State v. J. E. Boggs.

• Citation: 87 W.Va. 738
• Decision Date: 22 February 1921
• Docket Number: 4273. [a1]
• Court: West Virginia Supreme Court
• Parties: State v. J. E. Boggs.

87 W.Va. 738

State

v.J. E. Boggs.

4273. [a1]

Supreme Court of Appeals of West Virginia.

Submitted February 15, 1921.

Decided February 22, 1921.

1. Arrest Officer Not Justified in Shooting Suspected Misdedemeanant on Refusal to Stop When Ordered.

An officer seeking to arrest a misdemeanant is not justified in shooting or wounding a traveler on the highway whom he has reason to believe is the misdemeanant, and whom he has ordered to halt for the purpose of ascertaining if he is the person for whom he is seeking, where the traveler simply refuses to obey the command, and pursues his journey hurriedly and in such manner as would lead the officer to believe he is the misdemeanant, indicating an escape, (p. 743).

2. Criminal Law Error in Ruling on Evidence Not Ground for Reversal Where Verdict Would Not Have Been Changed.

Error in the admission or rejection of evidence will not be sufficient ground for reversal when it appears upon the whole case, including the admissions of the defendant, that the verdict would not have been changed, and ought to be affirmed, (p. 746).

3. Same Statute Authorising Special Verdicts Inapplicable to Jury Trial in Criminal Cases.

Sec. 5, chap. 131 of the Code, authorizing the circuit court to submit interrogatories to the jury upon the trial of any issue for the purpose of having it render separate verdicts upon any one or more of the issues, does not apply to jury trials in criminal cases, (p. 748).

Error to Circuit Court, Harrison County. j. E. Boggs was convicted of assault with intent to kill, and he brings error.

Affirmed,

Law & McCue, for plaintiff in error.

E. T. England, Attorney General, R. A. Blessing, Assistant Attorney General, and Steptoe & Johnson, for the State.

Lively, Judge:

This writ of error brings up for review the judgment of the Criminal Court of Harrison County rendered on the 18th of November, 1920, which sentenced J. E. Boggs to confinement in the penitentiary for two years on a verdict finding him guilty of an unlawful assault with intent to maim, disfigure, disable and kill Clyde Coffindaffer.

A justice of the peace had issued a warrant for the apprehension of Joe Costa for a violation of the prohibition law and had appointed John Siers as a special constable to make the arrest. Siers had obtained information that Costa was expected to arrive at Clarksburg in the nighttime in an automobile with a load of spirituous liquors, and that he would come from Shinnston by the Maulsby bridge across the West Fork river.

