State v. . BurneyState v. . Burney
Thе defendant, Dave Burney, was indicted for the murder of Mordie Kinsey on 25 August, 1938, and entered a plea of “not guilty.” The jury rendered verdict, “That the defendant is guilty of murder in the first degree.” The court below rendered judgment on the verdict, “Shall cause the said prisoner, Dave Burney, to inhale a sufficient quantity of lethal gas to cause the death of the said prisoner.”
The evidence was to the effect that Dave Burney was a tenant on the farm of Clifford Harris in Jones County. The defendant had in his home his wife and the deceased Mordie Kinsey, her daughter, Orphie Kinsey, Lula May Hall, Cricket Hobbs, and including grown persons and children about twenty in all. It was in evidence that there was bad feeling between defendant and Clyde Morgan, on account of Morgan‘s attention to Lula May Hall and Orphie Kinsey, daughter of Mordie Kinsey, all of whom were living with and working for defendant. It was in evidence that on the day of the killing, 25 August, 1938, on his way from Kinston in the evening, the defendant had purchased some shells with No. 4 shot for a gun which he owned. On reaching home he had Clyde Morgan take the gun down to the tobacco barn on the place, some quarter of a mile away. Later, about 8:00 or 8:30 o‘clock the same night, he had Orphie Kinsey and her mother to go to the barn. There he had a fight with Orphie and tore some of her clothes off and she fled. He later shot her mother, Mordie Kinsey, near the house.
The following witnesses for the State testified, in part:
George A. Moore: “And we sat on the porch and we heard some things, and we said. Soon after he came back from the tobacco barns he (defendant) and whoever was with him went on down to his home again, and I heard him cursing, and he said to someone, “G — damn
Orphie Kinsey: “I am 21 years old and live with Uncle Dave Burney; my mother lived there also. I was eight years old when we moved there, was living there at the same time with my mother and his niece and three of we girls. One of them wаs his niece‘s girls, and two of them were mother‘s girls. To tell the truth about it, I really don‘t know whether mother had any children by him while she was staying there, and she and he didn‘t sleep together. Yes, he had intercourse with me one time. . . . That night he came back from Kinston, and he told me and her (meaning her mother) to come, that he wanted to talk with us some, and me and her started with him. He didn‘t say where. He had come from Kinston at 7:00 o‘clock Thursday night, and we started with him at the house, and he got half way from the house to the tobacco barn, and he said, `Orphie, you and your mother are sons of bitches, aren‘t you?’ and I said, `No, we ain‘t,’ and he said, `You is,’ and she turned around then and started back to the house or went back to the house. I don‘t know what she went back for, and I went on with him, аnd we got to the tobacco barn door, and me and him started in to wrestling, and he throwed me down and beat me in the face. He beat me with his fist, and then I got loose from him and he tore my clothes. . . . I run from there to the corn field but he didn‘t run after me. . . . She (a neighbor) told me to go to Uncle Frank Greene‘s, so I went there. I reckon that was a mile and a half from where we lived. . . . Since I talked to you yesterday, Dave Burney has seen me. He saw me today, right here and talked to me, but he didn‘t say anything, only asked me how the children were getting along and where I was living and everything. He was with the sheriff and told me to come on around to the jail. Q. And that‘s the reason you are testifying like that? Ans.: No, sir, he didn‘t ask me anything about this. He just asked me how I was getting along and how were the сhildren. (First objection.) (Defendant objects to the question and answer; overruled, defendant excepted.) Q. Who else was there? Ans.: Cricket Hobbs. Q. Cricket is another one of his women living there? (Second objection.) (Defendant objects; overruled, defendant excepted.) Ans.: She is a girl that lives there. He raised her and she
C. F. Brooks: “I live close by Dave Burney. I live on the same farm. I heard cursing. He was doing the cursing. He was cursing the woman, told her she had told a damn lie. That woman that he shot. And he said, `I am going to kill you.’ And about that time the gun fired, I heard sоme fussing down there. Something like three-quarters of an hour. Dave Burney was doing the cursing then. He was cursing Orphie. I can‘t tell you what he was saying down there. He was using vulgar language. I did not go there that night. I went the next morning. I found the dress lying in the tobacco barn torn, and saw a dress with some blood on it. . . . Practically a whole dress. Torn practically all to pieces and there was buttons lying around all about all on the path. And I picked them up and gave them to the sheriff. Two pieces of underwear. . . . I heard some cursing; it was at Dave‘s house or right around his house, about the porch, somewhere. He was cursing people, saying that he was going to kill people about there, and that there were two or three more he was going to get, and then hе was going to die and be satisfied and go to hell.”
