State v. Buffkin
| Citation | 183 S.E. 543,209 N.C. 117 |
| Decision Date | 22 January 1936 |
| Docket Number | 11577. |
| Parties | STATE v. BUFFKIN. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Columbus County; Williams, Judge.
Bright Buffkin was convicted of first degree murder, and he appeals.
No error.
Motion for mistrial on ground that juror, who had stated on voir dire that he had formed on opinion, had previously expressed opinion of defendant's guilt, held equivalent to "challenge propter affectum" and "challenge to favor" rather than "challenge for principal cause."-- The defendant was charged with the felonious slaying of D. P Barefoot. The jury found him guilty of murder in the first degree.
The evidence for the state tended to show that the homicide occurred on the shore of Lake Waccamaw, at a point called Dupree's Landing, about midnight of August 9, 1935; that the defendant, who was a married man, had driven there with a party in his automobile; that on the front seat with defendant were Mrs. Susie Lineberry and Ted Norris, and that Mrs. Nobles and Cyrus Cliff were on the back seat; that before going to the lake, while in the town of Whiteville defendant had had some words with the witness Arp relative to Mrs. Nobles' presence in defendant's car, and that on the way to the lake, Arp in his car had passed defendant's car twice and met it once; that a few minutes after defendant's car had arrived at Dupree's Landing, an isolated point on the sandy shore of the lake, another automobile arrived, driven by the deceased, D. P. Barefoot; that Barefoot was accompanied by the witness Jim Carey; that he stopped his car also on the shore of the lake about three steps to the right of defendant's car; that defendant was unknown to either Barefoot or Carey. Of the party, Carey knew only Susie Lineberry. There were lights on Barefoot's car but not on defendant's. According to Jim Carey's testimony, Ted Norris got out of defendant's car, went up to Barefoot, who was sitting under the wheel with the glass down, and inquired with an oath why they were butting into their party. Barefoot replied that he was not bothering anybody, just riding around, and Norris struck Barefoot twice without resistance; whereupon Carey got out on the ground and Norris had some words with him. Then defendant, Buffkin, got out of his car, came around the front of his car into the space between the cars, and Carey saw a pistol in his belt. Buffkin stood on the ground a few minutes and then walked over to Barefoot's car and shot him through the heart. Buffkin was standing two or three steps from Barefoot's car when he pulled his pistol out, walked up to the car, and shot him. Then defendant pointed his pistol at Carey, and said, "If you have anything to say, I will shoot you." Mrs. Susie Lineberry got out of the car and told Buffkin not to shoot, and he said, "I will go, but don't call anybody's name here," and drove off.
Jim Carey testified that he did not see Barefoot drinking or have a pistol, and that he did not do anything when struck by Norris, except to turn a little to the right on the seat. No word was spoken by him to Buffkin. It was testified that Mrs. Nobles was married, but it did not appear whether Susie Lineberry (or Susie Price, as she was also known) was or not.
Witness Arp testified that he saw defendant Buffkin, Norris, Cliff, and two girls in an automobile in Whiteville about 10:30 p. m., and had conversation with defendant and asked for Mrs. Nobles; that defendant said she was not in his car; that later he passed Buffkin's car twice and met it once, on the road between Whiteville and the lake. Norris testified, that defendant said, after Arp had stopped his car and questioned him about Mrs. Nobles, that he did not like for anybody to stop his car.
Defendant, Bright Buffkin, in his own behalf, testified as to the identity of those who were in the car with him, as to his movements from the time he left his home in Fair Bluff that afternoon until he was arrested at a filling station in West Whiteville shortly after the homicide. He admitted shooting the deceased, but testified he was attacked by Barefoot "with something in his hand," and that he shot in self-defence.
There was verdict of guilty of murder in the first degree, and, from judgment thereon imposing sentence of death, defendant appealed.
Greer & Greer, of Whiteville, and Varser, McIntyre & Henry, of Lumberton, for appellant.
A. A. F. Seawell, Atty. Gen., and Jno. W. Aiken and T. W. Bruton, Asst. Attys. Gen., for the State.
Defendant's counsel, out of abundance of caution, noted numerous exceptions to the evidence, many of which were abandoned. We have examined all the exceptions which were noted as well as those which were discussed in the brief, and decide they cannot be sustained. Some of the questions may have been leading, but were otherwise unobjectionable.
