State v. Capps

• Decision Date: 01 March 1904
• Citation: 46 S.E. 730,134 N.C. 622
• Parties: STATE v. CAPPS.
• Court: North Carolina Supreme Court

46 S.E. 730

134 N.C. 622

STATE v. CAPPS.

Supreme Court of North Carolina

March 1, 1904

Appeal from Superior Court, Beaufort County; Council, Judge.

George Capps was convicted of murder in the second degree, and appeals. Affirmed.

On a conviction for murder in the second degree, a sentence to 20 years' imprisonment was not excessive.

The defendant was indicted in the court below for the murder of Augustus Tuten, and, having been convicted of murder in the second degree, appealed to this court. The evidence tended to show that the deceased, who was a boy seven years old, lived with his grandmother Mary McCulloch, whose house was about 30 or 40 yards from the home of the defendant. The house had only one room, and at the time of the homicide there were in this room Mary McCulloch, her three daughters, Georgia Florence, and Annie, and the little boy, who was killed by the defendant some time in the afternoon, between 4 o'clock and sunset; one of the witnesses stating that he heard the gun fired about 5 o'clock, and another that she heard it about 4 o'clock. The defendant came directly from his house to the McCulloch house, and had with him a single-barreled gun, into which he placed a shell as he was approaching the house of Mary McCulloch. The principal facts are stated by one of the witnesses for the state (Georgia McCulloch), who testified as follows: "When the defendant got to the house, he called me and said 'Georgia, come here a minute.' I said, 'I have not got time.' He said again, 'Come here a minute,' and I said, 'I have not got time.' Defendant was at the gate when he began calling me. When I said, 'I have not got time,' he said, 'You are scared of me, ain't you?' I said: 'No, sir; I ain't scared of you. I am cool.' He said: 'You act like you are scared of me.' I was sitting at the sewing machine during this conversation. I left the machine about the time it was over, and went up to the fire to warm my hands. While I was warming my hands, my sister Florence said, "Mr. Capps, when I go to your house, I recognize your house; and, when you come to mamma's, I want you to do the same.' He then said, 'Florence 'tain't worth while for you to begin to cut up, God damn it! I am going to shoot.' At the time the defendant and Florence were talking, defendant was standing on the door step. He then raised his gun, and presented it, and fired it right through the door into the house. When the defendant shot, I saw the boy fall in the middle of the floor, between the two doors. I saw the boy after he fell. He was shot in the side. As the boy fell, he put his hand to his head and side, and said, 'Uncle George has shot me.' I was about three steps (nine feet) from the boy when he was shot. The boy, myself, my mother, and my sisters, Florence and Annie, were in the house when the shooting occurred. After the shooting, the defendant walked around the house and went away." This witness further stated that the defendant did not like any of the McCulloch family much, that he sometimes quarreled with the little boy, that the gun was pointed in the direction where the deceased stood at the time he was shot, and that the defendant said nothing to or about the boy before he fired the gun. The evidence of the witness Georgia McCulloch was in all essential particulars corroborated by the testimony of Mary McCulloch and her daughter Florence. The witness Florence Tuten also testified That the defendant "shot right through the house," and when he shot he was 12 or 15 feet from where the boy fell. After the defendant fired the gun, he immediately left the house, and went towards the main road, and passed by his own house without stopping. That "he put up the gun to his face and seemed to take aim," but she was unable to say whether or not he put the breech to his shoulder. She further stated that before the shooting occurred the defendant's wife came over to their house, and she heard her say, "George, your gun is going to get you into trouble." Laura Collins, a witness for the state, testified: "I remember when Gus Tuten got killed. I saw the defendant twice that day. The last time I saw him was in the evening, at Mary McCulloch's house. I heard a noise or fuss over there. I stopped, and heard the defendant say, 'I am going to shoot,' and saw him raise his gun, and take sight along the barrel, and fire into the house. After shooting, he turned and walked away from the house. I hid in the bushes, and he passed me with his gun in his hand. It was a single-barrel breech-loading shotgun. I heard the defendant doing loud talking before the shot was fired. When he passed me, after the shooting, the defendant had passed his own house, going on. The shooting occurred about four o'clock on Saturday evening. I saw the defendant with the greens in his arms that evening as he went towards Mary McCulloch's house. On his way over there, he did not stop at his house or at the gate. His wife was behind him as he went over. The gun was against his face when he shot." Annie McCulloch, a witness for the state, testified: "I was present at the time the boy was shot. I heard the defendant say, 'I am going to shoot, damn it!' and he raised his gun up and shot right in the house, and struck Gus and killed him. I dodged out of the way when I saw he was going to shoot. The defendant left after the shooting. The back and front doors were both open at the time he shot. The defendant gave Georgia some greens that evening when he came over to our house, and she took them. I do not know where the boy was standing when the defendant came to the door." Alexander Watson, a witness for the state, testified: "I live about a quarter of a mile from the defendant and Mary McCulloch. I recall the time Gus Tuten was said to have been shot. I heard the gun fire about 5:15 that evening. I saw the defendant as he was going home that evening about 5. He had his gun then. His wife and Mary McCulloch were with him. They had some greens. I did not speak to the defendant, nor he to me. About 8 or 9 o'clock that night I saw the defendant again. He came to my house, and wanted me to go to his wife and get his clothes for him. I said, 'You had better leave here.' A few minutes later he came back to the house, and asked me to let him go upstairs, and I agreed that he could do so." There was testimony tending to show that the defendant was not drinking or under the influence of liquor when he committed the homicide. The jury rendered a verdict of guilty of murder in the second degree, and judgment was entered thereon, to which the defendant excepted and appealed.

