# State v. Bragg > West Virginia Supreme Court · March 8, 1955 · 140 W. Va. 585 URL: https://www.frixlaw.com/law-library/cases/8180018 ## Case - **Full name:** State of West Virginia v. Malcolm Cameron Bragg - **Court:** West Virginia Supreme Court - **Decided:** March 8, 1955 - **Citations:** 140 W. Va. 585; 87 S.E.2d 689; 1955 W. Va. LEXIS 8 - **Precedential status:** Published - **Opinion:** Dissent by Brownhstg - **Judges:** Brownhstg, Browning, Haymond, Riley - **Cited by:** 68 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8180018 ## Opinion text Brownhstg, Judge, dissenting: It is my opinion that this defendant received a fair and impartial trial, and I would affirm the judgments of the Intermediate and Circuit Courts of Kanawha County. Therefore, I respectfully dissent from the Court’s decision. Code, 51-l-4a, provides that this Court may from time to time prescribe, adopt, promulgate and amend rules relating to the practice of law, and the last paragraph of that section says: “When and as the rules of the court herein authorized shall be prescribed, adopted, and promulgated, all laws and parts of laws that conflict therewith shall be and become of no further force or effect to the extent of such conflict.” The appellate procedure prescribed by Code, 56-6-37, was based upon the decision of this Court in Hinton Milling Co. v. New River Milling Co., 78 W. Va. 314 , 88 S. E. 1079 . The ruling in that case as to procedure has been, subsequent to the enactment of the last mentioned section, overruled by this Court. However, no rule contrary to that procedure has been promulgated and adopted by this Court, and the question of whether that specific act is necessary to supersede the statutory provision, and whether the adoption of such a *620 rule has more effect than a decision of this Court, overruling the Hinton Milling Co. case, upon the point in issue, has given me considerable trouble. In view of the great conflict upon this question in the decisions of this Court during the past sixty-two years, as evidenced by the cases cited in the majority opinion, and in Ritz v. Kingdon, 139 W. Va. 189 , 79 S. E. 2d. 123, this Court owes a duty to the Bench and Bar of this State to adopt a rule, in the manner provided by statute, by which all who are affected may be guided in the future as to this important appellate procedural question. However, it is my opinion that the question of whether the evidence, the objection thereto and the exception, regarding the carrying of an automatic pistol by the defendant, at and shortly before the homicide is properly here is inconsequential. It was not reversible error (1) to require the defendant to answer the questions propounded to him relative to whether he had a license to carry the pistol; (2) to give State’s Instruction No. 2; or (3) to permit the prosecuting attorney, over objection, to make the statement quoted in the majority opinion in his closing argument to the jury. These points will be discussed in that order. It is true that Article III, Section 5 of the West Virginia Constitution states: “* * * nor shall any person, in any criminal case, be compelled to be a witness against himself, * * The history of this protective guarantee in our Constitution and its development during the past eight centuries is interesting, and for a detailed discussion of it reference is made to the subject of “Privilege against Self-crimination”, Wigmore on Evidence, Volume VIII, Third Edition, Pages 276 to 530. This defendant had the privilege of refusing to make a statement of any kind to the police officers, subsequent to his arrest, at his preliminary hearing before a justice of the peace, before the grand jury, or at his trial before a petit jury, and it would have been reversible error for such refusal to make a statement or to testify to have been mentioned to the jury at the trial. However, waiving the constitutional privilege, he voluntarily became a witness in his own *621 behalf at the trial, and Code, 57-3-6, provides that: “In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused shall, with his consent (but not otherwise), be a competent witness on such trial or examination; and if he so voluntarily becomes a witness he shall, as to all matters relevant to the issue, be deemed to have waived his privilege of not giving evidence against himself and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by any one.” It becomes pertinent then to determine whether the matter about which the prosecuting attorney inquired, and the witness was required to answer, was “relevant to the issue”. Wharton’s Criminal Evidence, Vol; 1, Eleventh Edition, Section 346, states in part that: “The well-settled rule that evidence of collateral crimes cannot be introduced on the trial of a homicide charge is subject to an exception where the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial and the circumstances surrounding the collateral crime are essential to prove or to explain the crime charged. * * *” This case may be clearly distinguished from State v. Foley, 128 W. Va. 166 , 35 S. E. 2d. 854. In my opinion, the first syllabus point of that case is too broad, although it may have been applicable to the facts in the Foley case. On the day prior to the commission of the homicide by Foley, he had been violently assaulted by the son of the deceased, and the evidence showed that the deceased encouraged the assault and made threats against Foley. On the following day, returning lawfully to the place where the original assault had occurred, he carried a revolver in the pocket of his overcoat. Another altercation developed between Foley, the deceased and others, and Foley shot and killed