State v. Bowman

Decision Date14 December 1971
Docket NumberNo. 12968,12968
Citation155 W.Va. 562,184 S.E.2d 314
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Glen N. BOWMAN, Sr.

Syllabus by the Court

1. 'A verdict of guilty, returned by a jury in a criminal case, consistent with the only reasonable interpretation which can be placed upon the evidence and circumstances proven, will not be set aside by this Court.' Point 3, Syllabus, State v. Zink, 98 W.Va. 340 (128 S.E. 114).

2. An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.

3. 'The discretion vested in a trial court to determine whether a defendant in a criminal case has been prejudiced by statements of counsel for the State, during the trial, will not be interfered with by an appellate court unless it clearly appears that the discretion has been abused.' Point 10, Syllabus, State v. Bail, 140 W.Va. 680 (88 S.E.2d 634).

Rudolph DiTrapano, Robert G. Perry, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for defendant in error.

CARRIGAN, Judge:

This is an appeal by Glen N. Bowman, Sr., appellant, hereinafter referred to as defendant, from a final order of the Kanawha County Circuit Court entered October 28, 1969, refusing a writ of error and supersedeas to a final order of the Kanawha County Intermediate Court entered June 13, 1969, sentencing the defendant to confinement in the West Virginia Penitentiary for the rest of his natural life.

The evidence in this case discloses that defendant and Hart, the victim of this killing, occupied adjoining houses apparently in close proximity to each other. Neither defendant nor Hart had ever visited the other's home and had only exchanged greetings and casual conversation prior to the middle of June, 1968. Near daylight one morning in the middle of June, a dog fastened in the Hart yard was barking, and defendant, from his yard, threw pieces of dirt at the dog in, as he says, an attempt to stop the barking, at which time a male voice from the Hart residence made some remark concerning the treatment of the dog but said he would get someone down to take care of the dog. Shortly thereafter, a member of the Hart household brought the dog into the Hart house, and no other incident arose concerning the dog. Defendant claims he thought the voice was that of the victim, Hart, but testimony shows that the voice belonged to the victim's father.

No further incidents occurred between the Bowman and Hart families until September 18, 1968, some three months after the dog incident. On Wednesday, September 18, at about 2:30 or 3:00 p.m., defendant's wife observed the victim, Hart, digging dirt from between the Hart and Bowman houses. A conversation ensued between defendant's wife and Mr. and Mrs. Hart concerning the location of the property line between the two houses and whether Hart had been digging on the Bowman property. Apparently this conversation started in a friendly manner, since defendant's wife said Hart was laughing. Later defendant's wife again challenged Hart concerning the property line and the hole between the houses and she stated Hart's little boy had previously dug holes there which her husband had to fill. Defendant's wife then testified that Hart became angry and told her that what his little boy did was his business and 'he planned to get his brother up there that night to settle that with my husband' (meaning defendant). During all of this conversation to defendant was away from home. The testimony fails to show that either Hart or his brother appeared or had any conversation with either defendant or his wife on that Wednesday or at any later date, and nothing further occurred concerning this particular incident.

On Saturday, September 21, 1968, being some three days following the discussion between defendant's wife and Hart about the digging between the houses, a birthday party for the four-year-old Hart child was in progress in the Hart house. Some of the children were outdoors playing, and one of them came into the Hart home crying, whereupon Mrs. Hart went outdoors to discover what had occurred. Mrs. Hart saw her little son in the Bowman yard and ordered him to come home and to stay out of the Bowman yard. Defendant's wife, then being in her house, walked out onto her porch and complained to Mrs Hart about the manner in which she called her son home. The defendant then came out on his porch and engaged in the conversation between his wife and Mrs. Hart. The exact nature of this conversation is in conflict, but even adopting defendant's version, Mrs. Hart told them she would speak to her children as she pleased and said to both Bowmans, 'How would you like to go straight to Hell?' No threats were made by Mrs. Hart that she would have her husband take any action against defendant or his wife as a result of the above outlined dispute. The victim, Hart, not being present, took no part in this dispute.

About ten minutes after Mrs. Hart returned to her house and while she was upstairs in a bedroom attending her baby, her husband, the victim, came home. He was in a 'good humor' having just been awarded a financial prize at his work. He spent a short time greeting those in the house, and during this period Mrs. Hart told her husband about the incident with defendant and his wife and the children. Shortly thereafter, Hart went downstairs and Mrs. Hart continued to attend her baby.

The testimony of defendant and his wife, which must be considered as being given in a light favorable to defendant, shows that following the incident with Mrs. Hart, defendant and his wife went into their living room. Defendant claims that, because of the prior incident on September 18 between Hart and defendant's wife and the September 21 incident between the Bowmans and Mrs. Hart, he was fearful of what Hart might do. Defendant then went into a bedroom, got a pistol and returned to the living room, sitting down by the front door which opened onto the front porch. Defendant's wife was also present in this room. The front screen door was closed but not locked, and the inside front door was open. Defendant and his wife testified that they heard rapid or running steps coming up their front outside stairs, that they did not know who was coming, and that they observed the victim crossing their front porch moving very rapidly and reaching out in the direction of the front door, it not being clear whether the victim touched the door or its knob or with which hand he reached for the door. The victim did not enter defendant's house. The defendant and his wife testified that the victim appeared bent over and in a rage. It is undisputed that the victim was not armed in any manner. No words of any kind were spoken by defendant, his wife or by the victim at this time. On seeing the victim, defendant fired two shots through the screen door. The first shot inflicted a...

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