He had received information that Costa was a "bad" man and would likely resist arrest and that there would be danger in making the arrest. He secured the assistance of Boggs, the defendant, and George Darnell, both of whom were members of the Department of Public Safety and stationed at that time in the vicinity of Clarksburg, where there was an industrial disturbance, informing them of the character of the person to be arrested and the possible danger attending the arrest. This special constable and these two members of the Department of Public Safety went in an automobile to the Maulsby bridge, arriving there about 9 o'clock on the evening of October 5, 1920, and stationed themselves at the end of the bridge nearest to Clarksburg for the purpose of apjDrehencling Costa should be pass that way. The bridge was a covered bridge and about 20 feet wddc and the record does not disclose its length. They had. detained, temporarily, several persons until about the hour of 10:30 P. M., when an automobile coming from the direction of Shinnston entered the bridge. In this automobile wrere Dr. Clyde Coffindaffer, F. Byrl Wyer, and wife, and John. Ashcraft, who was driving the car. Clyde Coffindaffer was a physician, well known in that community, practicing his profession at Clarksburg and was then taking Mrs. Wyer, who was suffering from peritonitis, to a hospital at Clarksburg. She was sitting on the rear seat with her husband on her left side. The doctor was sitting in the right front seat by the side of Ashcraft and had his back toward the right door of the car and was assisting in steadying Mrs. Wyer with his left hand. This car was a four seated Chandler chummy roadster and w7as somewhat similar to the car which Costa was supposed to be using. It appears that Siers, the special constable, was standing on the left hand side of the bridge a short distance inside thereof and to the left of this car as it approached. He had.an electric flashlight in one hand, which he waved at the approaching car, and two of the witnesses in the car stated that he had a pistol in the other hand. Siers denied that he had a pistol. Boggs was on the right hand side of the car as it approached and inside of the covered bridge a short distance and just in front of another car which was standing there, which had been detained and which belonged to a Mr. Kaikes. Darnell was also standing on the same side of the bridge and a short distance from the other end of the last named car. As the doctor's car approached these men it slowed down, but as Siers and Boggs approached it, seemingly in a threatening manner and without giving information of their design, the chauffeur quickly "put on more gas" and the speed of the car was quickly accelerated. Shooting then began and there is considerable conflict as to whether the first shot was fired from the left hand side of the car or from the other side. Siers states that Boggs was on the same side of the bridge with himself. Boggs stated that he was on the opposite side and all of the other witnesses place him on the opposite side from Siers. All of the occupants of the car state that the first shot penetrated the rear left hand tire of the car, releasing the air therefrom and almost immediately after the first shot the man standing on the opposite side of the car and four or five feet from the car presented his pistol at Dr. Cofiindaffer and shot him in the back, tiie doctor exclaiming, "Oh I am shot." The car was in rapid motion and after it left the bridge some more shots were fired. The wounded man was immediateiy taken to the hospital at Clarksburg where he received medical attention. The testimony of Boggs does not coincide with that of the occupants of the car respecting the actual shooting. He corroborates the Stat e s evidence as to the place he was standing but testified that after he approached the car when it slowed down and after it had started to go faster, he commanded them to halt and that the car had passed him and had almost reached Darnell, who was standing several feet from him, when Darnell also called on the car to halt and he, Boggs, then began shooting, not at the occupants of the car, but at the tires, and for the sole purpose of stopping the car. He did not know that anyone was shot that night and had no idea that anyone had been wounded until the next morning when he.heard from Siers or saw it in the newspapers that Dr. Coffidaffer had been severely wounded. He stated both before and on the trial that all of the shots which were fired that night Avere fired by him with a 45 Colts army revolver. Immediately upon, learning that Dr. Coffindaffer had been wounded

he came to Clarksburg, admitted the shooting to the sheriff and others, and went to the doctor's sick room where he admitted the shooting, but stated that he had no intention whatever of hurting anyone and that his shots were in good faith at the tires of the automobile and for the purpose of stopping it in order to make the arrest of Costa.

Boggs, Siers and Darnell were indicted for malicious wounding and Boggs elected to be tried separately. On the evidence, a summary only of which is above given, the jury found the defendant not-guilty of malicious wounding but of unlawful wounding with the intent to main, disfigure, etc. Five instructions were offered by the State, all of which were objected to by the defense, but all were given except instruction No. 3. Instruction No. 1 was to (the effect that an officer had no right to kill or attempt to kill in endeavoring to make an arrest for a misdemeanor and unless the jury believed from the evidence that these officers were attempting to arrest Coffindaffer for the committing of a felony or in the act of committing a felony that the defendant was not authorized to shoot with intent to kill for the purpose of arresting Coffindaffer. This instruction simply lays down the law of arrest and it is to the effect that defendant was not justified in shooting Coffindaffer with intent to maim etc. unless the jury believed that Coffindaffer was doing an act which would justify such shooting. We can see no good objection to this instruction. It is apparent that defendant and the other officers were attempting to make the arrest of Joe Costa, the person for whom they had the warrant, and when the car began to go faster at the command to halt they erroneously concluded that Dr. Coffindaffer was the person for whom they had the warrant or that he was in that car; and the instruction simply propounded the law applicable to that situation, to the effect that an officer is not justified in shooting with intent to kill the person for whom he has a warrant unless that person has committed or is in the act of committing a felony; and in no case is an officer justified in shooting with like intent in making an arrest for a misdemeanor. The instruction is further objected to because there was no evidence of any attempt to kill anyone on that occasion; that the shooting was accidental. But the evidence of all the witnesses who were in the car was positive that the pis.tol which did the wounding was fired at Dr. Coffindaffer's back when only a few feet from him. The question whether it was accidental or intentional is one for the jury. A man is presumed to intend that which he does or which is the immediate or necessary consequence of his act. If the jury believed beyond a reasonable doubt that the shot was fired with the intent to kill or...