Small & McLean and E. F. Simmons, for appellant.

The Attorney General, for the State.

WALKER J. (after stating the case).

The defendant's counsel, at the close of the testimony, requested the court to give certain instructions to the jury, which it refused to do; but we do not deem it necessary to consider or discuss them, as all of the questions intended to be presented by the other exceptions of the defendant are raised by the defendant's exception to one of the instructions given by the court in its charge to the jury. The court charged the jury correctly in regard to murder in the first degree, and also as to the circumstances under which the defendant would be entitled to an acquittal, but told the jury that in no view of the evidence could they convict him of manslaughter; and in this connection the jury were instructed as follows: "If you find from the evidence, beyond a reasonable doubt, that the defendant shot the deceased with a gun, inflicting a wound from which death resulted, but you are not satisfied beyond a reasonable doubt that the shooting and killing were the result of willful premeditation and deliberation, then your verdict should be that of murder in the second degree. If it resulted from willful premeditation and deliberation, then your verdict should be guilty of murder in the first degree. In no view of the evidence, if you believe it, can you return a verdict of manslaughter."

The question, then, is, was there any evidence, if the testimony is considered in the most favorable light for the defendant, upon which the jury could have returned a verdict that the defendant was guilty only of manslaughter? The defendant could not have his case presented here in a more favorable aspect for him than it is by this charge of the court, because if there is any view of the evidence which the jury might have taken, and which would have reduced the grade of his offense from murder to manslaughter, he is entitled to have us consider the case in that view. We have not discovered any evidence which entitled the defendant to an acquittal, if the jury found as a fact, which fact seems to have been admitted at the trial, that he killed the deceased with a deadly weapon; and we do not understand it to be seriously contended before us that there was any such evidence. The defendant's counsel, as it appears in the record, virtually admitted the killing with a deadly weapon, and also requested the court to charge the jury "that upon all the evidence in the case, if believed by them, the jury can find the defendant guilty of murder in the second degree or of manslaughter." The real question, therefore, is whether there was any evidence to reduce the grade of the offense from murder in the second degree to manslaughter.

There is no principle in the criminal law...