State v. Kincaid

• Citation: 110 S.E. 612,183 N.C. 709
• Decision Date: 22 February 1922
• Docket Number: 66.
• Parties: STATE v. KINCAID.
• Court: North Carolina Supreme Court

110 S.E. 612

183 N.C. 709

STATE v. KINCAID.

No. 66.

Supreme Court of North Carolina

February 22, 1922

Appeal from Superior Court, Burke County; Bryson, Judge.

Sidney A. Kincaid was convicted of murder in the second degree, and he appeals. No error.

Criminal action tried before Bryson, J., and a jury, at the August term, 1921, of Burke. The defendant was prosecuted for the murder of Lillie Kincaid, his wife, and from judgment pronounced on a verdict for murder in the second degree he appealed.

The defendant's residence, which was in Chesterfield, five or six miles from Morganton, was occupied by the defendant, his wife, her mother, and the defendant's brother, whose mental condition was abnormal. The defendant conducted a mercantile business about 250 yards from his residence. He and the deceased had been married about 15 years. Her death occurred late on Monday, July 18, 1921. On Sunday the defendant began to drink liquor, and on Monday he drank more freely until noon, when he began to take a drink every few minutes, and about 6 o'clock drank a pint; he then made a trip in a car to John's river, about two miles from home and returned to his store between sunset and dark, whereupon he and Rader each took a drink, and the defendant after a short interval took the last drink before going home.

The deceased spent Monday in the store; she was there when the defendant returned from John's creek; and after the defendant and Rader had taken a drink, the deceased called to the defendant, "Come on and let's go." The deceased went home alone, and the defendant tried to crank his car, but "it wouldn't fire." The deceased after going home told her mother that the defendant could not make the car go-- "he's too drunk; he can't bring that car to the house." The deceased and her mother ate supper, and the deceased went twice to the store and returned each time alone, the last time about 9 o'clock.

The residence, not including the kitchen, was a two-story building with an ell on the east side. Alongside the kitchen was a five-foot porch, from which a door opens into the hall of the main building. On this porch was a shelf about five feet long, and east of the porch and kitchen were the well house and the pump. A few hours before the death of the deceased, her mother had left on the shelf referred to a knife which she had used in the preparation of vegetables. After awhile the defendant came from the store to the porch at the rear of the house. The deceased went through the hall to the porch, and her mother went into her room to light a lamp. Just as the light was struck, the mother of the deceased heard the defendant in a loud voice say "Lillie, damn it, I won't take that," and afterward heard "a choking, gurgling noise." Running to the back door, she found the defendant and the deceased standing at the end of the porch. The defendant had his hands around the neck of the deceased, who was "up against the wall." The mother asked the defendant why he was choking the deceased, and he answered, "Mrs. Davis you don't understand." She then released his hand and exclaimed, "Lillie, Sidney has killed you!" and in a hoarse voice the deceased responded, "No; he hasn't." Mrs. Davis went into the house for a lamp, and upon returning found the deceased and the defendant sinking to the floor, blood gurgling from the wound. The defendant held the deceased in his arms, kissing her as they gradually went to the floor, and after they had fallen "screamed all he could scream," and said, "Surely I haven't done this!"

The following is the defendant's testimony of the occurrence:

"I went on home as usual, around the house the back way, the way I usually go, and when I got in the back side, the east side of the house, I met my wife just off of the back porch. As I recall, she says, 'You're going to keep on until you get on too much.' I put my arm around her neck and said, 'O, no, I'm all right,' walking in the porch and playing with her with something in my hand, coddling her about the shoulders. Next I heard Mrs. Davis spoke something. I don't recall what that was; it seems kinder like a dream that she said something. I just can't say positively what it was, whether "What have you done?" or "What have you done to Lillie?" or "Have you killed her?"--I can't say just what she did say. I felt something, seemed to realize something had happened. I didn't know what it was, what the trouble was. I saw something lying on the shelf, apparently looked like a knife. I picked it up and threw it out like that (indicating).

