State v. Dunheen

• Decision Date: 13 December 1944
• Docket Number: 651
• Citation: 32 S.E.2d 322,224 N.C. 738
• Parties: STATE v. DUNHEEN.
• Court: North Carolina Supreme Court

32 S.E.2d 322

224 N.C. 738

STATE v. DUNHEEN.

No. 651

Supreme Court of North Carolina

December 13, 1944

Criminal prosecution on bill of indictment charging the murder of one Laura Elizabeth Riley.

Defendant and the deceased had been 'keeping company' for about eighteen months. On 6 May 1944 defendant purchased a twelve-gauge shotgun and obtained five shells. He stated to the person from whom he obtained the gun and shells that he wanted them to shoot frogs and moccasins. On the night of 8 May he concealed the gun in a hedge around a mill lot on the edge of Minneola Street in the town of Gibsonville. This was the street sometimes used by the deceased in going to and from her home. At about 8:00 o'clock on the morning of 9 May he was seen stooping behind the hedge. He was also observed by other witnesses from time to time behind the hedge up to the time of the homicide. About 9:15 a.m deceased and a companion passed along Minneola Street within about 40 feet of the gateway to the mill and the hedge behind which the defendant was standing. As they passed, defendant shot the deceased and: 'He stepped back and did something to his gun and came back and shot immediately again. ' He was then seen leaving through the gate at or near the point he had been stooping and standing. The companion of deceased spoke to him and asked him why he shot, but he made no reply. On his way to his home he threw the gun in some weeds near the street. When apprehended and before being informed of the cause of his arrest he inquired 'Is she dead?' Later he admitted shooting once and said he recognized deceased by the red coat she was wearing. There was no evidence of any prior disagreement or ill feeling between defendant and deceased.

The jury returned for its verdict: 'Guilty of the felony of murder in the first degree as charged in the bill of indictment. ' The court pronounced judgment of death by asphyxiation. Defendant excepted and appealed.

Harry McMullan, Atty. Gen., and Hughes J. Rhodes and Ralph Moody Asst. Attys. Gen., for the State.

W. Henry Hunter, of Greensboro, for defendant appellant.

BARNHILL Justice.

In its charge the court instructed the jury in part as follows:

'(Now, gentlemen of the jury, as you find the facts to be from the evidence in this case under your oath you will return one of two verdicts. First, you will return a verdict of guilty of murder in the first degree if you find from the evidence and beyond a reasonable doubt that the defendant secured a shotgun, loaded a shotgun or had a loaded shotgun on the 9th of May, 1944 and was at the scene of the alleged killing, waylaid and secreted himself from the deceased and waited for her to come along while so secreted and while so waylaid, and when she did come along he shot her with a shotgun and she died as a result of such wound then, gentlemen of the jury, your verdict would be guilty of murder in the first degree.)

'If you fail to find from the evidence and beyond a reasonable doubt that those are the facts, that the person who did the shooting was someone else or that the defendant was not there, did not waylay the deceased, did not secrete himself in the hedge and wait for her to come along and if she did come along he was not the person who shot and killed her as a result of the shooting, under those circumstances your verdict would be not guilty.'

The defendant excepted to that part within parentheses.

When a homicide is perpetrated by means of poison, lying in wait, imprisonmen, starving, or torture, the means and method used involve planning and purpose. Hence the law presumes premeditation and deliberation. The act speaks for itself. G.S. s 14-17. Is this presumption rebuttable by proof that the prisoner is of such low mentality that he is incapable of forming a fixed design to kill? This is the interesting question defendant seeks to raise on this appeal. Unfortunately for him the record fails to present the question for decision.

The defendant offered no testimony, but his counsel made a diligent effort to develop by cross examination some evidence of insanity. As a result the record discloses the following:

The defendant was kept in a private cell for some time. A 'trusty' was placed with him as guard.

A witness was asked:

'Mr. Murphy, is it not the general practice in the Sheriff's Department when a man is put in and there is a question about his sanity for them to put him in a private cell? Objection by State. Sustained. Exception.'

This witness then testified:

'We have recently had some jail breaks in which prisoners charged with murder have escaped from jail. This kind of procedure in this case was a precaution to prevent a recurrence of that.'

The companion of the deceased at the time of the homicide testified on cross-examination:

'No statement was made by me or by Miss Riley in the defendant's presence about how crazy he looked and acted. * * I did not make any statement after we left the carnival about leaving her with him (by herself). * *...