State v. Coffey

• Decision Date: 05 November 1947
• Docket Number: No. 291.,291.
• Citation: 44 S.E.2d 886
• Court: North Carolina Supreme Court
• Parties: STATE. v. COFFEY.

44 S.E.2d 886

STATE.

v.COFFEY.

No. 291.

Supreme Court of North Carolina.

Nov. 5, 1947.

SEAWELL, J., dissenting.

Appeal from Superior Court, Caldwell County; Hubert E. Olive, Special Judge.

Carl Coffey was convicted of second-degree murder, and he appeals.

Motion for judgment of nonsuit sustained, and judgment below reversed.

Criminal prosecution upon indictment charging that defendant, late of Caldwell County, on 22 April, 1947, with force and arms, at and in the said county, feloniously, willfully, and of his malice aforethought, and with premeditation, did kill and murder one Thomas J. Oliver, contrary to the form and the statute in such case made and provided, and against the peace and dignity of the State.

Defendant entered plea of not guilty.

Upon the calling of the case for trial, the Solicitor for the State announced in open court that he would not ask for a verdict against the defendant of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree, or manslaughter, as the facts and law may warrant.

The evidence offered upon the trial by the State, as set out in the record on this appeal, tends to show this narrative of events and circumstances at and about the date of, and in connection with the alleged homicide of Thomas J. Oliver, with which defendant Carl Coffey is charged:

Thomas J. Oliver, called Tom Oliver, resided with his wife, a son, Tom, Jr., and two daughters, Ruth, an adult, and Mar-celine, of teen age, in a house located on the county line between Burke and Caldwell Counties, North Carolina, about 300 to 400 yards to the left of the highway from Lenoir to Morganton, in a community thickly populated on both sides of the highway in directions of both Lenoir and Morganton. The highway was much used, and traveled day and night by trucks and other vehicles. A private road ran from the highway at the county line to the Oliver house. There was also an old road from the highway which ran in the direction of the Oliver house, and around the field. Between the house and the highway there was a patch of woods, a V-shaped piece of woodland. This house was about one-half mile from the house in which defendant resided, and about the same distance from the home of Eldridge Cannon. Defendant's home was about one-fourth mile from the Cannon home, and on the same old road that it is. Defendant had been buying milk from the Olivers, and would come to the Oliver house to pay for it.

On Monday night, 21 April, this year, Tom Oliver, with the assistance of his son Tom, Jr., transferred from his crib to a wagon "between 20 and 25" pasteboard cartons of whiskey, and "moved wagon and all" down below the house, next to the steep bank, out in the edge of the woods, near the old road, and left the whiskey on the wagon. Tom, Jr., testified: "Dad and I stayed with it Monday night * * * April 21st, the night before he was killed." Tom Oliver had his gun that night. Tom, Jr., left home to go to his work at factory in Lenoir about 6 o'clock, and was not at home on the afternoon of April 22nd, but "went home about 11:20."

Tom Oliver was at his home, says his daughter Ruth, until 2 o'clock that day when he picked up the ax and went down in the woods. About that hour his wife, who was at home, saw him and defendant coming down through the woods. She says, "They walked to the wagon and stopped and were talking." They were "up there" about 4 o'clock when the younger daughter came home from school. Later, between 6 and 6:30 o'clock, the two daughters went out there in the woods to get the ax and to call their father to supper. At that time he anddefendant were sitting on a log out in the woods, talking. The older daughter testified: "I saw somebody talking with him above the wagon, but I didn't recognize the person. It was just a short distance above. It was more than one person. There was just one person with Father, a man." She also testified that she knows defendant, and that she saw a person around the house that day, but was not close enough to recognize who it was. When the daughters called him to come to supper, Tom Oliver said, "O. K." The younger daughter saw the Oliver shotgun out there under the wagon, "but the older one did not see it." Both of them saw cartons of whiskey out there. They got the ax off the wagon, and went back to their house. The younger daughter also testified: "Daddy looked like he was drinking some, and Carl Coffey, too"; and that as she was going toward the house, quoting her, "I heard Daddy crying and I heard Carl Coffey laughing--it sounded like. Daddy was crying. I do not know whether Carl Coffey was laughing or what * * * I was out in the front yard and I could see them." Tom Oliver was "drinking some" when he came to supper, about 6:30 o'clock--about "dusky dark, " in the language of his wife. He stayed 20 minutes to half an hour and "went back out there * * * about 7:30 o'clock." That was the last time his wife and daughters saw him, they testified.

