State v. Daniels

• Decision Date: 12 November 1913
• Citation: 79 S.E. 953,164 N.C. 464
• Parties: STATE v. DANIELS.
• Court: North Carolina Supreme Court

79 S.E. 953

164 N.C. 464

STATE v. DANIELS.

Supreme Court of North Carolina

November 12, 1913

Appeal from Superior Court, Durham County; Bragaw, Judge.

Cleve Daniels was convicted of murder in the first degree, and he appeals. Affirmed.

Evidence that defendant armed himself with a dangerous weapon, and that he used abusive language toward deceased prior to the killing, and a statement thereafter that he wished he had shot deceased again, was sufficient to show premeditation and deliberation.

This is an indictment for murder, and the prisoner being convicted of murder in the first degree, appeals from the sentence of death.

The prisoner moved for a continuance on account of the absence of Richard Cash, who was with the prisoner before and at the time of the killing, and by whom he expected to prove that he was under the influence of cocaine to such an extent that he was incapable of premeditation and deliberation. The motion was overruled, and the prisoner excepted.

The deceased, Jim Dunnegan, was killed in the daytime in the city of Durham on the 26th day of January, 1912. Ed Cain, offered by the state, testified: "Was living in January, 1913 on Glendale avenue in the northern part of the city of Durham; knew Cleve Daniels and Jim Dunnegan. Had known them for 10 or 15 years. Jim Dunnegan is dead; was shot. Saw the shooting; take place on Sunday; thinks deceased died on Monday morning. Went to the burial. Shooting took place about 50 yards from my house on Glendale avenue. I was about 10 feet from them. Was standing up against a tree on that street before the shooting. Garland Smith, Aaron Hobbs, and Joe Hayes were with us. Saw Jim Dunnegan and Robertson coming up from Corporation street, coming towards where I was standing. They stopped and went to talking. These two joined us, and made six of as there in all. Cleve Daniels and a white fellow named Cash was on Geer street at a house called Agnes Leathers', about 40 or 50 yards from where I was. Cleve Daniels went to Agnes Leathers' house, and afterwards he came to where we were standing. When he came up, Cleve Daniels says: 'What did you say, old nigger?' Never spoke to any one particularly, was talking to the whole crowd, and no one gave him any answer, and he said so a second time: 'What did you say, old nigger?' Jim Dunnegan asked him who he was talking to, and he said: 'I am talking to you, damn you. I don't like you nohow, and what it takes to kill you I got it.' He pulled out his pistol and fired, and Jim moved his leg like that, and he shot again, and by that time Jim grabbed his hand. He took his pistol out of his pocket and pointed it right level at Jim Dunnegan. Don't know whether he hit him the first time or not; knew he hit him on the second time, because Jim Dunnegan said so, then grabbed him. The shot hit him somewhere about the abdomen in the direction the pistol was pointed. It was a black pistol. I think a Smith and Wesson. (Identifies the pistol, which is here offered in evidence.) Nothing had been said between Jim Dunnegan and Cleve Daniels before Daniels stepped up and asked the question: 'What did you say, old nigger ?' Jim Dunnegan had been with me about five minutes before Cleve Daniels came up. After the second shot, Jim Dunnegan grabbed Cleve Daniels by the wrist, and after he caught his wrist he snapped three more times, but the pistol failed to go off. Jim Dunnegan did not have any weapon; only he took the pistol away from Cleve Daniels in the struggle. Afterwards Cleve Daniels got up and went down to his house about as far as from here to the back side of the courthouse. Jim Dunnegan lived on Corporation street, about as far as from here to the corner of Roxboro street. The only other words spoken were Aaron Hobbs, Cleve Daniels' brother, said to Jim Dunnegan, 'He has shot you once, why don't you beat hell out of him?' Jim Dunnegan did not do anything after he got Cleve Daniels down and struck him two or three times. Jim Dunnegan did not get his hand on Cleve Daniels until after the second shot was fired; they were about six feet apart then. Jim Dunnegan had both hands in his pocket. Cleve Daniels got the gun from back here somewhere (indicating his hip pocket). He had on an overcoat. Don't know whether he got it out of his overcoat pocket or his hip pocket. When Cleve Daniels walked up he said, 'What did you say, old nigger?' and didn't anybody say anything to him, and then he spoke a second time and said, 'What did you say old nigger?' and Jim Dunnegan said: 'Who is he talking to?' and Cleve Daniels said, 'I am talking to you, God damn you, I don't like you nohow, and what it takes to kill you, I got it.' Then he drew his pistol." Cross-examination: "The oath was not supplied. He cursed when he told Jim Dunnegan he did not like him nohow. I told it at the trial before. I don't know that I told that before. I know he cursed; know there was a damn in the oath. Pistol was aimed at Jim Dunnegan, and the shots were bam! bam!--just like that, in the same direction both times. Jim Dunnegan did not catch hold of Cleve Daniels' hand after the first shot; did not tell that downstairs. Pistol was pointed in the same direction both times, one shot right after the other, and the range of the pistol was not changed between the shots; pointed both times at Jim Dunnegan; fired twice, and if both bullets left the pistol it hit him both times; did not swear downstairs that Jim Duunegan ran to Cleve Daniels and said, 'Look, the negro shot me!' and grabbed him by the hand as he shot the second time. After he shot the second time, Jim Dunnegan grabbed him. They had had no trouble at all that I know of. Don't remember that he said, 'What did you say when I passed here before?' He went by the first time with Mr Cash, but Jim Dunnegan was not there; only me, his brother Garland Suitt, and Joe Hayes was there. Jim Dunnegan wasn't there. Don't know how long it was from the first time he went there until he came back. When Cleve Daniels first came by there Jim Dunnegan wasn't there, and Aaron had two dogs playing or fighting, and Cleve Daniels came by there and asked Garland...