Evidence as to the location of the road, places, and the movements of the defendant and others shortly before the homicide was competent to show the surrounding circumstances.
The testimony as to the movements of Arp, his car, and as to the exclamation in defendant's presence respecting the identity of Arp's car, was, we think, competent. The state was attempting to show, if it could, that some feeling had been aroused in the defendant by reason of Arp's conduct in Whiteville and on the road, and that, when a car drove up beside his shortly after he had arrived on the shore of the lake, he may have been actuated by the belief that Arp was still trying to "butt in" on his party.
It was competent for the state to show defendant had a pistol on his person with one chamber of the revolver exploded at the time he was arrested.
Nor was there vice in permitting a question to a witness whether Mrs. Lineberry was married or not.
Defendant's counsel, in his able argument before this court as well as on brief, contended there was error in the ruling of the court below as to two of the jurors, and that a mistrial should have been ordered.
First, as to juror Proctor: Pending the trial and after the state had rested its case, defendant's counsel asked that the court investigate the qualification of juror A. F. Proctor, alleging they had received information since the jury was impaneled that this juror had previously formed and expressed the opinion that defendant was guilty, whereas while the jury was being selected, on his voir dire, the juror had stated he had formed no opinion.
Thereupon the oral testimony of Crom Buffkin, A. E. Spivey, and A. H. Best was heard by the court. Crom Buffkin testified he had heard juror Proctor discuss the case and say he thought they were all guilty and ought to be punished-ought to be lynched. This witness stated he knew defendant, but, if he was any kin, it was distant. He admitted he had been indicted four or five times for assault with deadly weapon and for whisky. A. E. Spivey testified he heard juror Proctor say in the presence of Crom Buffkin and A. H. Best that he believed all of them were guilty. That was all he heard him say. Witness admitted he had been in court for driving a car while drunk and for fornication and adultery. A. H. Best testified that on one occasion he heard the case discussed when juror Proctor was present, but did not recall anything Proctor said.
In rebuttal, the state offered evidence that the character of juror Proctor was good, and that the character of Crom Buffkin and A. E. Spivey was bad.
Thereupon the court made the following order:
"Upon the hearing and investigation, the court finds that the said A. F. Proctor was duly summoned, and presented himself before the court, where he was interrogated under oath on the voir dire by counsel for the State and the defendant, and that he thereupon stated that he did not know and was not acquainted with the defendant, and was not related to him; that he had formed and expressed no opinion as to the guilt or innocence of the defendant, and had no impression of the case unfavorable to him; that he could go in the jury box and return a verdict, under his oath as juror, guided by the evidence and charge of the Court as to the law; whereupon, said jury was accepted by the State and the defendant, and along with the other jurors empaneled for the trial of this cause.
The Court further finds that the said Proctor is qualified to serve as a juror in this case, and is an indifferent, impartial juror.
Wherefore, the motion of the defendant to disqualify and withdraw said juror, Proctor, and declare a mistrial is denied by the court in the exercise of his discretion."
The finding of the court that the juror was qualified is conclusive, and the exception thereto cannot be sustained. State v. Potts, 100 N.C. 457, 6 S.E. 657.
The court in effect found that the evidence offered to prove the disqualification of the juror was not credible.
This motion was equivalent to what the common law designated as a challenge propter affectum, and fell into the category of a challenge to the favor rather than a challenge for principal cause, and the finding as a fact by the trial judge that a juror is indifferent is not reviewable on appeal. Butler v. Greensboro Fire & Ins. Co., 196 N.C. 203, 145 S.E. 3.
As to juror Foster Stanley, the defendant's contention was that Stanley was related by marriage to the deceased, D. P Barefoot. It appeared however, that juror's uncle, Vance Gore, now deceased, had married Lou Baldwin; that Lou Baldwin's sister Alma had married one Barefoot, who was the father of the deceased; or in other words, that juror Stanley's deceased uncle's wife's sister had married the father of the deceased. This would not constitute relationship by consanguinity or affinity. The juror was in law not related by marriage to...
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