North Carolina, T-W, 1810-1848, Undated

eKtcsctedl 4/9/34

TABURN, Washington

(Need confirmation.) |

"At the Superior Court of Granville (Co., NC), indoe
Norwood presiding, the noted Washington Taburn was again
sentenced to be hanged on Wednesday, the 9th of April
ensuing." FPHEGISTER, Raleigh, NC, 3-18-183) (3:3.)

Horse Stealing. An theerrigible felon who
had previous been Cap! i4aly Convicted FIVE
times but Ge V4 off the hook each time.

The Tarborough Free Press, ¥/2S/3ay 1:3


30 Master Detective

you to aways remember how he kept saying that.” ;

Leaving the hospital, | picked up Deputy Herbert Harris
and Police Officer R. D. House and hurried to the crime
scene. I knew the exact spot—marked by the old tobacco
arn and the near-by fairgrounds.

We found where the car had stopped. A few feet away we
found where pointed shoe heels had aug, deeply into the
ground, indicating that Mildred Spencer had attempted to
resist being dragged away by her ravisher. Leading away
from the tobacco barn we found the track of a man’s shoe,
apparently a size 8% or 9.

Realizing that we could do little by means of flashlights, I

- ordered the spot to be guarded until daybreak.

But until then we exerted every effort to round up any
possible suspect in the area, with nothing tangible resulting.

At daybreak we again went to the scene. In the group of
investiga ing officers were Chief of Greenville Police, G. A.
Clark, Deputy Harris, Police Officers House and L. D. Page,
and Detective S. B. Dorsey.

| deployed each man in a careful search for any possible
clues. Evidence of the sordid tragedy in which the young
girl had been forced to take part was soon uncovered. Two
white earrings were found along the path. Approximately
one hundred yards from where the car had been parked we
found lying in the grass a torn under-garment and a slipper.
In the pathway, plainly visible, was a slippered imprint close
beside the impress of an unshod, feminine foot.

‘HE man’s tracks, uncovered’ by flashlight the previous
‘night, were also clearly visible in the soft dirt. While the
others combed the area for additional clues, Chief Clark and
I followed the tracks. The trail led down the path, across
the field, and thence to a ditch on the old Plank Road, lead-
ing from Greenville to Farmville. Here we clearly saw that
the fleeing killer had fallen into the ditch. Water stains and
dried mud clots lay alongside the Gpresite side of the ditch
and even trickled a few paces into the dirt highway itself.

The track continued along the Plank Road for several
hundred yards, becoming fainter in the hard surface of the
highway. Finally we lost it altogether.

“Did you notice the general direction of the tracks?”
Chief Clark asked.

“Toward the colored section of Greenville,” I replied.

Clark nodded his head slowly. The trail led unmistak-
ably in that direction. Could we safely conclude that the
rapist-murderer was a negro?

Hurrying back to Greenville, | ordered my entire force to
go into the colored section and drift around, contacting all
available stool-pigeons.

Three days of ceaseless, fruitless questioning went by.

Meanwhile the entire state had become aroused by the
heinous crime, and there was the usual wave of derogatory
criticism at our inability to crack the case. This bothered
me very little—in comparison with what followed. And
this was the fantastic belief voiced b people all over the
state, that Mildred Spencer had lied—that she was pur-

sely concealing the true story of what had occurred. Even
intelligent editors of certain Carolina newspapers, remem-~-

bering how in a recent criminal case a young girl had told
of her escort being murdered by an attacking negro in a
similar parked car affair, only to finally confess the young
man had been killed by her own father, countenanced the
rumors with veiled editorial comment. :

In short, thousands of people in North Carolina suddenly
turned against Mildred Spencer. | had known the girl since
she was a small child, and was convinced that she had told
me the truth. Her pitiful, hysterical condition on the fatal
night was far too real. Her courage in revealing . just
what had taken place could not be a ruse to cover up. what
is generally known in North Carolina as “a family affair.”

nd Mildred Spencer, hearing the wides read rumors,
cried her heart out; sobbing that she had told the truth and
nothing but the truth. With each day of investigation end-
ing fruitlessly, | became more determined than ever that
the girl whose life had been so ruthlessly shattered should
be vindicated.

On the sixth day we got our first tangible lead. One of
our informants reported that a man by the name of Grady
Lee Parker was accustomed to loitering on the road near

the fairgrounds. We lost little time in locating and ar- .

resting Parker.