The next morning, Wednesday, about 5:30 o'clock, Tom Oliver, Jr., found his father below the wagon. He was in a dying condition, lying there with "his head beat up, " and "kind of down hill, " "bleeding and not conscious." Blood had run down on his face and off and puddled on the ground, about two feet long and one foot wide, and had congealed, "clotted and kind of dried around the edges." His body was stiff. He died in the course of an hour or so, without regaining consciousness. There were four lacerations on his skull, (1) outside and above the left eye, (2) just above and behind the left ear, (3) along the crest of the left upper head, and (4) on top of the head, behind. His skull and lower jaw were fractured. In the opinion of medical expert these wounds were inflicted by some "blunt typed instrument, " and the fracture of the skull caused his death. "His head had been cleaned up when I saw him, " the doctor testified. The body was then at a funeral home.

At the time Tom Oliver was found on Wednesday morning the wagon was in the place it had been left Monday. His shotgun had been broken in two. The stock of it was on the ground about one and a half to two feet from his head, and the barrel, with trigger attached, was up in the leaves about four feet from the body, according to his son, Tom, Jr., and was down the hill below the wagon, on the old road about fifty feet from the body, according to Hallyburton, a neighbor, and the officers. There was an empty shell in the barrel. When Officer Duckworth picked it up with his handkerchief on the trigger, "it looked like blood on the barrel, " he says. Duckworth also testified: "I took the gun barrel and stock with me. I put it in my car and carried it to Morganton, " and he latter turned it over to Officer Coble of Caldwell County, who says that then sticking to the gun hammer there was some "lint identical to the lint that was on Mr. Oliver's light felt hat. The hat * * * had blood * * * on the side that was lying in the edge of the puddle of blood.". (Both the stock and gun barrel were offered in evidence.) At the point where Tom Oliver was lying there was no evidence of scuffling, but down where the gun barrel was found, fifty feet away, "the leaves and stuff had been torn up like a scuffle had taken place." At the time and place there were cartons of whiskey of the same kind as those on the wagon Monday night. Some were stacked up on the wagon, or beside it, or above it, and covered up with "old quilts and things, " and some were scattered around up in the woods. About eight cases were broken open, and scattered and uncovered in the woods. Some of it had fallen out in the leaves. The witness Hallyburton says it looked like there were 18 to 20. cases. The officers took possession of the whiskey--but "didn't count the cases."

Defendant, according to testimony of El-dridge Cannon and his wife, came to the Cannon home "that night, April 22nd, between 8:30 and 9 o'clock." His wife came ten or fifteen minutes before he did. Hecame to the window and called Cannon "to come out there." He said he was shot and wanted Cannon to take him to a doctor. "He seemed to be pretty drunk. He stumbled in the door and fell on the floor." He had a double-barrel shotgun, and set it down in the corner and stated that there were not any shells in it, saying, "My wife hid the shells." His left pants leg was bloody. Cannon asked him to pull up his pants leg to see how bad he was shot, and he did so. "Blood was on his leg half way between his ankle and knee * * * and a hole about like a small shot or probably like a nail would make." He wanted Cannon "to go and get the doctor and get some liquor." "He said there was some liquor near the county line, and he wanted to get the Law and wanted the Law to clean up that liquor business. He said he went down to Mr. Oliver's * * * that he met up with Mr. Oliver at the mail box, and that Mr. Oliver wanted him to come out and talk to him, said he was guarding some liquor, and he said he went out there and talked to him a while, and that when he started to leave, somebody shot him * * * that after he walked about 30 steps from the wagon somebody shot him"--saying "he didn't know who shot him." His wife asked him if it was Mr. Oliver who shot him, and he said no, he didn't think so. Upon Cannon declining to go and "get the Law, " defendant said he would see if he could get somebody else, and got up and went out, but did not take his gun. After about five minutes he came back, and again wanted Cannon to take him to the doctor, and to get the Law. After Cannon examined his leg, he fell down on the floor. He said he had lost a lot of blood and was weak, but he got up, and sat in a chair. Mrs. Cannon gave him some coffee, and after drinking several cups, he appeared to be more sober than before. "He got to talking, " according to testimony of Cannon, "and said the same thing over and over until just before he left * * * said there were...