State v. Cauley

• Decision Date: 07 November 1956
• Docket Number: No. 296,296
• Parties: STATE of North Carolina v. William David CAULEY. and STATE of North Carolina v. Dorothy Heath CAULEY.
• Court: North Carolina Supreme Court

Page 915

94 S.E.2d 915

244 N.C. 701

STATE of North Carolina v. William David CAULEY. and STATE of North Carolina v. Dorothy Heath CAULEY.

No. 296

Supreme Court of North Carolina.

Nov. 7, 1956

Jones, Reed & Griffin, Kinston, for defendants, appellants.

George B. Patton, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

PARKER, Justice.

This is a summation of the evidence favorable to the State:

In February 1956 William David Cauley and Dorothy Heath were married. By a prior marriage Dorothy Heath had a son, William Brunell Heath, who was four years old in April 1956, and a daughter, Dorothy Dianne Heath, who was three years old the same month. After the marriage the two children lived with their mother and stepfather.

On 27 June 1956 this family was living about a mile and a half outside the city of Kinston on Route 4. Near neighbors were Mr. & Mrs. J. P. Shivar. Their houses were 12 steps or 36 feet apart, and the bedrooms of the two houses faced each other. It was a warm night, and the bedroom windows in each house were up.

J. P. Shivar was not at home that night. Mrs. Shivar had known William David Cauley about 15 years, and Dorothy Heath Cauley during the four or five months they had been neighbors. She knew their voices. On this night Mrs. Shivar retired early. About 10:00 o'clock she was awakened by hearing a child crying. The child was being whipped, and she heard the licks in her house. From 10:00 o'clock until 1:00 o'clock she heard the child whipped several times, and from 1:00 o'clock to 6:00 o'clock she heard the child whipped constantly. The child was crying, and every now and then uttered a loud, terrifying cry. She heard the male defendant calling the child a b--and a s. o. b., and saying, 'I ought to cut your G-- d-- head off.' During this time she heard the female defendant cursing and laughing: she recognized her voice. Prior to this night she had heard the female defendant say they made the children stay in the corner, because they wetted the bed or their pants. During this night she heard the male defendant saying: 'Go bring her some water: I will make her drink enough to burst her G-- d-- self open.' He made her drink water several different times, and as he tried to make her drink water, she heard him beating her. He told her: 'Drink that water, every G-- d-- drop or I will beat you to death.' She could hear the child's body hit the floor, and the male defendant saying, 'Get up, G-- d-- you, or I will beat you to death.' She heard the female defendant saying, 'until it run in my ears': 'Walk Dianne, don't go to sleep, walk.' She heard the male defendant saying: 'Run, G-- d-- you, don't walk, run.' She heard this until 6:00 a. m. The lights were on all that night at the Cauley Home. Mrs. Shivar did not see or hear anyone there that night except the defendants and the children. She heard nothing from the little boy. After 10:00 o'clock the male defendant left in his car, but in a short time returned. Mrs. Shivar did not sleep that night after 10:00 o'clock.

The next morning the defendants carried this little girl to the Lenoir Memorial Hospital. There at 9:30 a. m. she was seen in the emergency room of the hospital by Dr. Oscar W. Cranz. The child was semi-conscious, she would not respond, and was in a condition of shock. Dr. Cranz gave this description of her condition: She 'was black and blue over most of the body, including her head down, eyes practically closed and swollen, dark bluish areas over the entire body of the child, at least 95% or more of it, eyes, the lids were closed. * * * Both eyes were swollen shut.' Dr. Cranz considered the child's condition critical: he could not tell whether the injuries were permanent--it might take six months or a year to determine that. He had pictures taken of the child. The bruises were mostly transversely across the front and back of the child's body: 'there was a pattern all over the body.' Dr. Cranz called in Dr. W. E. Kieter, a pediatrician, and also made a report to the sheriff's office.

The defendant told Dr. Cranz the child fell out of a moving car. Dr. Cranz testified that injuries sustained in a fall from a moving car are described as brush burns, and he saw no evidence of brush burns on the child.

