845. |
| Citation | 42 S.E.2d 1,129 W.Va. 603 |
| Parties | STATE v. BOGGS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In a trial for murder, a defendant, by introducing his own evidence, waives the error, if any, in a court's ruling in refusing to sustain defendant's motion, made at the conclusion of the State's case, to direct a verdict to acquit defendant of murder of the first and second degrees.
2. In a trial for murder, based upon a killing produced by the use of a deadly weapon, it is error for the trial court to instruct the jury that 'If a killing is done though without legal provocation, upon a sudden falling out, but with an instrument not likely to produce death, the jury may infer a want of malice, so that it would be regarded as a voluntary manslaughter; but, if it was done with a deadly weapon it would be murder; the weapon used being controlling as to the intent and malicious motive' the first part of the instruction dealing, as it does, with a death produced 'with an instrument not likely to produce death', has no application to a case involving the taking of life with the use of a deadly weapon, and though not prejudicial, should not be given. But the giving of the last part of the instruction to the effect that if such killing 'was done with a deadly weapon, it would be murder; the weapon used being controlling as to the intent and malicious motive', constitutes prejudicial error.
3. An instruction in a trial for murder to the effect that malice might be inferred without reference to facts and circumstances calculated to rebut such inference of malice is misleading.
4. The court's refusal to incorporate in its charge in a trial for murder an instruction bearing on the presumption of innocence in defendant's favor constitutes prejudicial error.
5. In a trial for murder, it is not error for the trial court to refuse to incorporate in its charge to the jury an instruction which would have told the jury that it had a right to take into consideration the relative size and strength of deceased and defendant, where the record discloses that both parties were armed at the time of the fatal shooting and did not engage in mutual physical combat.
Wysong & Wysong, of Webster Springs, and G. C. Belknap, of Sutton, for plaintiff in error.
Ira J. Partlow, Atty. Gen., Ralph M. Hiner, Asst. Atty. Gen., and Eston B. Stephenson, Sp. Asst. Atty. Gen., for defendant in error.
Upon conviction of murder of the second degree the Circuit Court of Webster County sentenced Aubrey Boggs defendant, to confinement in the penitentiary for five to eighteen years. To the judgment of sentence defendant prosecutes this writ of error.
Shortly after midnight of September 30 and October 1, 1945, the decedent, Thurmond Farley, eighteen years of age, was shot and killed by his brother-in-law, Aubrey Boggs, in the home of defendant's father, Edgar Boggs, located on State Route 20 about two miles south of Cowen in Webster County.
The Boggs home is square in shape and divided into seven rooms. Its only entrance is from the front, the door opening into a center room designated in the record as the 'sitting room'. There is a bedroom to the left of the sitting room, spoken of as the 'large bedroom', and another to the right, each being connected with the sitting room by a doorway. Directly to the rear of the sitting room and connected by a doorway, there is a dining room, measuring ten feet and seven inches by twelve feet. To the left of the dining room a doorway leads into a small bedroom, usually occupied by defendant; and on the opposite side of the dining room an entrance leads into the kitchen. There is a third bedroom on the left of the house between the large bedroom and defendant's bedroom, the only entrance to which opens into the large bedroom. The entrance to this middle bedroom and the front entrance leading into the sitting room have hung doors, and all other entrances between the rooms are without hung doors. At the time of the homicide, curtains were hung over the entrance between the sitting room and the large bedroom and over the one between the dining room and defendant's bedroom.
The forgoing room arrangement was gleaned from rather sketchy descriptions testified to by Sheriff H. F. Bickel and Corporal G. F. Parsons, State Department of Public Safety both State witnesses. The jury, however, was not so limited, having had the advantage of a 'view' of the premises.