the deceased. Under the law of this State,, Foley had a right to arm himself under the circumstances, even though he had no license to carry a revolver, and, therefore, he was probably prejudiced by requiring him *622 to state that he did not have a license to carry the weapon when the court did not further instruct the jury that having been threatened, he had a right to arm himself, even though he had no State license to carry a revolver. In the Foley case, the sole defense interposed was that of self-defense. There was no such defense in this case. One of counsel for the defendant in his closing argument emphasized that fact by stating: “* * * You cannot shoot a man simply because he slaps you in the face. I could not stand before a jury and argue such a thing as that. It would be foolhardy because it is not the truth. It does not make common sense. We are not pleading self-defense in this case. * * *” The evidence shows that: the defendant purchased the pistol used in killing the deceased about fourteen or fifteen hours before the homicide occurred; at the same time he purchased a box of ammunition for the pistol; on the afternoon following the purchase of the revolver, he met the deceased, a taxicab driver, in a tavern in the City of Logan, and sat for a time with him and two young women drinking beer, at which time and place the deceased placed upon the table at which they were sitting, five twenty dollar bills, which the witness, Macie Welch, says were plainly visible to the defendant, although the latter denied having seen the money; and, although the defendant had planned to travel by bus from Logan to Charleston, the fare for such transportation being approximately three dollars, he changed his mind, and employed the deceased to drive him to that place, the fare for a taxicab journey being twenty dollars, although defendant says deceased agreed to take him for thirteen dollars. Macie Welch further testified: Q: “What did you talk about?”; A: “He was standing at the bar and he ordered a 7-Up and it was about five minutes to 8:00 o’clock. I said, ‘Malcolm, your bus leaves at 8:00 o’clock.’”; Q: “To where?”; A: “To Charleston.”; Q: “Why did you say that to him?”; A: “He was supposed to catch that bus.”; Q: “What did he say?”; A: “He said, ‘Well, I don’t know, I might get a taxi.’ ” *623 While defendant states that the deceased slapped him in an argument about the amount of the cab fare, he does not deny that at an isolated place between Logan and Charleston, he shot and killed the deceased with the pistol he had purchased the evening before, robbed the body of the deceased and took the money that was in his moneychanger, rolled the body over an embankment, used the identification papers, which deceased had in his billfold, to enlist in the Army in New York City, under the name of the deceased, and secured thereby the additional sum of $288.00, to which deceased would have been entitled as re-enlistment pay. The State tried this case upon the theory that the homicide occurred during the-commission of robbery, and the defendant built his case around the theory that robbery was only an afterthought, the homicide being due to the altercation which he and the deceased had regarding the taxicab fare from Logan to Charleston. If error, was committed, it was in the admission of testimony of a separate offense, not connected with the alleged crime for which defendant was on trial, and for which he had not been theretofore convicted. The rule is well established that when one is on trial for a particular offense, proof of his guilt of other offenses, wholly unconnected with that for which he is upon trial must be excluded. However, there are exceptions to the rule that are as well established, and as has been said “founded on as much wisdom and justice as the rule itself.” This Court has held that Code, 57-3-6, requires an accused, who voluntarily becomes a witness in his own behalf, to state, in response to questions propounded on cross-examination, whether he has been convicted of other offenses, either felonies or misdemeanors, even when such offenses are unrelated to the charge being tried. State v. Friedman, 124 W. Va. 4 , 18 S. E. 2d. 653; State v. Mullenax, 124 W. Va. 243 , 20 S. E. 2d. 901; State v. Seckman, 124 W. Va. 740 , 22 S. E. 2d. 374; State v. McMillion, 127 W. Va. 197 , 32 S. E. 2d. 625; State v. Taylor, 130 W. Va. 74 , 42 S. E. 2d. 549. These cases are authority for the fact that Code, 57-3-6, *624 is not in conflict with Article III, Section 5 of the Constitution, if the evidence adduced is “relevant to the issue” being tried, even though they hold that the defendant is entitled to an instruction, if requested, that such evidence is to be considered by the jury only as it may affect the credibility of the defendant as a witness. Certainly this constitutional provision does not, on a charge of murder, prohibit the introduction of evidence of a collateral crime if the collateral crime precedes, or is contemporaneous with, or a part of, the charge on trial, and the circumstances surrounding the collateral crime are essential to prove the crime charged. Under the State’s theory, it was “relevant to the issue”, to adduce any evidence at its command to show that the defendant, only a day previous to the homicide, procured a pistol for the purpose of committing robbery with it. The only way that that could be shown was by proving facts from which the jury could make reasonable inferences as to defendant’s purpose in securing the gun. If the defendant had a State license to carry the weapon which he purchased, or because of threats of violence made against him, could have legally secured and carried upon