Dr. W. E. Kieter testified that the little girl had bruises, ecchymosis and edema from the top of her scalp to the bottom of her feet; the scalp was soggy; the eyelids were black and completely swollen shut; a cut on the right temple was oozing blood and serum; the eyeballs had hemorrhaged in the white of the eye; the connection between the upper lip and gum was broken; face, chest and extremities were all bruised; little areas of baldness on the head. He testified the most striking feature of the child's condition was the absence of brush burns and fractures, which often occur in a fall from a moving car. X-ray pictures showed the area of bruising on the child was enormous and tremendous. He testified: 'I have never seen anything like it.' There was, according to the testimony of Dr. Kieter, a recurrent pattern of stripes on the child's chest, and a recurrent pattern of a U shape or horseshoe shaped pattern six or eight times over the body. The female defendant told Dr. Kieter the child fell from a car. Dr. Kieter testified he had seen quite often people who had fallen from a moving car and said he didn't 'feel that the injuries I observed about the body and head of the child could have been caused by falling from a moving vehicle.'

While the defendants and the little girl were at the hospital the morning of the 28th of June, Margaret Shivar (a 15-year old daughter of Mrs. J. P. Shivar), Betty Jean Taylor and Ruth Holloway, all neighbors, went into the defendants' home. In the bedroom they saw bloody rags and towels, blood on the pillow of a bed, a man's leather belt with a metal buckle lying beside the bed, and a mat of hair on the floor, which two of these witnesses testified, without objection, came from the head of the little girl.

B. A. Holloway lives across the road from the defendants. Several times during the night of 27 June he heard a little child screaming at the Cauley home. He didn't sleep a wink that night.

Sheriff H. C. Broadway, in response to a call, went to the hospital the morning of 28 June. He saw there the nude body of Dorothy Dianne Heath. The child's body was black and blue, and kind of reddish in places, over her body from the thighs to the head. He testified, without objection, 'those wounds resembled a person's belt buckle: there were whelps and marks of that description of a belt buckle which I am wearing now.'

Mrs. Shivar did not see any blows or licks inflicted upon this three-year old girl. All she knew about the assault was what she heard. She testified, without objection, that at 10:00 o'clock that night she was awakened 'by the whipping of the child and her criying. I heard her being whipped and she was crying.' She was then asked: 'Tell what you did hear?' She replied: 'The child was being whipped. I heard her being whipped, and she was crying.' The defendants objected. The objection was overruled, and they excepted and assign this as error. Immediately afterwards she testified, without objection: 'I know she was being whipped because I could hear the licks from my house.' The assignment of error is without merit for the reason that her testimony to the same effect was admitted in evidence without objection before and after the challenged testimony was admitted. State v. Rich, 231 N.C. 696, 58 S.E.2d 717; State v. King, 226 N.C. 241, 37 S.E. 684. That the little girl was the victim of the beating is manifest from the male defendant's statement, 'go bring her water, I will make her drink enough to burst her G--d-- self open,' from the female defendant's statement, 'walk Dianne, don't go to sleep, walk,' and from her condition the next morning when she was admitted in the hospital.

On direct examination Mrs. Shivar was asked this question: 'Was any statement made about wetting the bed?' She answered: 'I had heard Mrs. Cauley say before that was the reason they made them stay in the corner was wetting the bed or their pants.' After the answer was given the defendants objected. Their objection was overruled. They excepted, and assign this as error. On direct examination she was asked: 'You did not go to sleep?' She answered: 'No sir, nobody could go to sleep and hear what I heard that night. I couldn't go to sleep. I did not.' The defendants objected. Their objection was overruled. They excepted and assign this as error. While these exceptions are set forth in the defendants' brief, in support of them no reason or argument is stated or authority is cited, and they are taken as abandoned. Rules of Practice in the Supreme court, Rule 28. 221 N.C. 544.

The only other assignment of error as to the testimony of Mrs. Shivar is the failure of the court to strike out all the testimony of Mrs. Shivar as to the whipping of the child. The court very properly denied their motion to strike.

The defendants, who have filed a joint brief, assign as error the denial by the court of their separate motions for judgments of nonsuit. However, their brief states that if the Supreme Court is of the opinion that Mrs. Shivar's testimony is competent, they concede there was sufficient evidence to take the case to the jury as to the male defendant.

It is significant that the defendants in their brief make no contention that the evidence is insufficient to support the charges that a deadly weapon was used in the assault and battery on the helpless three-year old girl. A deadly weapon is not one that must kill. It is an instrument which is likely to produce death or great bodily harm, under the circumstances of its use. State v. Watkins, 200 N.C. 692, 158 S.E. 393; State v. Archbell, 139 N.C. 537, 51 S.E. 801. Some weapons are per se deadly, e. g. a rifle or pistol: others, owing to the great and...