[Copyrighted Material Omitted]
[46 Del. 490] Newton White, of Wilmington, for plaintiff in error.
H. Albert Young, Atty. Gen., Vincent A. Theisen and Stephen E. Hamilton, Jr., Deputy Attys. Gen., for the State.
Before SOUTHERLAND, Chief Justice, TUNNELL, Justice, and CAREY, Judge.
SOUTHERLAND, Chief Justice.
The record presents several questions, which may be summarized as follows:
[46 Del. 491] I. Was there sufficient evidence to support the conviction?
II. Was evidence properly admitted that defendant, after shooting and killing deceased,
III. Was the admission of photographs of the scene of the crime, showing the body of the deceased, improper and prejudicial?
IV. Did the trial court err in submitting the case to the jury in the evening, after the usual adjournment time?
V. Was the verdict 'guilty as indicted' a nullity?
VI. Was there error in the charge of the court to the jury?
The facts of the case--almost wholly undisputed--are as follows:
The defendant, John H. Bantum, was at the time of the crime twenty years of age, married and a resident of Philadelphia, having removed from his former home near Hockessin, Delaware, at the age of sixteen. He had served three years in the army (1946-1949), and, though unemployed, was awaiting entrance to an automotive school under the G. I. bill.
On Friday, September 16, 1949, he left Philadelphia to visit relatives in Kennett Square, Pennsylvania. He stopped in a taproom in Philadelphia and (according to his testimony at the trial) bought two marijuana cigarettes. He took the bus to Kennett Square, and after stopping at a barroom went to see a sister, and then returned to the barroom, having smoked (he testified) one of the marijuana cigarettes. He stayed at the bar until 11:30 p. m., apparently drinking a good deal, and, after a visit with some friends, went to the bus station and found it closed. He decided to walk to Hockessin, hoping to get transportation to Wilmington and thence to Philadelphia. He had taken with him when he left Philadelphia a 32-caliber Iver Johnson revolver, and on his way to Hockessin he loaded the weapon, having before[46 Del. 492] he left put in his pocket a number of bullets taken from a box at his home. The revolver was in his belt on the side with the last three buttons of his jacket buttoned over it. As he was approaching Hockessin (he testified) he smoked the second marijuana cigarette.
About two-thirty o'clock he came to the house of the deceased, Jack Copper, his cousin and an acquaintance of many years. The house was lit, and Copper's wife, Belle Copper, was on the porch. He identified himself and she recognized him and admitted him to the house. The Coppers' house contained a living room extending across the entire width, and a bedroom and another small room in the rear. Copper, who was in the bedroom when Bantum arrived, though not asleep, came into the living room, and the two men engaged in conversation. Belle Copper withdrew to the bedroom. Bantum asked Copper to take him to Wilmington. Copper refused. Bantum tried to persuade him, and both men became angry and began to quarrel and to curse each other. Copper was sitting near a china closet to the left as one enters the front door, and Bantum was sitting near a small table in the right hand corner. Defendant testified: 'He [Copper] jumped up and started toward the bedroom. I jumped up immediately, and that is when I pulled my gun and shot, before I realized it I was standing there with the gun in my hand.' Bantum shot Copper twice in the back as the latter was walking away from him toward the bedroom. Copper had drawn no weapon nor had he threatened Bantum. Belle Copper came out of the bedroom and Bantum threatened her with the revolver and made her return to the bedroom. The evidence is not clear as to the exact sequence of events, but it appears from his statements to the police (the voluntary nature of which is not challenged) that defendant shot at her three times and wounded her at least once, the third time after she had fallen or rolled under the bed. He then went outside, listened to see if anybody had heard the shots, emptied the revolver of five shells, and reloaded it. The emptly shells were later found by the police. He then returned to the house. Belle Copper was [46 Del. 493] wounded but not dead, and he knelt down and asked her about the keys to the car. He could not find them and he then fired a fourth shot at her. Returning to the living room he broke open the china closet, took five dollars and the car keys, went back to the bedroom and asked Belle 'was she dead'. She said 'no' and begged him not to shoot again and gave him a dollar and fifty cents in change from her pocketbook.