his person a pistol such as was true in the Foley case, that was material to his defense, and the absence of such right was certainly material, and relevant, to the State’s case. Counsel for the defendant emphasized rather than minimized the criminal acts of the defendant from the time he was thirteen years of age, and both being able and experienced attorneys, perhaps such strategy was the best that could be used in their efforts to save the life of their client. One of them in his closing argument to the jury stated: “* * * He admitted things and told you about his life. Since he has been 13 years of age the ‘machine’ has been working on him. I do not know what caused the poor fellow’s mind to be in such a stage, whether it was his environment at home dr not, but certainly something caused the machine to move.” He further stated: “We have heard a lot of evidence here in this case *625 from all the witnesses and we let it go in.”; and “This case has been tried with but little objection on the part of the defendant. We wanted you to know the whole facts and to give you the whole story.” The other attorney defending the defendant in his closing argument said: “Of course Mr. Watts [the prosecuting attorney] will, in his able way, also tell you of the things Bragg did when he was a boy, and there is no denial of it. He will say to you that he had crooked dice and he stole money. He did it, and there is no denial of it. * * *” After the defendant’s background had been thus developed on direct examination, the prosecuting attorney was permitted to ask the defendant on cross-examination, without objection, about committing larceny as a juvenile; while on parole of having committed auto theft; of having been sentenced for a month and twenty-three days at hard labor by a martial court; of having received two sentences for felonies, apparently running concurrently, in the State of Virginia; of having violated parole by being drunk, as he admitted he was on the day before the homicide occurred; and of having sold and converted to his own use, certain furniture belonging to his father at a town in Ohio, two or three days before the homicide. With all of this evidence of the criminal background of the defendant placed before the jury, it is utterly inconceivable to assume that the defendant was prejudiced by being required to state that he did not have a State license to carry the pistol with which he killed the deceased. The jury knew quite well before they heard this testimony that this paroled convict from a Virginia penitentiary, with such an unsavory criminal record, could not have secured a license to carry a revolver in this State. Assuming the evidence to be inadmissible, it was harmless error to admit it. It has long been established by many decisions of this Court that where it clearly appears affirmatively that an error of the trial court could not affect the merits of the case, nor in any way be prejudicial to an accused, that this Court will not reverse the judgment of the trial court on the ground of such error. State v. *626 Justice, 135 W. Va. 852 , 65 S. E. 2d. 743; State v. Bragg, 105 W. Va. 36 , 141 S. E. 400 ; State v. Evans, 94 W. Va. 47 , 117 S. E. 885 ; State v. Murdock, 90 W. Va. 628 , 111 S. E. 632 ; State v. Boggs, 87 W. Va. 738 , 106 S. E. 47 . In State v. Corey, 114 W. Va. 118 , 171 S. E. 114 , this Court held in Pt. 3 of the Syllabus, quoting from State v. Rush, 108 W. Va. 254 , 150 S. E. 740 , that: “A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court, unless that error is prejudicial to the accused.” That was a case in which the defendant was convicted of murder in the first degree, the judgment affirmed in this Court, and the defendant was subsequently executed. In the body of the opinion, this Court said: “It would be very unusual for a trial of the duration of this one to be carried through without error. Perfect trials are rare, if they ever occur. Upholding convictions does not depend upon the perfection of jury trials. It is not the province of courts of review to dissect records of trials for the purpose of determining whether there was any departure from technically correct procedure. An appellate court does not reverse for error in a trial unless it is reasonably evident that a party to the trial was prejudiced by reason of such error. Upon review of a state case, the appellate court’s problem is to determine whether the convicted person has probably been preju-dicially affected by error in the trial. If there seems to have been no prejudice, the conviction must stand. Where, in a criminal case, under the whole evidence, the jury could not properly have returned any other verdict than that which it did return convicting the accused, errors not plainly prejudicial will be deemed inconsequential. * * *” The doctrine of harmless error is deeply embedded in our jurisprudence, and this Court will not be alerted to discover loopholes in order that the guilty may escape their just deserts. Gilland v. Commonwealth, 184 Va. 223 , 35 S. E. 2d. 130. I think State’s Instruction No. 2 meets the requirements of State v. Goins, 120 W. Va. 605 , 199 S. E. 873 , as well as *627 State v. Loveless, 139 W. Va. 454 , 80 S. E. 2d. 442. After defining murder in the first degree, as applied to the facts in this case, it told the jury that: “* * * it is your province to determine whether the defendant be punished by confinement in the penitentiary of this State for life or by execution, should you find him guilty of murder of the first degree, and further find that he be punished by confinement in the penitentiary you should find in your verdict. Should you find him guilty of murder in the first degree and find that he be punished by death your verdict then would be, ‘We, the jury find the defendant guilty of murder in the first degree as charged in the indictment.’ ” The language in this instruction certainly informed the jury that should they find the defendant guilty of murder in the first degree, they were to determine whether his punishment would be confinement in the penitentiary for life, or death. While the language of the instruction does not specifically follow that of the statute, or the suggested instruction contained in the opinion of State v. Loveless, supra, there can be no doubt that it imparted to the jury the requisite information required in such cases. Furthermore, the jury was advised by counsel of the effect of their finding, as to the punishment of the defendant if they returned a verdict of murder in the first degree. In the Loveless opinion, it was observed that arguments of counsel were not contained in the record, and the Court stated that even if they were, and if they did show that counsel had explained to the jury the effect of the different verdicts which they could have returned, that it would have been of no consequence, inasmuch as the jury “may disregard all that is said by counsel in argument, but they are not at liberty to disregard the law of the case as outlined to them in the court’s instructions.” Nevertheless, it may be observed in this case that in his closing argument, which is a part of the record, the prosecuting attorney told the jury that: “* * * If you think he is entitled to mercy and you find him guilty of murder in the first degree your verdict would say, ‘We, the jury, *628 find this man guilty of murder in the first degree and we further find that he be confined in the penitentiary.’ If you think he deserves the death penalty then your verdict would be, ‘We, the jury, find the defendant guilty of murder in the first degree.’ and say nothing more, then the court pronounces the maximum sentence on him.” It is not necessary to quote again the alleged improper remarks of the prosecuting attorney in his closing argument. They are contained in the majority opinion. However, the remarks of the prosecutor both before and immediately after the objection of the defendant, and the overruling of the objection by the court, clearly indicated that he was merely giving his opinion of what happened. The prosecutor, after the objection, stated: “I say that is my opinion, gentlemen of the jury. Gullett is not here to tell you what happened and you do not have to rely in this case on what Bragg tells you. You have as much right to draw your own conclusions as I have but I say that under all the facts and circumstances in this case it is my opinion that Bragg killed Gullett in order to take all the valuables he had off his person and to dispose of the body so that it would not be found * * The defendant’s version of the homicide was to the effect that while he and the deceased were seated in the front seat of the taxicab, deceased slapped defendant on the face, and that immediately thereafter defendant shot and killed deceased. The medical evidence shows that the bullet entered deceased’s right temple and made its exit through the left temple at a point directly opposite its entrance, and there was expert testimony to the effect that the powder burns on deceased’s right temple and in his brain were such that the shot was fired when the muzzle of the gun was in contact with the skin. It seems highly improbable, if not impossible, that such a wound could have been inflicted by the defendant upon the deceased if the latter was in the act of or had just completed striking the defendant a blow across the face, and was, most certainly, observing the defendant, if not facing him, at the time the homicide occurred, according to the ac *629 count of the defendant. The prosecuting attorney was only making a statement of reasonable inferences that could be drawn from the testimony, inferences that it was proper for the jury to draw, and certainly if the jury could do so, it was not improper for the prosecuting attorney to argue such inferences, when he emphasized that what he was saying was only his opinion. A judgment of conviction should not be reversed, even for improper remarks of counsel to a jury which do not clearly prejudice the accused. State v. Shores, 31 W. Va. 491 , 7 S. E. 413 ; State v. Shawn, 40 W. Va. 1 , 20 S. E. 873 ; State v. Allen, 45 W. Va. 65 , 30 S. E. 209 ; State v. Mooney and Friday, 49 W. Va. 712 , 39 S. E. 657 ; State v. Simon, 132 W. Va. 322 , 52 S. E. 2d. 725; State v. Painter, 135 W. Va. 106 , 63 S. E. 2d. 86. It is the general rule that counsel may in argument express opinions which are based upon evidence, and this is true as to a prosecuting attorney on a trial for homicide. Sims v. Commonwealth, 134 Va. 736 , 115 S. E. 382 ; 2 M. J., Argument and Conduct of Counsel, §16. This defendant received a fair and impartial trial by a jury of his peers, and their verdict has been approved by the Judge of the Intermediate Court of Kanawha County, and upon writ of error by the Judge of the Circuit Court of that county. Upon a verdict of murder in the first degree, it is within the province of the jury to fix the degree of punishment, and this jury determined from the evidence they heard that a merciless, mercenary murder had been committed, which was so brutal and heinous that no punishment, other than the maximum provided by the law of this State would fit the crime. In the absence of prejudicial error, no court has a right to disturb that finding, and I would not do so. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8180018. Public record. Not legal advice.