Breeding v. State

Henderson, J., delivered the opinion of the Court. The appellant was indicted for the murder of Ruth Ellen Cannon on or about June 28, 1958. He was tried before three judges, sitting without a jury, convicted, and sentenced to life imprisonment. The chief question presented is whether the evidence supports the conviction.

Mrs. Cannon was last seen by her husband at about 12:35 P.M. on Saturday, June 28, when he left home, after lunch, to return to work. When he came back about 5 P.M. she was missing. The slacks and blouse she had been wearing when he left were found folded on her bed. Two buttons had been torn from the blouse, and a torn brassiere was inside the blouse.

He first assumed that she had gone to visit her family, or friends. He alerted the police about 1 A.M. of the following day. Mrs. Cannon’s body was found in a wooded area at about 3 P.M. on Monday, June 30. When found, the body was clad in blue shorts, white blouse and white shoes or sandals.

The spot where the body was found was about 600 feet from a dirt road that runs parallel to State Route 404, at a point about lf/2 miles from the Delaware state line. A police officer testified that it would be difficult, if not impossible, to carry the body to the spot where it was found, because of the thickness of the underbrush. A medical examination fixed the probable time of death at from 9 A.M. Sunday morning to 9 A.M. Monday morning. The cause of death was strangulation by means of a strip of cloth torn from the victim’s blouse, which remained around her neck and exactly fitted a groove around her neck.

A shorter strip of the same cloth was found lying to the left of the body, which was face downward. There were also signs of violence, consisting of hemorrhages in the region of the left ¹⁹⁶ eye, and a fracture of the skull in the back of the head, which occurred not more than one-half hour before death, in the opinion of the medical examiner. These blows were sufficient to cause unconsciousness, but not death because the bleeding continued. The bare legs of the victim showed numerous scars and abrasions, probably due to brambles.

She had a bruise on the inside of her thigh. It was the opinion of the medical examiner that she had not been raped, and he found no evidence of recent sexual intercourse. Some blueberries were found in her stomach, which had been eaten about 6 hours prior to death. She was four months pregnant.

Breeding, a young married man with several children, owned ,„a two-toned 1953 Ford, colored pink and gray. He left his home about 7:30 A.M. Saturday morning. He went to the home of his cousin, a married woman, and tried to get her to go out with him, but she refused. He told her he “wanted a woman, and was going to have one, or else.” He drove around, stopping at various taverns for beer, and at the homes of various girls, whom he tried to date.

At one tavern he picked up a male companion, who rode with him but finally became hopelessly drunk and was left on the roadside. Breeding told this companion he wanted a woman, and made certain phone calls and one stop, without success. The stop was at the home of a Miss Hill, who testified that Breeding was sober, but the companion, Wissman, was so drunk as to be incoherent. This was about 2 P.M. Wissman testified he awakened between 4 and 6 P.M. lying alongside a side road, not far from the Cannon home.

A passing motorist took him to Denton, where he was seen by a number of people attending the chicken festival there. At about 3 P.M. Wayne Geisel, a milk truck driver, drove •past the Cannon home and saw a pink and gray Ford parked there with its hood up and doors open. About 15 minutes later, when he drove by on his return, he saw-the same car drive up the driveway and stop by the porch. When he looked again, he saw Mrs. Cannon entering the house, and a man whom he later identified as Breeding following her.

About 4 P.M. Cloyd Geisel saw a pink and gray car back out of the Cannon drive. Mrs. Geisel also saw the car back out, and fixed the ¹⁹⁷ time as about 4 P.M. Mrs. Ellwanger also saw a car answering the same description go past her home, going in the direction of the Cannon home. Between 5 and 6 P.M. Mrs. Charlotte Smith and her daughter, Judy, aged 16, saw the car go past their home in Delaware, and identified it as Breeding’s. They knew the car, and Breeding, from his prior visits to their filling station.

The driver, however, crouched down behind the wheel as it passed. There was a woman in the car, with red or dark brown hair, whom they were both sure was not Mrs. Breeding. Breeding did not return to his home on the night of June 28, 1958. He told police, and testified when he took the stand, that he was too drunk to know what he was doing from the time he was drinking beer with Wissman until he awakened at about 12 noon on Sunday, June 29, in his car, parked in school grounds about a mile from his home.

He claims that his only recollection is that he danced with a woman at a beer tavern sometime during the evening. He denied that he had ever seen Mrs. Cannon. He also remembered stopping at some house during the previous afternoon to fill his radiator with water. At about 2 P.M. Sunday afternoon he drove up to the home of his uncle, Richard Smith, and sat in his car until about 4 P.M., listening to the radio, when his wife came there.

He then drove home, and burned a pair of coveralls and the back seat cover of his car, claiming that he had “messed it up” during the night. He scattered the ashes in the barnyard. As police cars arrived at his home late Sunday night, he fled into the woods. During the next day, he crawled up to his uncle’s hog pen, and received cigarettes and water.

His uncle asked him what he had done, and his reply was given as “nothing,” or “I can’t tell you” or “Ain’t going to tell you,” or something like that. On redirect examination, the witness testified that Breeding said: “I can’t tell you” or “I ain’t going to tell you.” In spite of his uncle’s admonitions to give himself up, he fled again into the woods, and was captured in Delaware some three weeks later. There was