State v. Helton

276 P.2d 434 (1954)

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Nature of the Case

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Facts

D shot and killed her husband in the kitchen of their home, firing five shots from a .38 caliber Smith & Wesson revolver. D was charged with murder in the first-degree and convicted of second-degree murder. D was the only witness to the shooting. P introduced several photographs of the scene where the shooting occurred, the transcript of testimony given by D before her arrest at the coroner's inquest, called and examined thirty-two witnesses, and offered a large number of exhibits--thirty-eight of which were received in evidence. D called and examined eleven witnesses and had two exhibits received. Photographic evidence showed the body of the deceased lying with the head slightly north and west of the room's center, with the feet extending northeasterly toward the refrigerator. There was a note on the breakfast table written and signed by D, saying--'Dear Dale I cannot stand to live any longer. You can have everything I own Goodby Ann.' Five exploded shells and one unexploded shell were found in the revolver. One bullet was found and was left imbedded in the ceiling of the stairway hall where it had lodged after passing in an obviously upward and somewhat northwesterly direction through the glass panel of the upper portion of the door leading to the basement. A second bullet was found lying loose on the kitchen floor near the floor register in the northeast corner of the room. A third bullet was found lying loose on the kitchen floor beneath the breakfast table and near the corner of the breakfast nook made by the junction of the partial partition at the north end of the counter with the west wall of the kitchen. At a height of three feet nine and three-quarters inches from the floor was a mark, referred to in the testimony as a 'ricochet mark', of a bullet on the breakfast nook side of the wall of the partial partition, and at a height of three feet eight inches from the floor was another similar ricochet mark on the west wall of the breakfast nook. The testimony seems to assume that these ricochet marks were both made by the bullet found under the edge of the kitchen table. A fourth bullet was inside the extreme south end of the counter cabinet on the west wall near the floor, where it remained after having struck the kitchen floor at a point about three feet north of the living room doorway and approximately two feet east of the counter on the west side of the room, and then ricocheted into and through the front of the cabinet where it was found. The fifth bullet had passed through the counter cabinet at a point near the floor and approximately midway the length of the room, after it had also ricocheted from the floor at a point slightly beyond and to the left of where the head of the deceased lay, and was found inside the cabinet. A very small chip of lead from a bullet was also found on the floor near the head of the deceased, as was a portion of one of his teeth. The husband's wound on the neck was superficial and barely grazed the left side of the neck. It was inflicted fifteen to twenty seconds before death or after death. The would in the center of the husband's body would have caused death within a minimum of ten seconds to a maximum of less than one minute, probably around forty-five seconds--and there was no external bleeding from the wound. There was a grayish discoloration of about three inches in the area around the wound on the abdomen, and this discoloration was typical of powder burn, and it was a powder burn. The wound through the head was a fatal wound. The husband would have lived longer after its infliction than after the infliction of the body wound, because the carotid artery is a smaller vessel and the degree of hemorrhage would be less in a given period of time and, therefore, life would have continued possibly a couple of minutes as a maximum, or as the witness otherwise testified, 'I would expect that to be fatal within a period of three minutes at the most, two to three minutes.'' A second doctor testified that the body wound was inflicted before the head wound, giving as his only reason for such conclusion, that the carotid artery had been shot off. A firearm expert testified that tests conducted by him with the revolver in question, and ammunition of the same kind as that found in the one unexploded cartridge, showed that when the weapon was fired, the maximum distance from the muzzle where powder smudging would occur would be eighteen inches, and the maximum distance where powder particles would be found was four feet. A handwriting expert said the note was not written under emotional strain or stress and 'was not written under any force, under any strain whatsoever.' There was testimony that the husband had subjected D to some eight different assaults of varying degrees of severity. On the evening before the shooting, the parties had a quarrel, and the husband threatened to kill her. He forced her to write the note which was found on the breakfast table, and then, when she stood up, he hit her in the stomach and knocked her down; she became unconscious and on regaining consciousness got the revolver. By D's own story, the husband was not molesting her at the particular moment when she menaced him with the deadly weapon, The husband attacked her and she shot. D was found guilty of murder and appealed.