Opinion
42878 Record No. 8116.
April 23, 1973
Present, All the Justices.
Murder — Self-Defense — Evidence — Other Violent Acts of Deceased.
Profferred testimony of homosexual advances of deceased on other occasions failed to disclose such violent acts as to make evidence admissible since deceased did not persist when his advances were resisted.
Error to a judgment of the Circuit Court of Accomack County. Hon. N. Westcott Jacob, judge presiding.
Affirmed.
Jon C. Poulson, for plaintiff in error.
Gilbert W. Haith, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
Edward Benjamin Short, III (defendant) was convicted of second degree murder by a jury which fixed his punishment at ten years in the state penitentiary.
The defendant admitted killing the deceased. He testified that he did so in self-defense while resisting a violent homosexual attack which the deceased made upon him.
The sole question here is whether the trial court erred in refusing to admit the evidence of "Buddy" Williams, a 17-year-old boy, that the deceased had made homosexual advances to him on several occasions shortly before the homicide occurred.
The defendant argues that the proffered testimony was admissible under Randolph v. Commonwealth Va. 256, 264-65, 56 S.E.2d 226, 230 (1949), where we held that other specific violent acts by the deceased, even though unknown to the accused, may be shown when there is other evidence of self-defense.
Williams testified that the deceased "started rubbing my leg" and "tried to go into my pants." He also testified that the deceased took Williams' hand, placed it on the deceased's penis and "wanted me to play with him." When Williams resisted these advances, the deceased did not persist in his course of conduct.
We agree with the trial court that this proffered testimony fails to disclose such violent and turbulent acts as to make the evidence admissible under the rule laid down in Randolph. Affirmed.