The State's case in chief, with exception of what the autopsy revealed, is based primarily on what the defendant told the officers on their arrival. Constable McCartney, the first officer to appear on the scene, testified that defendant 'just said he had killed him [Farley]', and that immediately before or after that statement, witness could not remember which, defendant handed him two guns. Sheriff Bickel and Corporal Parsons arrived about 3 o'clock in the morning. The sheriff, in answer to the question, 'Will you tell the jury what he [defendant] told you?' stated: 'He said he did it in self-defense' and that decedent 'came into the kitchen to light a cigarette, and that Nora Lee Miller got his [defendant's] cigarette--he was in the bedroom in bed--and went out to light Farley's cigarette off of his, and that they got in some kind of scuffle there and he saw the gun and Mr. Farley started toward him with the gun and he shot him.' On cross-examination Corporal Parsons in answer to the question, 'Now, all that you learned there was, when you talked to the defendant, you were advised by him that he did it in self defense?' stated, 'Yes, sir.' On direct examination, when questioned regarding the place where defendant stated he stood when he fired the fatal shot, the corporal answered, 'He told me that he shot Farley as he came out of the kitchen,' and he further testified that defendant did not show witness where he stood.
The officers testified that when they arrived at the scene of the shooting, they found decedent's body lying on its back, with the head opposite the doorway to defendant's bedroom and the feet pointing toward the doorway between the sitting room and dining room. A neighbor, Ira Goff, another witness for the State, who arrived at the Boggs home shortly after the homicide stated he found decedent's body lying on the floor 'by the side of the dining room table.'
Dr. J. M. Cofer, also a State witness, and the physician who performed the autopsy on decedent's body, testified that the bullet entered 'in the right side of the breast about an inch and a half from the breastbone and between the fifth and sixth ribs'; and was found 'to the left of the spinal column', in the inner space between 'the twelfth dorsal and first lumbar vertebra.' He testified that the bullet was lodged about fifteen inches from the place where it entered decedent's body and took 'a downward-backwoard course.'
Farley was a large man, about six feet tall, and weighing about one hundred seventy-five pounds. There is evidence that when under the influence of intoxicating liquor, he was quarrelsome and dangerous. He had been discharged from the Army during the early part of September, 1945. In December, 1942, just prior to his entry into the armed services, he had married Ester Boggs, defendant's sister, and after his discharge from the Army, it is apparent that he and his wife had been having marital difficulties. On this last furlough prior to his discharge from the Army, and shortly after midnight on July 28, 1945, Farley, while in a drunken state, and seemingly very angry and threatening, entered the living quarters of Murray Sigman, his brother-in-law, in Cowen, and kicked the latch from the door to Mrs. Sigman's room, apparently looking for his wife. At that time defendant was rooming with the Sigmans.
On the night of the homicide defendant closed his father's restaurant about 8 o'clock, carried the money belonging to the business and a pistol from the restaurant to the residence, and placed them under a pillow in his bedroom. Ester Farley and her small child were occupying the middle bedroom in the Boggs home, and defendant's father was asleep in the bedroom to the right of the living room. At approximately 8:30 in the evening, defendant and his fiancee, Nora Lee Miller, were sitting on the davenport in the sitting room, when they saw Farley enter the sitting room through the front door and go into the large bedroom. According to Nora Lee Miller, Farley 'looked kind of mad-like when he went through' the sitting room. Ester Farley testified that he kicked the lock from the door to the room occupied by her and her child 'and come in', and an argument then ensued between them. This witness testified further that defendant was 'mad and drunk--right crazy', and told witness that he was going 'to get a woman [at Bolair, a nearby community] and sleep with her and he might be back and might not'. It seems that after the argument with his wife, defendant left the Boggs home and shortly thereafter appeared at the home of James Boggs and his wife, Virginia Boggs, who was Farley's sister. There he persuaded James Boggs to accompany him to Bolair. About 11.30 James Boggs and Farley, both in a drunken condition, returned to the James Boggs house, where Boggs went to bed and fell asleep. Before leaving the house and while pacing the floor Farley told his sister Virginia,
About midnight Farley again appeared at the Edgar Boggs residence. Nora Miller had just gone into the large bedroom, and defendant, as he was crossing the dining room from the kitchen...
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