State v. Burney

• Decision Date: 24 May 1939
• Docket Number: 290.
• Citation: 3 S.E.2d 24,215 N.C. 598
• Parties: STATE v. BURNEY.
• Court: North Carolina Supreme Court

3 S.E.2d 24

215 N.C. 598

STATE v. BURNEY.

No. 290.

Supreme Court of North Carolina

May 24, 1939

The defendant, Dave Burney, was indicted for the murder of Mordie Kinsey on August 25, 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, August 25 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 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 somethings, 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 you. You know all about it. I am going to kill you, G-- damn you.' Well, in just a short while, I don't know how long, I wouldn't like to say but it was just two or three minutes, it seemed to me (in fact, it didn't seem to be over a minute) I heard a gun fire. Up until that time I heard Dave cursing right loudly, but immediately after the gun fired everything was quiet down there. I heard nothing more for several minutes. And then I heard a beating noise, in two or three minutes I guess it was, from the time I heard the gun fire, it might have been five minutes."

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 was 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 aint', 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, and 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? A. No, sir, he didn't ask me anything about this. He just asked me how I was getting along and how were the children. (First objection). (Defendant objects to the question and answer; overruled, defendant excepted.)

"Q. Who else was there? A. Cricket Hobbs.

"Q. Cricket is another one of his women living there? (Second objection) -- (Defendant objects; overruled, defendant excepted.) A. She is a girl that lives there. He raised her and she stays there. I have a baby six years old, both of them was born while I was living with Dave. Yes, I talked to Dave's lawyer this morning. I didn't tell you that, because you didn't ask me if I had talked to him. I have been living there with Dave Burney since I was eight years old, and he took care of me and treated me like he would his daughter. On the week-end before the shooting I went off and stayed, and mother didn't know where I was and I reckon that was what he was mad with me about. *** I said I spent one night away from home. I left that way because Dave told me to go up there and stay with Lillie Foy the third Sunday before that Thursday, and when I went back home, he was not there, and when he came he had a little stick in his hand, and he hit me with the stick and I ran, and he got his gun and pointed out the window. I was outside, and I got away and left that time, and that was the cause of my leaving. I had been back there before this night on which my mother was killed. I came back on Monday about 4:00 o'clock, I reckon, before she was shot on Thursday."

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 some 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 he 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 God 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. That was after he shot her. *** The door in the room where I was in was shut, and in the middle room the door was open. The door that I set out through was open. No body told me to come here and tell anything. I seed what I told, and I am positive about it. (Court) How long have you lived with Dave Burney? Ans: I don't know. (Court) That was your Mamma who was killed? Ans: Yes. (Court) Do you know who your father is? Ans: No." (Exception.)

Dr. R. G. Tyndall: "I am a practicing physician and surgeon in Kinston. I remember when this woman, Mortie 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 shoetop 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 shooting. 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...