He 'didn't shoot again because [he] thought she would die.' Taking Copper's car he drove to Kennett Square, and thence to Philadelphia, throwing away the revolver and the remaining bullets at a point on the road to Kennett Square where they were later found by the police. Parking the car three blocks away, he went home and put the car keys, with the box of bullets, in the top of the toilet, where they were later found by the police.
The defendant was in due course arrested, brought to trial, convicted of murder in the first degree and sentenced to death.
We take up in order the six questions above listed.
I. Was the evidence sufficient to justify the verdict? Defendant's counsel argues earnestly that the State proved only a case of second degree murder--a crime committed suddenly, on the slightest of provocation in hot blood induced by a quarrel. We cannot agree. Although the jury might have found the defendant's act was a rash impulsive one, done without reflection or deliberation, and hence a case of implied and not express malice, the evidence is also consistent with that deliberation or 'cold blood' which, coupled with an intention to kill, would stamp the crime as first degree murder. The defendant may have still been to some extent under the influence of alcohol or drugs, but his own testimony tends to show that when he reached the Copper house he was in full possession of his faculties. On the way from Kennett Square to Hockessin he had loaded the revolver. Admittedly he shot the deceased twice while the latter was walking away from him to the bedroom. His conduct immediately after the shooting--the assault on Belle Copper, the visit to the porch to determine whether the shots had been [46 Del. 494] heard, his reloading of the revolver, his further assault on Belle Copper, his search for the car keys--taken as a whole, affords some evidence of the state of his mind immediately before he shot and killed Copper, and indicates that the whole course of action may have been deliberate. The jury was not required to believe his statement that he did not realize what he was doing. The jury could have found, on the evidence, that the defendant, in an ugly mood from drink, but fully understanding what he was doing, had determined to get a ride to Wilmington and that on being refused he was ready to kill Copper and take his car, and that his act in shooting Copper was, though sudden, a deliberate one. We do not say that this is the necessary interpretation of the facts; we do say it is a reasonably possible one. The issue was one peculiarly for the jury to resolve. State v. Till, Houst.Cr.Cas. 233, involved a physical assault by the deceased upon the defendant and is not in point. We have carefully read the record and conclude that the court below was correct in submitting to the jury the issue of first degree murder.
II. Did the court err in admitting, over objection, evidence of the assaults on Belle Copper after the killing of Jack Copper?
Defendant's counsel cite to us the well-established rule that evidence of other crimes is not, in general, admissible to prove the commission of the offense charged. State v. Greco, 7 Boyce 140, 30 Del. 140, 104 A. 637; Garboctowski v. State, 2 W.W.Harr. 386, 32 Del. 386, 123 A. 395, and note. Conceding that there are exceptions to this rule, e. g., where intent, identity, or a common scheme is required to be proved, defendant says that the instant case does not fall within any such recognized exception; and further argues that even if the evidence was admissible the jury should have been cautioned that it did not constitute substantive proof of the crime charged and was introduced for a limited purpose only.
We hold the evidence admissible. The applicable rule is stated by Wigmore (Vol. I, sec. 218) as follows: 'There is, however,[46 Del. 495] an additional class of cases in which the misconduct of a defendant may be received, irrespective of any bearing on character and yet not as evidential of one of the above matters (design, motive or the like), or as relevant to any particular subsidiary proposition. That class includes other criminal acts which are an inseparable part of the whole deed.'
Such evidence is not one of the exceptions to the general rule; it is admitted ex
State v. Russ, 4 W.W.Harr. 349,
34 Del. 379
153 A. 545
Commonwealth v. Coles,
265 Pa. 362
108 A. 826
84 Ala. ...