State v. Mercer

165 S.E.2d 328 (1969)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D and Myrtle were married in April 1965. D was stationed at duty posts in and out of the United States. Myrtle, Ida Mae Dunn, and Jeffrey Lane Dunn, Ida's five-year-old boy, lived together in Wilson, N. C. D visited Myrtle from time to time when on leaves. He was thirty-nine; Myrtle was twenty-three. D heard that Myrtle was having affairs with other men. D thought Myrtle's relationship with Ida involved more than normal affection. D received a letter from Myrtle, referred to in the evidence as a 'Dear John' letter, in which she told him she was tired of being tied down and wanted to come and go as she pleased. D wrote Myrtle: 'Please don't make me do something that will send both of us to our graves.' Also: 'I could never see you with another man, and I would die and go to hell before I would see you with some other man, and take myself with you.' D obtained a ten-day leave 'to come home and see if he could get straightened out with his wife. . . .' D told his first sergeant that 'if he did not get straightened out, he would not be back.' D talked with Myrtle. However, she would not discuss their marital problems and did not want him to stay at that house. D stayed at the home of his cousin, Mrs. Mable Owens, in Tarboro. He left there on the morning of September 14, 1967, and arrived at Myrtle's around noon. She would not talk with him. D testified Myrtle at that time gave him some clothes, a camera and a paper bag containing a pistol he had given to her for her protection. D returned to the home of Mrs. Owens. Sometime during the day D bought a pint of vodka and had two drinks from it. Mrs. Owens drive D to Myrtle's house in Wilson. There was no response. The house was unlighted and apparently no one was there. Later, D telephoned Myrtle's house. The line was busy. They went back to Myrtle's house. D asked Mrs. Owens if she and her children would go into the house with him. She replied that they would wait in the car. D went to the front door and knocked several times. There was no answer. D shot at the door twice, pushed it open with his foot, and went inside. At that time, a light came on in the front bedroom. Someone said, 'Ervin, don't do that.' D fired three or four shots killing Myrtle instantly and fatally wounding Ida and Jeffrey. He then left the house. A neighbor called the police. D was arrested at the home of his brother in Wilson, a few hours after the fatal shots were fired. The testimony of D tended to show he was completely unconscious of what transpired when Myrtle, Ida, and Jeffrey were shot. D was convicted of second-degree murder and appealed.