Taken to the county jail and questioned, Parker denied
any knowledge of the crime. He told us that on the last
day of February he visited at one Preston Williams’ house,
then went to see his sweetheart for a while, and thence to a
movie. Returning to his home he changed clothes and went
to a dance on Pitt Street. ;

Parker, although extremely muscular, did not quite match
the description furnished by the girl. He was only about
five feet ten inches in height, and around 170 pounds in
weight. His shoes, too, were a bit smaller than the tracks
at the crime scene.

In checking Parker’s story we discovered he had told the
truth except in one particular thing—he had not gone to a
show. Between 9:30 and midnight, when he arrived at the
dance, his movements were unknown!

» That night I confronted Parker in his cell.
“Parker, you said you went to a show. Did your”

He lox
“Certa
“You'!
For a
it looks
going to
night Je
went ou
then car
feathers
I’ll steal
Was |

a minor


TATE, Willie, black, gassed NC
(Pitt) Nev. 20, 1936

By Sheriff

2 S. A. WHITEHURST
Pitt County
North Carolina

As told to
HERBERT RUDLIN

year

LEXANDER WARREN, handsome twenty-two-year-old
service station manager, glanced at his watch. In the
jade glow of the illuminated radio dial clamped on his
steering post, he saw that it was fifteen minutes before
midnight.

“Fifteen more minutes, darling, and we'll see old March
come in like a roaring lion,” he said lightly to the young girl
nestling close in his arms.

“Let's not wait, Alex. It’s getting late,” she replied. “Be-
sides, everyone else has left.”

The girl was Mildred Spencer, attractive and popular mem-
ber of Greenville’s younger set.

It was the last day in February, 1936. The day had been
mild and sunny, the night clear and crisp. The boy and the
girl had decided to drive down the old Greenville-Farmville
road, a favorite “lovers’ lane,” and listen to the radio.

They had stopped just off the road, close beside an old to-
bacco barn. Near by they caught the gleam of a white fence
that surrounded the fairgrounds; beyond that rose towering

pines, motionless beneath the star-studded heaven.

The music throbbed soft and low in the little coupé. The
boy and the girl started a long, lingering kiss.

Suddenly they heard the distinct snap of a twig—then what
seemed like muffled footsteps. Helen turned her head. Her .
eyes widened with fear. She screamed.

Simultaneously the right-hand door flew open.

The radio light glinted on the barrel of a revolver pointed
straight at Alex Warren’s heart. A fraction of a second later
there was a blinding flash, a deafening roar as the gun belched
flame and death.

Without a sound the boy slumped over the wheel.

A long arm reached within the car and caught hold of the
terrified girl’s wrist. A low, ee voice spoke: “Holler, d—n
you, and I'll kill you. . . . Now get out and come with me.”

Who really penned the
mystery noteatright?
This question was to
prove a baffling angle
of this many-sided
case. (Lower center)
Arrow indicates the
telltale footprints that
pointed out the direc-
tion taken by the
murderer after his
crime

Sd

Suddenly there was a
blinding flash—a girl
screamed—a gun
belched flame and
death to Alexander
Warren (right)

(COOP ag gee

MASTER DETECTIVE, March, 1937


Sheriff S. A. White-
hurst (in circle), who
tells this fascinating
story. He waited at
the scene of the crime,
as a decoy, to trap
the killer

(Top center) The
coupé, in which Alex
Warren and Mildred
Spencer rode when
death intervened,
parked at the spot in
the service station
where the hysterical
girl sobbed out thenews
of her lover’s murder

Numb with terror, the girl descended from the car. She gave
one last, despairing look at the still form of the boy, his head
twisted over the wheel. Sobbing, she went with the killer... .

So began one of the most villainous crimes ever perpetrated
in the history of North Carolina. And so began one of the
strangest of criminal dramas—the story of a girl who coura-
geously defied thousands of people to help the law bring a
fiendish killer to justice.

That same night, shortly. after midnight, someone knocked
on the door of my apartment in the Pitt County Jail at
Greenville. I had just undressed.

Going to the door I found Robert Gaskin supporting a young
girl who was sobbing.

“Sheriff, here is Mildred Spencer. Something terrible has
evidently happened. She drove up to Cox’s Service Station a
few minutes ago and said a man killed Alex Warren and at-
tacked her.”

I saw that the girl’s clothes were torn, her hair in disarray,
her face streaked with tears. She was clearly hysterical. No
use ns to question her now.

“Where is Warren?” I demanded.

“Back at Cox's Service Station—in his car.”