J. P. Taylor: “I saw the shot that came out of this woman‘s body; they were No. 4‘s. I got some of the wadding, but I didn‘t get the shot. That was taken from the wound in the hospital on Friday. I saw the leg that was all swollen up. It was mangled and there was a hole about an inch and a half in diameter. The leg was almost cut in two.”
Leo Kinsey: “I was not there when mamma was shot. He said, `Mordie, you are nearly dead, and G — damn you, I am going to finally kill you.’ He was talking to mamma then. At that time I was in the kitchen. He hit my mamma with a stool chair and a rocking chair.
Dr. R. G. Tyndall: “I am a practicing physician and surgeon in Kinston. I remember when this woman, Mordie Kinsey, was carried to the hospital. I don‘t know the date, but I remember very well the case. Sometime in August. . . . Her right leg from her knee to her shoe-top on the back, from the calf of her leg, it was all torn wide open, and I judge it was about three-quarters — were peppered from her knee to her ankle with about fifteen or twenty on the other leg at about the same level. They had the leg all wrapped up in her clothing and it was, of course, all saturated with blood. After the nurse helped me to clean out the wound and pull out the gun wadding I gave her some stimulant for her heart hoping that we could do something else about it. Next day we gave her some blood, and her leg from the knee down became cold from lack of circulation. And Dr. Parrot and I consulted, and we decided the leg would have to come off, but not in that condition. And we were hoping for some improvement in her condition, but she gradually got worse until she died. I can‘t say for certain, but it was three or four days before she died. I have an opinion satisfactory to myself as to the cause of her death. It was shock and hemorrhage from the wound in her leg. She is dead.”
Sheriff J. W. Creagh: “This matter was brought to my attention on Friday, the 26th of August. The day after the shоoting. I went to Dave Burney‘s house to make some inquiries, and arrested him and brought him to jail, and then went back up there and found that the woman was in Kinston in the hospital. I then went to Kinston and attempted to question her. Dave Burney made a statement to me, and he made that statement freely and voluntarily without any reward or hope of reward or any threats. . . . That was in my car and Dave was under arrest, and we were on the way to jail. I warned him of his constitutional rights and told him that anything he said would be used against him, and I told him that again in jail. (Court) You have said you did not hold out any reward or hope of reward, or make any threats? No, sir. Dave stated that he had shot this woman, but that his intentions were to shoot Orphie Kinsey. . . . I asked Mordie Kinsey if she knew her condition and she said she knew it, and expected to die. Her statement was that she knew she might die any minute and wanted to tell the truth before she died. She stated that Dave
The following witnesses for defendant testified, in part:
Clifford Harris: “I own the farm on which Dave Burney lives. . . . I saw Dave Burney on about August 25th. I saw him at the farm and he went to Kinston with me that day, that afternoon. I saw him the next day, at my home and in Kinston. He told me he had shot Mordie. He asked me to go with him to his home. He told me he wanted me to go down there to see her. I asked if she was shot badly, and he said he didn‘t think so, that she was shot in the legs. And he told me to go to see her and if we had to take her to the hospital that he wanted me to help to get her there. I went. He didn‘t go with me
Dave Burney, the defendant, testified, in part: “Clyde Morgan was messed up with some of them girls there. They call them grown women, but there ain‘t but two women there except my wife. The rest of them is nothing but children I raised up myself. Clyde Morgan got to putting a whole lot of trouble on me and got to running around and ganging around, you know, and I asked him to cut it out, and he would not do it. I said, `Clyde, this costs me right smart. It costs me about seventy-five dollars for one of the girls’ doctor bill, and the child died,’ and he wouldn‘t help me pay a cent of it. It hadn‘t been long since the child died, but me and Clyde had somе words one Saturday. And one Saturday