I remember lying down with my wife, seemed I could feel her begin to sink; I had her in my arms, and we laid down somewhere there on the porch or in the door, I don't know just where. I didn't know what was said when we went down, I laid down; I don't know what was said or done.

It is kinder like a dream. I remember seeing a few people there that night, several, that I knew, heard their voices, and knew their voices. Dr. Riddle was one; Charlie Rader was one; one of the Conley boys--I don't recall which one now--Mr. Bright, I believe. I recall that somebody said something about the sheriff, and Mr. Bright said, 'He's here now, coming now.' Dr. Riddle's name, I recall, was mentioned. I don't know what was said about him. That's about all I recollect of the circumstances."

The next morning the defendant's spectacles were found on the shelf and the knife in the yard near the well.

The physician testified that on the left side of the neck of the deceased there was an incision between an inch and an inch and a quarter in length and at right angles with the neck, that the appearance indicated a direct stab, and that a large blood vessel had been severed or cut.

There was evidence for the state tending to show that for several years the conduct of defendant toward the deceased had been offensive and menacing, especially when he was under the influence of liquor; and for the defendant there was evidence tending to show that he had always been considerate and affectionate.

The defendant contended that he did not inflict the wound, that he did not know the knife was on the shelf, and that if he inflicted the wound he did it unintentionally.

In prosecution for wife murder, the admission of testimony that witness had heard that defendant had been tried for seduction, but had never heard of his conviction, and that defendant had the general reputation of having been convicted of seduction, held harmless, in view of defendant's own testimony that he had been convicted of seduction.

In summoning jurors from other county, under C.S. § 473, it was within the sound, legal discretion of the court to determine whether the jurors be drawn from the jury box in such court or be summoned by the sheriff.

C. A. Jones, of Lincolnton, W. A. Self, of Hickory, and S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

After the arraignment his honor, on motion of the solicitor, made an order that 75 jurors be summoned from Lincoln county; and to the denial of the request that these jurors be drawn from the box exception was duly taken.

The statute provides: (1) That the presiding judge, instead of making an order of removal, may cause as many jurors as he deems necessary to be summoned from any adjoining county or from any county in the same judicial district; and (2) that the judge may direct the required number of names to be drawn from the jury box in said county. C. S. § 473. The obvious purpose is to authorize the court either to cause the jurors to be summoned by the sheriff, or to direct that they be drawn from the box. While the adoption of the latter course is commendable, it is not always practicable, and the presiding judge, in the exercise of sound legal discretion must determine by which of these methods the ends of justice may best be subserved.

On the cross-examination of Dr. Riddle and on the direct examination of R. V. Michaux, the defendant proposed to show that, judged by the observation of the witnesses, the relation between him and the deceased had been one of love and affection. The proposed evidence was excluded. Thereafter Dr. Riddle in response to a question as to any observed fact or circumstance tending to show such relation, testified as follows:

"I saw Mr. Kincaid when his wife was sick, and he made efforts to have something done; asked me to operate on her. She was at the hospital for an examination, and he seemed to be very anxious that something be done for her, and as I remember it a day was kinder set to do something for her, but nothing definite. Mr. Kincaid seemed to be anxious that something be done for his wife.

I didn't see them going about together so often; saw them in town occasionally in a car. Mr. Kincaid brought her to town, the best I remember. I don't remember anything further that throws light on their relation to each other. He was very kind to her in my presence always."

This witness, referring to the defendant, further testified, "I always thought he was very fond of his wife." On motion of the solicitor this expression was withdrawn from the jury.

R. V. Michaux testified as follows:

"I visited at their home. I have seen them in their home, and seen them at church; seen them at Marvin camp meeting two or three times; seen them here in Morganton, and in the store lots of times. I never saw them both in their home. I have seen them in the store several times; she was generally in the store when I was in there. At the times I have seen them together they seemed to speak to each other kindly, friendly, and all right when I saw them."

To the withdrawal of Dr. Riddle's conclusion that...