“Take the girl to the hospital, Bob. Tell them what hap-
pened. I'll be there as soon as I can.”

In a few minutes I had dressed and was racing in my car
to the filling station.

Arriving at the spot, | saw that a large crowd had gathered
around the death car, a 1934 Chevrolet coupé. There was no
question but that Alex Warren was dead. The bullet had
entered his right shoulder and ranged downward to his left
side. Apparently a main artery had been severed and he had
bled internally, for there was complete absence of blood.

After turning the body over to the coroner, | hurried to the
Pitt Community Hospital. By this time the young girl had
calmed down sufficiently to give me a somewhat coherent story
of what had taken place; of just how the fiend had shot down
Warren and then dragged her away

“How far from the car did he take you?” | asked her.

“Not very far,” she replied in a voice that still trembled. “I
begged him to let me go. He just laughed and kept saying.
‘All right, all right, all right.’ Then he assaulted me twice. A
car light flashed. He ran away. I ran back to Alex’s car. |

ushed him over and drove to Smitty’s place. There was no
ight there, so I drove the car to Cox's... .”

“Mildred, how did that man look?” ;

“He was tall and pened’ built—either a dark complected
white man or a negro—he didn’t talk very much like a negro—
but, Sheriff, I’ll always remember how he kept saying ‘All
right, all right, all right.’”

“Please try to, Mildred,” I said to her earnestly. “J want


ill youl”
yer (Jeft),
rrified girl
sr’s side

voice as being

om. Get down
nd he was gone.
Anderson at the
aid:

I went out for

; then suspicion.
ises for revenge?

as I left, keenly

2 again rang. It
vice was unmis-

1 Watson’s Café
2 receiver down

on standing un-
rer. Without a
the café proper.

Sitting indo-
uilt negro! Had
> Was this the
lings with cold-

d the man up in

taken the arrest

it iene 2

(Right) Deputy Herbert Harris.

He aided Sheriff Whitehurst in

solving this inexplicable mystery,

after it had seemingly reached an
impasse

stolidly enough, simply grumbling, “What’s the trouble
now!

Deputies Harris and Pierce joined me in my office to col-
lect all our information and arrange a definite line of ques-
tioning. While thus engaged, I received word that my
cook wished to see me. ce back the message that I was
too busy. Minutes later she had stepped into the office,
her eyes gleaming with suppressed excitement.

“Sheriff, I just done heerd something. | heerd that man

ou re brought in holler down to two men standing be-
ow his cell foh dem to go and tell his wife to keep her
mouf shut! Now, dat’s what I heerd and I bet it ain’t noth-
ing good!”

‘Letty, who were those two men? Did you ever see them
before?” I asked her.

“No, suh, I don’t know ’em.”

I turned to Harris and Pierce. “Harris, get Willie Tate’s
wife—before those men reach her if you can. Pierce, try
and find who those men were!”

The two deputies had hardly left when in walked two
colored women.

“I'm Willie Tate’s wife. This is my sister,” one of them
announced. “Why have you arrested him?”

I asked her to sit down.

“Mrs. Tate,” I commenced, “we have reason to believe
that your husband is implicated in a serious crime. I want
you to answer some questions and I want honest answers.”

“All right,” she answered simply.

At the end of a three-hour grilling, participated in by
Harris and Pierce, who had returned, Mrs. Tate had made
several damaging admissions, but none of these was con-
clusive evidence of Tate’s guilt. At first non-committal, and

Fiend of the Fairgrounds! 33

obviously anxious to protect her husband, she finally broke
down on our sppeal that she shouldn’t besmirch her own
good name and reputation—which she really enjoyed as a
trusted employee at Eastern Carolina State Teachers’ Col-
lege. Finally she told how Willie came home on the night
of the 29th in an ugly frame of mind.

“HE had mud all over him,” she related in a low tone,
“and told me never to mention it in case the police ever
questioned me.”
“Did you wonder why he said that?”
“Yes, I did, but I thought he had been in some little
scrape.

et tell you he had fallen in a ditch?”
0.

“Did you ask him how he got so muddy?”
“No, I didn’t ask him any questions at all. He was in a
terrible mood. I could see it.’
ee see him with a gun?”
)

“Does your husband own a gun?”

“Yes, he has a kind of a bright gun that he used to
map in a hat-box under our bed.’

uring the afternoon we searched the house from top to
bottom, but failed to find the
“bright gun.”

hotlist we were fully
prepared by this time to

uestion Tate, I called Chief

lark and Detective S. B.
Dorsey to my office. A few
minutes later Tate was led
in by Deputy Pierce. He was
nonchalant, and appeared
outwardly disinterested in
the proceeding. .