Lula May Hall: “I am a niece of Dave Burney. I live there with him. I was at home the night that the shooting occurred. I was there when my Uncle Dave came back from Kinston. In the kitchen. I did not see shooting. I did hear the gun fire. I saw Mordie Kinsey after the shooting, in the house. They brought her to the house. She walked up to the house. She was between mamma and Uncle Dave and Aunt
Carl Foy: “I didn‘t hear the gun fire on August 25th over at Dave‘s house. I was asleep, but my wife heard it. That same night Dave Burney came over to my house. He stopped in front of my place, and said to two of my boys for me to come down there. I asked the boy had he been drinking, and they said he had been drinking but was not drunk. I told them my wife was sick, and I couldn‘t go. One of Mordie‘s boys asked me if I heard the gun shoot, and I said I didn‘t, and then he said, `Well, Uncle Davе has shot mamma,’ and I told him to go back and look out for himself. Dave Burney caught me before I got to the house. When he called me to come down there my wife told me not to go. She was sick, so I went to the back door and he said, `Come to the road,’ and I said, `I ain‘t,’ and he said, `You are scared,’ and I said, `No, I ain‘t scared,’ and I said, `Come here.’ And he came there to the back and sat down at my feet and talked about ten minutes, and then he said, `Come out here; I have got something to tell you,’ and I went about ten steps. I just had on my pants and was barefooted, and he told me, `I shot Mordie.’ And I said, `Did you shoot her bad?’ And he said, `Yes, from her knees down,’ and he didn‘t say whether it was an accident or not, and he said he wanted to get someonе to get her to the hospital. And I said, `You get Mr. Jones and I will do all I can.’ He didn‘t have any car or any other kind of transportation.”
The State proved by several witnesses that the general reputation of defendant was bad.
The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion. At the close of the State‘s evidence and at the conclusion of all the evidence, the defendant in the court below made motions for judgment of nonsuit.
Exceptions and assignments of error were made on the trial below to the following questions and answers (which cannot be sustained): When Orphie Kinsey was being examined by the State, the following questions and answers were given: “Q. And that‘s the reason you are testifying like that? Ans.: No, sir, he didn‘t ask me anything about this. He just asked me how I was getting along and how were the children. Q. Who else was there? Ans.: Cricket Hobbs. Q. Cricket is another one of his women living there? Ans.: She is a girl that lives there. He raised her and she stays there.” This evidence was to explain the reasons why the witness was conversing with defendant. It may be that the question “Cricket is another one of his women living there?” was improper. The answer destroys the imputatiоn, as the witness answered, “She is a girl that lives there. He raised her and she stays there.” We cannot hold this as prejudicial or reversible error.
When Clifford Harris, the defendant‘s employer, was being questioned on cross-examination, the following testimony was admitted: “Q. How many women did he have there? Ans.: Why, there was, let‘s see, about five, I think, grown women. Q. And all of them have children, haven‘t they? Ans.: I think so. Q. There are about twenty-odd children around there, are there not? Ans.: Something like that. Q. And they are his, aren‘t they? Ans.: I don‘t know, sir. Q. And some of them are kin to him? Ans.: Some of the people staying there are kin to him.” When the objection was first made by the defendant it was on the ground that the testimony was not relevant. This evidence was admitted on the ground of motive. The State‘s evidenсe was to the effect that defendant had purchased shells with No. 4 shot and had sent the gun to the tobacco barn and had later had Orphie and her mother, Mordie Kinsey, to go down there with him. Defendant was drinking, cursing, and had a fight with Orphie Kinsey. He tore her clothes. The mother went back towards the house and he shot her. Defendant himself, in his testimony, gave the members of his household. Defendant was angered with Orphie, the daughter of the deceased woman. Orphie had left the home. The reason is given in his testimony. It seems that his motive was to control Orphie and her mother who lived with him — he was head of the household of women and children. On the whole we do not think the evidence prejudicial or reversible error.
