State v. Hawkins
| Citation | 199 S.E. 284,214 N.C. 326 |
| Decision Date | 02 November 1938 |
| Docket Number | 290. |
| Parties | STATE v. HAWKINS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; H. A. Grady, Judge.
Roby M Hawkins was convicted of murder in the first degree, and he appeals.
Affirmed.
In uxoricide prosecution, permitting jury to attend moving picture show depicting a murder mystery did not require that the verdict and judgment of conviction be set aside.
Criminal action on indictment charging defendant with the murder in the first degree of one Mittie Geneva Hawkins.
Verdict Murder in the first degree.
Judgment Death by asphyxiation.
Defendant appeals to Supreme Court and assigns error.
A. D. Ward, H. P. Whitehurst, and R. E. Whitehurst, all of New Bern, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for the State.
After careful consideration of all exceptive assignments, we find no error.
On the trial below the State offered evidence tending to show that: The dead body of defendant's wife, Mittie Geneva Hawkins, was found crumpled on the floor in the front room of their home near Cove City in Craven County, about 3 o'clock P. M. on 9 March, 1938. There were no eye witnesses to the tragedy. A sound as of gun shot indoors was heard by neighbors about one thirty o'clock. She had been shot over the heart with a shot gun, and No. 4 shot were taken from her body. An ironing board was near by and a shirt was in her hand. An empty shell recently fired and a shell loaded with No. 6 shot were found by the coroner in the hallway of the house.
The defendant was not then at home. Just before one o'clock on that day he went to a nearby store and bought "a quarter's worth" of gun shells loaded with No. 4 shot, seven shells of the same kind as those found in the house. On leaving the store defendant joined his father and R. M. White between the store and his house and tried to borrow a mule and plow from White to do some plowing. White testified: .
Defendant was next seen about two o'clock, approximately a half mile to the rear of his home, coming up a path to the edge of a newground being cleared. He had a double barreled gun in his hand. He stopped, laid the gun down and sat down on the ground. He stayed there about an hour and a half. In the meantime he motioned for Willie Mitchell, who was working there, to come to him, and asked if he had any money. Mitchell talked with him five or ten minutes. His brother, Ernest, came there. Later defendant's brother, Levi, came. Soon thereafter defendant was seen to go toward the home of his father and in a short time came back, going in the direction of his home. When defendant reached his home the coroner, the sheriff and others were there to make an investigation. Defendant told the coroner that when he went to his mother's he found out his wife was dead. On being questioned by the sheriff, defendant said: "I hope you don't think I did it".
The coroner asked defendant if he wished to see his wife; he replied, "Yes", and, on being shown the wound, he "lit a cigarette and walked on out". He did not make comment or inquire as to how it happened. "He was just staunch". He showed no emotion.
Defendant told the sheriff that he owned a double barreled shot gun but that his brother, Ernest, borrowed it about two months before. The gun was found the next day under a pile of brush near the newground where defendant was seen the day before. Levi Hawkins pointed out the place. Both barrels of the gun were empty, but one barrel bore evidence of having been recently shot.
Walter Yates testified,
The evidence tended to show that the defendant had been a heavy drinker for several years, and for the past year or more he had been drinking constantly.
Defendant testified substantially: That he had been drinking heavily for ten years; that he drank on the day of his wife's death; that he didn't remember seeing his father or Mr. White down town, nor going to dinner, but did remember talking with Willie Mitchell sometime after dinner; that he did not kill his wife; that he knew he did not kill her; that he had no reason to kill her; and that he guessed he would have sense enough to know right from wrong. He denied buying the shells at the nearby store. He stated that, while he and his wife had fusses during their married life, he held no grudge or malice against her at any time. He testified that he knew nothing about the death of his wife until he reached his father's home, where his sister informed him she was dead. He denied that his son had accused him of killing his wife. He denied that he had made the statement attributed to him by Walter Yates.
Royall Hawkins, twelve-year old son of defendant, testified that he did not accuse his father of killing his mother. He further denied that, on learning that his mother was dead, he rode down town crying that his daddy said he was going to kill his mother and now he has done it.
The State offered evidence tending to contradict the son. Much evidence was introduced bearing on the extent to which defendant had been and was drinking, and as to his mental condition.
Other evidence will be referred to in treating the exceptions which we deem of sufficient importance to require consideration.
1. The defendant stresses on exceptive assignment the admission of the testimony introduced by the State tending to show that defendant remained silent when, soon after the discovery of the body, Royall Hawkins, the twelve-year old son of defendant, was heard to cry out and say to his father, "You are the one that killed my mammy, too", and also, "You said you were going to kill her and you killed her and she is dead".
In State v. Wilson, 205 N.C. 376, 171 S.E. 338, it is said [page 339]: "When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. State v. Suggs, 89 N.C. 527. But the occasion must be such as to call for a reply. 'It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it.' 16 C.J. 659.
Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. State v. Burton, 94 N.C. 947; State v. Bowman, 80 N.C. 432."
"The general rule is that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements." State v. Wilson, supra.
At the time the charges were made defendant was in a room across the hall from the room in which the body of his wife lay. It was not then known who killed her. Defendant manifested no emotion. Under well settled principles of law, the occasion called for a denial. The circumstance is competent for consideration by the jury. State v. Jackson, 150 N.C. 831, 64 S.E. 376; State v. Burno et al., 200 N.C. 142, 156 S.E. 783, 80 A.L.R. 1229; State v. Wilson, supra.
2. The State, over defendant's objection, offered evidence tending to show threats of defendant against his wife, the deceased: (1) Mrs. Larry McCoy testified that in the summer of 1935, on being attracted by the children screaming, she heard defendant say that he was going to kill his wife; and (2) Mrs. Jessie Johnson testified that she heard Royall Hawkins, the twelve-year old son of defendant, in the house soon after the discovery of the body, say to his father, "You said you were going to kill her and you killed her and she is dead", to which defendant was not heard to reply. Also, without objection, the State offered the testimony of the ten-year old daughter of defendant that about a month before her mother's death, "I heard him say that he was going to kill her if she stayed there and he was going to kill her if she left". In the admission of this testimony there is no error.
Evidence of threats are admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. State v. Payne, 213 N.C. 719, 197 S.E. 573, and cases cited; State v. Bowser, N.C., 199 S.E. 31.
The fact that the first alleged threat was made more than two years prior to the homicide does not render such evidence incompetent as a matter of law. The remoteness goes only to the weight of the evidence and not to its competency. 8 R.C.L. 187; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Payne, supra.
In State v. Johnson, 176 N.C. 722, 97 S.E. 14, Brown J., said [page 15]: ...
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