State v. Bowser

• Decision Date: 12 October 1938
• Docket Number: 145.
• Citation: 199 S.E. 31,214 N.C. 249
• Parties: STATE v. BOWSER.
• Court: North Carolina Supreme Court

199 S.E. 31

214 N.C. 249

STATE v. BOWSER.

No. 145.

Supreme Court of North Carolina

October 12, 1938

Appeal from Superior Court, Halifax County; W. H. S. Burgwyn Special Judge.

Claude Bowser, Jr., was convicted of murder, and he appeals.

No error.

Criminal indictment for the murder of one Lizzie Bowser.

In prosecution for murder wherein defendant pleaded insanity charge that plea of insanity did not constitute a complete defense unless defendant was incapable of having a criminal intent at time of killing as part of sentence in which court correctly charged on the burden of proof on the plea was not erroneous as an expression of opinion. C.S. § 564.

Alleged error in misstating the evidence in stating a contention of the state could not be held to be prejudicial error by the Supreme Court, where the matter was not called to the attention of the trial court at the time.

The State introduced evidence tending to show that: Lizzie Bowser was killed on the night of 22 February, 1938. On that night she, Dora Bowser and Gertrude Brown together attended school exercises at the London Schoolhouse between Littleton and Roanoke Rapids. A few minutes after Lizzie went into the school building, defendant, who was sitting in an automobile with Levi Epps, said-"The law is looking for me because I have killed a girl". To Levi's remark that he had not because, if he had, he would be running, defendant replied-"No, I ain't killed nobody, but I is". Defendant and Lizzie Bowser had been going together. She had talked to him at her home earlier that evening. Then, apparently, they were friendly.

When the school exercises, which in the various estimates of witnesses lasted from an hour to two and a half hours, were over, A. Brinkley Pierce joined Dora Bowser, and they, followed by Lizzie Bowser and Gertrude Brown, started walking home. As they reached the road in going from the school grounds the defendant came up beside Lizzie Bowser, who said to him: "Bud, you might as well go on home. I told you you could not go home with me tonight". Then she and Gertrude Brown walked on up the road. When they reached the mail box at the entrance to the path that leads to her home, Lizzie Bowser and Gertrude Brown stopped, but Dora Bowser and A. Brinkley Pierce walked on along the path. Alex Powell came along then, as did the defendant. Lizzie Bowser called to Alex Powell and said that she had something to tell him. She walked toward Alex Powell. The defendant walked up behind her and said something to her. She then stated to Alex Powell, "That is all right, I will tell you another time". Whereupon Alex Powell went up the road, and Lizzie Bowser again said to defendant: "Bud, you might as well go on home. I told you you were not going home with me tonight". Then she started to run and ran up the path. Defendant also ran, following close behind her. As she passed by, she said "Come on, Gertrude", but did not appear to be frightened. Gertrude testified that in a very short time she heard Lizzie holler twice. Dora Bowser and A. Brinkley Pierce also heard her and stopped and turned back to go to her. They found her one hundred eighteen steps away lying in the path. This point was one hundred twenty steps from where Gertrude Brown was when she heard her. She was dead. Before they reached her defendant called to Brinkley and said-"A. B., come here and get Lizzie. I done killed her". To Brinkley's question: "What in the world were you thinking about?" defendant made no reply but walked on down the path. He had met them about half the distance from where they turned back and the body. He had a knife in his right hand and it was bloody. Lizzie Bowser's throat was cut on the right side and on the left side with only a small place in front and a small place in the back that were not cut in two. There were signs of scuffling in the path.

Defendant was arrested about 1 A. M that night at the home of his father about three quarters of a mile away. When officers reached the house defendant was standing in the middle of the floor. On being asked for his knife, he gave it to the officer. It was bloody, He had told his father and mother that he had killed the girl. The officer asked him: "Why did you kill that woman?" He said-"I killed her because I loved her, and I told her if I ever caught her I was going to kill her". He told the officer that "the girl had her head lying on his shoulder when he cut her throat on the right side and then turned her head over and cut her on the left side".

While defendant was in jail, he demonstrated to Sheriff Riddick how he and Lizzie stood when he cut her, and how he cut her on both sides. Then he told the Sheriff that he ran his finger in her throat, put his knife under the windpipe and cut it in two. Also, while defendant was in jail, on being asked by the Clerk of Superior Court why he killed the girl, he again stated that he killed her because he loved her. Then he described the killing and told a story to the effect that the girl was pregnant and that they couldn't get married, and that they wanted to get out of it the best they could. There was testimony to the effect that the girl was not pregnant. Defendant did not go upon the stand, but relied upon plea of transitory insanity and offered testimony tending to show insanity of his grandmother, and tending to show incidents of curious ways and peculiar conduct on his part. The State offered evidence contra.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

Defendant appeals to Supreme Court, and assigns error.

Kelly Jenkins, of Roanoke Rapids and Irwin Clark, of Scotland Neck, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and Robt. H. Wettach, Asst. Attys. Gen.. for the State.

WINBORNE Justice.

(1) The exceptive assignment principally pressed on this appeal is the refusal of the court to allow defendant's motion for judgment as of nonsuit on the first degree murder charge made in compliance with the statute. C.S. § 4643. The motion challenges the sufficiency of the evidence to show premeditation and deliberation beyond a reasonable doubt. State v. Bittings, 206 N.C. 798, 175 S.E. 299, and cases cited.

It is pertinent, therefore, to refer to principles applicable to the case in hand.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. C.S. § 4200; State v. Payne, 213 N.C. 719, 197 S.E. 573, and cases cited.

The intentional killing of a human being with a deadly weapon implies malice and, if nothing else appears, constitutes murder in the second degree. State v. Payne, supra, and cases cited.

"'The additional elements of premeditation and deliberation, necessary to constitute murder in the first degree, are not presumed from a killing with a deadly weapon. They must be established beyond a reasonable doubt, and found by the jury, before a verdict of murder in the first degree can be rendered against the prisoner. State v. Miller, 197 N.C. 445, 149 S.E. 590."' State v. Payne, supra, 197 S.E. at page 579.

"'Premeditation means "thought beforehand" for some length of time, however short. State v. Benson, supra [ 183 N.C. 795, 111 S.E. 869 at page 871]; State v. McClure, [166 N.C. 321, 81 S.E. 458]."' State v. Payne, supra, 197 S.E. page 579, and cases cited.

"'Deliberation means that the act is done in a cool state of the blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the...