The following questions were asked Leo Kinsey, a son of the deceased woman: “Q. How long have you lived with Dave Burney? A. I don‘t know. Q. That was your mamma who was killed? Ans.: Yes. Q. Do you know who your father is? Ans.: No.” This evidence is mainly negative and has little, if any, probative force. We see in it no prejudicial or reversible error.
The defendant contends that all of this evidence was prejudicial and was incompetent, reflective of defendant‘s character under the principle laid down in S. v. Bryant, 189 N.C. 112, and S. v. Shinn, 209 N.C. 22. The Bryant case was decided on the ground that it impinged
In the Shinn case is the following (at pp. 23-4): “S. J. Critz, who had testified as a witness for the defendant, on his cross-examination by the solicitor for the State, testified that he knew the general reputation of the witness, Luther Mesimer, and that it was `pretty good.’ He was then asked the following questions by the solicitor for the State: `Q. How many times has Luther Mesimer been up in court? Ans.: Two or thrеe times. Q. In the last six years, hasn‘t he been involved in affrays with deadly weapons at least half a dozen times, and isn‘t that his reputation? Ans.: I don‘t know how many times — several times. Q. Didn‘t he serve 8 months sentence for an assault with a deadly weapon, to wit: a knife? Ans.: Yes, sir.’ The defendant‘s objections to these questions and the answers thereto, all made in apt time, were overruled, and the defendant excepted.” The Court granted a new trial, basing its decision on S. v. Holly, 155 N.C. 485. In that case, at p. 490: “Dr. Bell, a witness for the State, testified upon cross-examination that the general character of the defendant was good. Upon the re-direct examination the witness was asked by the State if he had not heard that the prisoner had been accused of killing his wife. Thе witness answered `Not until after the present charge was brought.’ To this question and answer the defendant objected and excepted.” At p. 492-3, speaking to the subject, it is said: “If one collateral question of this character can be raised and tried, the same rule would permit a hundred others. The authorities in this State are numerous and uniform that it is error to allow such questions on the cross-examination of a witness as to character. In Barton v. Morphes, 13 N.C. 520, it was held inadmissible to ask `if he had not heard Morton accused of stealing a penknife‘; in Luther v. Skeen, 53 N.C. 357, that `there was a current report in the neighborhood that plaintiff had sworn to lies while
The evidence in the present case, which was objected to, tended to show motive. It gave the setting. Defendant was head of the household — a tenant with a large force to work the crops. The evidence indicated that he attempted to control Orphie Kinsey, who had left home, and her mother, Mordie Kinsey, the deceased. The defendant practically admitted all the testimony objected to. We cannot hold it prejudicial or reversible.
The defendant contends that the court in its charge did not present for the jury‘s consideration, manslaughter. The court below gave an accurate charge as to burden of proof, reasonable doubt, malice, premeditation and deliberation; what constituted murder in the first degree, the second degree, and stated fully the evidence and law applicable to the facts on which aspect the jury could return a vеrdict of not guilty. The evidence and contentions were fairly set forth on both sides of the controversy. The court below charged the jury: “Now, the court instructs you, gentlemen, that under the bill of indictment, and under the evidence offered in support of the bill of indictment, the jury can render one of three verdicts, to wit: guilty of murder in the first degree; guilty of murder in the second degree; or not guilty. There is no evidence to warrant the court in submitting to the jury the question of manslaughter.” From a careful review of the evidence which is in the record, without repeating same, we cannot see any element of manslaughter. The facts in this case are distinguishable from the cases of S. v. Kennedy, 169 N.C. 288, and S. v. Robinson, 188 N.C. 784, cited by defendant.
In 4 Warren, Homicides (1938), p. 447, is the following: “Where there is no evidence of passion and where one of two theories only can be accepted by the jury, either that of murder or self-defense, the defendant is not entitled to an instruction on manslaughter,” etc. S. v.
