[46 Del. 552] Everett F. Warrington, of Georgetown, for plaintiff in error.
John J. McNeilly, Deputy Atty. Gen., for the State.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting:
Thelma Dorothy Powell (hereinafter referred to as the defendant) was tried upon an indictment for murder in the first degree. The jury returned a verdict of guilty of murder in the second degree and recommended the defendant to the mercy of the court. The defendant moved to set aside the verdict and for a new trial. The trial court refused the motion for a new trial without opinion, one Judge dissenting. The defendant was thereupon sentenced to life imprisonment.
The facts of the case may be summarized as follows:
[46 Del. 553] The defendant was married in 1935 and later widowed. Two daughters were born of her first marriage. Subsequently, she married a second time but, in August of 1949, she and her husband agreed to live apart and she established her residence with her two minor daughters in a cabin on the edge of a woods one and a half miles south of Georgetown. On occasion, her husband came to stay with her there.
In the early evening of June 9, 1951, the defendant went to Georgetown with her two daughters and, leaving the daughters in the care of a friend, went on to a drinking and dancing place in Maryland in the company of three men. While at this palce, called The Star, she met Harry Shockley. In the course of the evening the three men who had taken her to The Star left, after arranging for the defendant to return to Georgetown with Shockley. Some time later, the deceased, Granville Brittingham, whom she had known prior to that time as a friend of her husband, asked her if he could return to Georgetown with her. The defendant told Brittingham that he would have to ask Shockley. Brittingham then arranged to return to Georgetown, where he lived, with Shockley and the defendant.
The trio left The Star for Georgetown shortly after midnight. Shockley was the driver and the defendant was sitting on the front seat between him and Brittingham. In the course of the ride, Brittingham made, on two occasions, improper advances toward the defendant, but she testified at the trial that she had no recollection of the trip back.
On their arrival in Georgetown, they went to the home of the defendant's friend and picked up her two daughters. They then drove out to a curb service restaurant and obtained coffee. While this was taking place, Shockley offered to take Brittingham to his home in Georgetown but Brittingham refused, stating that he wanted to go home with the defendant. Some discussion concerning this ensued, the defendant telling Brittingham that if he rode with them to her home he would have to return with Shockley.
[46 Del. 554] They then drove to the defendant's cabin and, after obtaining a rifle, cartridges and a flashlight from the cabin, went to a small pond nearby and shot bullfrogs for an undisclosed period of time.
Some time between 2:00 and 3:00 A.M., the two men and the defendant returned to the defendant's cabin. The cabin contained a livingroom, kitchen and bedroom in which the two daughters had already retired. The defendant's bed was a daybed in the livingroom. Brittingham lay down on the daybed after having taken off his shoes. Shockley prepared to leave and called to him. Some discussion took place eventually culminating in an attempt by Shockley to get Brittingham off the daybed in order to take him home. When this took place, he struck at Shockley and Shockley left in anger. The defendant begged Shockley not to leave without Brittingham.
After the departure of Shockley, the defendant made repeated efforts to persuade Brittingham to leave. These repeated attempts are verified by the testimony of the two daughters of the defendant who testified for the State. Several times the defendant managed to get him up off the bed and started toward the outside door but each time he returned and laid down. Finally, the defendant told him that if he did not get up and leave, she would shoot him. To this he replied that if she was going to shoot him, to shoot him between the eyes. The defendant said she wouldn't do that but would shoot him enough to hurt him and make him leave.
Following this exchange, the defendant walked to a corner of the room diagonally opposite the daybed on which Brittingham was then sitting, picked up a loaded rifle and fired, intending, she testified, to hit his left arm.
The daybed on which Brittingham was sitting was against the outside wall and immediately to the right as one entered the outside door of the livingroom. Against the adjacent wall on the right was a library table opposite which the defendant was standing[46 Del. 555] during the colloquy described and ...