Brinkley v. State

233 A.2d 56 (1967)

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Nature of the Case

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Facts

D lived in a room with the victim in the home of Mr. and Mrs. Elwood Ray. D shot the victim and killed her. D immediately admitted this to the police. The bullet had entered her right eye, and there were no powder burns on the body. The bullet had fragmented. Police officer found a .38 caliber revolver, loaded except for two spent cartridges, in the chimney flue in the basement of the house. D admitted to the officer that it was his gun. On D's behalf, Mr. Ray testified that he had owned the iron bed in appellant's room for a long time; and that there was a hole in the left leg at the foot of the bed which he had never seen until defense counsel pointed it out to him about the time the trial began, some five months after the killing. Pictures of the bed showing the hole were introduced into evidence. At trial, D testified that he and the victim had been arguing before the shooting. She was taunting him by saying she had been out with another man. D admitted firing the gun twice, to frighten but not to kill her. The first shot was fired over her head when he was about six feet from her. It apparently went out the window. The second shot was fired from a position near the foot of the bed. He said that it was fired downward; that, at the moment, the victim was sitting on the side of the bed leaning over; and that after the shot she fell back across the bed. The room measures 13 feet 8 inches by 13 feet 7 inches. The bed occupies much of the floor space, being 6 feet 9 inches wide. An investigating officer testified that he saw no hole in the bed at the time of the investigation. D was convicted of second-degree murder and appealed.