At the end of a two-hour
grilling he was still vehe-
mently denying any connection
with the murder. Asserting
that he had been in a pool-
room all evening on the night
of the crime, he defied us to
poe differently, and averred

e was home by eleven-
thirty.

“And my wife can prove
that. Go and ask her,” he
urged.

“Your wife has already been here, Tate,” I said evenly.
We saw his eyes flicker momentarily.

In an anteroom to my office several people were waiting:
Isaac Anderson and three youths, who before the crime,
had told me of being approached by a mysterious prowler.

We brought in the youths one by one. The first two failed
4 make positive identifications. The third looked closely at

ate,

“That’s the man who came near my car and who walked
away when I threatened to kill him,” he asserted.

“You're a liar,” said Tate calmly.

We then brought in Isaac Anderson.

“That’s the man who asked me what I was doing parked
out there,” he stated.

Tate spat contemptuously in a corner. “You're lying and
you know it,” he sneered.

‘Once more we began hammering at Willie Tate, but. he
stood his ground like a rock. I decided the time was ripe
for our trump card. I leaned over to Deputy Harris.

“Go and get Mildred Spencer,” I whispered.

Then I set the stage for what I expected would be the
most dramatic episode ever enacted in my office. First |
placed Deputy Pierce and Detective Dorsey with Tate in a
small room directly adjoining my office and closed the door.
Then I placed a chair beside the door facing toward the
outside.

A few minutes later Mildred Spencer, pale but calm,
walked in with Deputy Harris. I informed her of what
was in the offing, and asked her to sit in the chair and to
listen closely to Tate’s voice. She had previously listened
to the voices of Jesse Williams and Grady Lee Parker and
stated that neither was the man (Continued on page 68)


|, Parker denied
that on the last
Williams’ house,
and thence to a
clothes and went

not quite match
was only about
1 170 pounds in
than the tracks

| he had told the
ad not gone to a
he arrived at the

1.
Did your”

Fiend of the Fairgrounds! 31

He looked at me curiously.

“Certainly,” he answered.

“You're lying! You didn’t go to a show.”
_ For a few moments Parker said nothing. Then: “Sheriff,
it looks like I’m going to be charged with murder—so I’m
going to tell you the truth. I didn’t go to a show. That
night Jesse Williams and I left town around ten-thirty and
went out to Route 43. We stole about twenty chickens,
then came back to town, and dressed them. We threw the
feathers at the end of Pitt Street. Now that’s the truth.
I’ll steal but I won’t murder.”

Was Parker really telling the truth, or was he admitting
a minor crime to cover up a ghastly one?

Solicitor D. M. Clarke (above), who ably prosecuted
the case against the fiend of the fairgrounds

The next step was to take Jesse Williams into custody.
Arrested by Chief Clark and brought to my office, Williams
denied knowing anything of the murder of Alex Warren.
een due questioning he admitted complicity in the chicken
theft.

“But look here, Sheriff, this might mean something. A
girl by the name of Rosa gave me this note from Will

urnage-asking me if I want to buy a .38 pistol. Here it
fe pulled a crumpled note from his pocket which
rea

If you want to get a good .38 pistol | know where
there is one in pawn for $250.
Will Turnage

“When did you get this?” I asked him.

“The other day.’

“Who is Rosa?”

“That's all I know, Sheriff, just Rosa.”

Inasmuch as Parker and Williams were confessed part-
ners in chicken thievery, I locked them up in the same cell.
Meanwhile I sent Deputies Pierce and Harris to appre-
hend Will Turnage and the mysterious “Rosa.”

That night I again visited the scene of the crime in a
parked car. Each night I had driven to the fairgrounds
with a woman decoy, patiently waiting until long after mid-
night in the hope that the killer, spotting another lonely car,
might strike again. But nothing happened. Although we
had received reports from several young couples who as-
serted they had seen a man prowling near the parked cars
prior to the murder of Alex Warren, I failed to lure him
within Spornns distance. The couples stated that the man
always fled at the slightest sign of being noticed and that
he seldom appeared except on dark and cloudy nights.