In S. v. McKay, 150 N.C. 813 (815), it is written: “The court further instructed the jury that they should return a verdict of murder in the first degree, murder in the second degree, or not guilty. There was no evidence in the case to reduce the crime to manslaughter, and therefore it would have been improper for the judge to have submitted to the jury a view of the case unsupported by any testimony whatever. S. v. Hicks, 125 N.C. 636; S. v. White, 138 N.C. 704.” S. v. Dixon, ante, 438.
The following exception and assignment of error made by defendant cannot be sustained: “It is largely a question of fact for you gentlemen. If you reject and refuse to accept, to adopt thе defendant‘s theory of the case, and upon all of the evidence in the case you should be satisfied upon the evidence beyond a reasonable doubt that he did shoot the deceased, mistaking her for Orphie Kinsey; that he intended to shoot Orphie Kinsey and to kill her, and if you find that he did it with malice aforethought and with premeditation and deliberation, then the court instructs you that as a matter of law he would be guilty of murder in the first degree, because under the law of this State, where a person with malice aforethought and with premeditation and deliberation intends to kill some particular person, but through mistake kills another, he is just as guilty as if he had killed the person he intended to kill.”
In Wharton on Homicide (3rd ed.), part sec. 359, p. 574, is the follоwing, which is well settled law in this jurisdiction: “The rule is nearly, if not quite, universal that one who kills another, mistaking him for a third person whom he intended to kill, is guilty or innocent of the offense charged the same as if the fatal act had killed the person intended to be killed.”
In S. v. Sheffield, 206 N.C. 374 (382), speaking to the subject, is the following: “In Wharton‘s Criminal Law, 12th ed., Vol. 1, part sec. 442, pp. 677-678, we find: `Where A. aims at B. with malicious intent to kill B., but by the same blow unintentionally strikes and kills C., this has been held by authorities of the highest rank to be murder.’ S. v. Benton, 19 N.C. 196; S. v. Fulkerson, 61 N.C. 233; S. v. Cole, 132 N.C. 1069.”
The court also charged the jury correctly in regard to defendant‘s testimony in reference to thinking he was shooting at Clyde Morgan, who had made threats against him.
The court charged the jury as follows: “Murder in the first degree is the unlawful killing of a human being with malice aforethought and with premeditation and deliberation. Premeditation means to think about beforehand for some length of time, however short. Deliberation
In S. v. Dowden, 118 N.C. 1145 (1153), it is said: “If the prisoner weighed the purpоse of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, put it into execution, there was sufficient premeditation and deliberation to warrant the jury in finding him guilty of murder in the first degree. S. v. Thomas, ante, 181; S. v. Norwood, 115 N.C. 790; S. v. Covington, 17 N.C. 834; S. v. McCormac, 116 N.C. 1033. This Court has not followed the intimations of some of the courts of other states that, in order to constitute deliberation, there must be evidence of a definite design formed on some occasion, previous to the meeting at which the killing was done, and cherished up to and at the time of putting it into execution. The court properly told the jury that where the intent to kill was formed simultaneously with the act of killing the homicide was not murder in the first degree. This was but another mode of expressing the rule that there must be a prеconceived and definite purpose to kill, the question of the time that elapses between the determination to kill and the killing being immaterial.” S. v. Hawkins, 214 N.C. 326 (334).
From the entire record we can find no prejudicial or reversible error. The defendant drinking and maddened by the troubles, or fancied troubles, with Orphie Kinsey and her mother, who were living at his home — Orphie having left his home and come back — purchased No. 4 shells for his gun the evening of the homicide and sent the gun to the tobacco barn loaded. Defendant enticed Orphie and her mother to go to the barn; near the barn defendant and Orphie got into a fight in which he nearly denuded her but she escaped. The mother retreated towards the house and while in the yard defendant shot her as she crouched on the ground. The shot that hit her and from which she died was No. 4. The whole record discloses a “jungle” situation — liquor, women and the sequel murder.
In the judgment of the court below, there is
No error.