The next day I received word that Parker and Williams
wanted to see me. Going to their cell, | was surprised at

- what they wished to say. Both men repudiated their pre-

vious statements, saying that they had not stolen the chick-
ens but had lent their aie to two other men who had ac-
tually committed the theft. At first their statements ap-
peared ridiculous. But on the other hand, | thought, both
men were smart. What had they cooked up in their cell
during the night? Why should they first admit a pett
theft and then deny it strenuously? Why should they ele
come being thrown right back into a murder picture?

That same morning Deputy Pierce brought in Will Turn-
age. Immediately the case took another baffling turn. Turn-
age, a suave-looking chap, swore the note was a fake, that he
had never written it. A comparison of handwritings seemed
to bear out the truth of his assertion. Who, then, had
written the note? Was the killer stupid enough to believe
he could get rid of the gun in a series of trade-ins? Was
the mysterious “Rosa” an accomplice of the murderer?

I called Chief Clark for a conference. Discussing the
contradictory evidence, Clark averred that Parker and Wil-
liams were trying to be smarter than they really were, that
their statements were ten per cent truth and ninety per cent
lies. I was inclined to agree with him.

“What do you think of the note?” | asked him.

“1 don’t think there’s anything to it. I’m going to quit
that angle of it,” he responded.

“But that’s the only workable clue we've uncovered so
far,” I protested.

“No, I think we’re wasting a lot of time trying to track it
down.”

“I can’t see it that way, George.
lead us somewhere.”

Chief Clark shrugged. | smiled grimly.

“George, that note may be a false clue, but it’s going to
keep tugging at me until tt makes me stumble into some-
thing. I just feel it.’ And I meant it. Members of the

] think it’s bound to

- police department, after days of fruitless effort, were begin-

ning to. believe active investigation should be partially
terminated. I couldn’t see it that way. To me it was still
the case of thousands of people against one girl and a cruel-
ly murdered boy. I was determined to prove the people
could be wrong.

‘On the other hand, if they were right, if it were true that
Mildred Spencer was shielding the identity of the killer, the
murderer would have to pay his debt to justice and pre-
sent whatever mitigating circumstances there were before
a court of law. At all events, if I could possibly prevent


32 Master Detective

it the midnight murderer would never go unpunished.

That night I sat in my office and reviewed the little
progress we had made in unravelling the case. A size 8%
or 9 shoe track that led towards the colored section of
Greenville; a mysterious loiterer who prowled near parked
cars; and a baffling note, the origin of which was untraceable.

Deputy Pierce walked in. We began once more to dis-
cuss the case.

“Then you are positive the killer’s trail led to the colored
section? Is that right?” Pierce queried.

“Right.”

“Okay. Here’s what we'll have to do. We'll have to find
someone in that neighborhood who has a pair of keen eyes
and keen ears. I know we've questioned nearly the entire
population, but there’s got to be somebody there who knows
something about this.” ;

Suddenly a recollection flashed through my mind. |
jumped up.

“There is!” | almost shouted. “There is such a person,
Frank, and we’ve got to find him!”

“Who is he?”

“Isaac Anderson!”

“You mean that will-o’-the-wisp bootlegger? He’s given
the department enough trouble without breaking his neck
now to help us.”

“I know, but it’s our one
hope. Anderson is clever,
sharp-eyed, knows virtually
everyone in the district. He
gets around. There's no tell-
ing how much he hears—or
knows.”

“Maybe you're right. But
we'll have a neat job finding
him,” remarked Deputy
Pierce gloomily.

Fortunately, we found An-
derson sooner than we ex-
pected. At one o'clock the
next day Deputy Pierce led
the man into my office. We
talked to him for nearly two
hours. But Anderson asserted
he had heard nothing that
would give us a clue to the
killer’s identity.

“But I’m willing to hel
ou in any way I can, Sheriff.

ou can believe that,” he
said as he was about to leave. He reached for his hat. Then
suddenly he turned back to face us.

“listen, Sheriff, | just remembered. About three weeks
ago | was parked right there at the fair rounds with my
girl, when a big negro, monn et like what Miss Spencer
says, walked up to my car. For a minute he didn’t sa
anything, just peered at us. Then he said: ‘What the hell
ie doing here?’ I replied, ‘I’m not bothering you, am 1?’

e muttered something and then walked away.”

At Anderson’s words I grew tense.

“Is that all he said? Did he say ‘All right’ when he
walked away?”

“No,” replied Anderson. “I didn’t hear him say that.”

“Do you know the man?”

“No, not by name—but I’ve seen him around town.”

“Have you seen him lately?”

“No, not lately.”

“All right. You say you want to help. Do this, then. As
soon as you spot him, call this office immediately. I'll keep
someone here all day and until midnight. Get it?”

“Sure. You can depend on me.”

That night Chief Clark called me and asked if I cared to
attend a State Highway Patrol outing. I told him it was
impossible at the moment, and informed him of my inter-
view with Anderson.

“That might be good information,” he. replied, “but I
have an idea Anderson has forgotten the incident already.
You can’t depend on guys like that.”

After Chief Clark fad hung up I began to wonder just
how much we could depend on Anderson after all. The
question was to be answered dramatically enough, and soon.

At noon the following day the telephone rang in my

Arrow points to the swing
on the porch of the café
in Greenville, North Caro-
lina, on which a_ suspect
wom was sitting when cornered
by the officials

“Holla and Vl kill you!”

warned the rapist slayer (Jeft),

as he dragged the terrified girl
from her dead lover’s side

office. Answering it, I recognized the low voice as being
that of Isaac Anderson.

“Sheriff, he’s sitting in the S—— lroom. Get down
here right away!” The telephone clicked, and he was gone.

Rushing to the designated place I found Anderson at the
door. For a moment he hesitated, then said:

“Sheriff, | guess you ought to kick me. | went out for
a minute and he disappeared.”

A wave of disappointment swept over me; then suspicion.
Was Anderson leading me on wild-goose chases for revenge?

“Are you sure you saw him?”

“I’m positive,” he replied.

“All right, keep your eyes open,” I said as I left, keenly
disappointed.

Exactly forty minutes later the telephone again rang. It
ihe in erson. The excitement in his voice was unmis-
takable.

“GHERIFF, cist saw him go into Sarah Watson’s Café
on Railroad Street—.” jammed the receiver down
and called to Deputy Pierce. “Come on!”

es a, to the place we spotted Anderson standing un-
assumingly against a building on the corner. Without a
word he pointed toward the porch adjoining the café proper.
I looked and felt my palms become moist. Sitting indo-
lently in a swing was a huge, powerfully built negro! Had
we at last cornered the fairgrounds fiend? Was this the
man who had ended his parked car prowlings with cold-
blooded murder?

Within ten minutes we had quietly locked the man up in
the Pitt County jail.

Giving his name as Willie Tate, he had taken the arrest

stolidly
now?”
Depu’
lect all
tioning.
cook wi
too bus
her eye:
“Sher
ou jus
ow his
mouf st
ing goo
‘Lett

announ
I ask
“Mrs
that yo
you to
“All
At t!
Harris
several
clusive


We |

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Fiend of the Fairgrounds!

(Continued from page 33)

who had shot Alex Warren.

Cautioning her to remain silent, |
opened the door to the little adjoining
office and confronted Tate, leaving the
door wide open. Mildred, sitting in the
chair, was invisible to the suspect. | be-
gan asking questions that would force him
to return answers somewhat similar to the
remarks the killer had made while drag-
ging the girl from the car. ‘

Suddenly we heard the excited voice of
Chief Clark.

“Hey, wait a minute! Quick, she’s
fainted!”

I rushed into the other room and found
Mildred Spencer unconscious. Swiftly we
worked to revive her. In a few moments
she had regained consciousness.

“I’m sorry, Mildred, but you’ve got to
pull yourself together,” | told her. “This
1s important.”

“! know, I know!” she moaned. “But
that voice—that man—he’s the one—” she
shuddered visibly. We grew tense. Swift-
ly we worked to completely restore her.

Several minutes later she urged us to
go ahead. I determined to make the or-
deal as short as possible and forego fur-
ther questioning.

“WYILDRED, you’ve got to face that
man,” I told her. A look of horror
and fear passed over her face.
“All right,” she finally whispered.

I ordered Tate to be brought in. Mil-
dred’s face blanched when he appeared.

“Say ‘All right’ three_times, Tate,” |
ordered him crisply. Tate sneered, re-
maining silent.

“You want us to make you say it?”

“All right, all right, all right!” he burst
out, his eyes narrow with hate.

“You are the man! .I’ll swear to my
dying day your voice is that of the man
who killed Alex and assaulted me,” Mil-
dred cried, her voice tense with emo-
tion.

We sent the girl home, and commenced
an intensive, ceaseless grilling.

At Mildred’s dramatic accusation, per-
spiration had covered the suspect’s face.
As we continued to hurl questions at him
we saw him become soaked with it. His
hands began to clench- and unclench ner-
vously. He licked his lips repeatedly. |

Arrow points to the cell in the Pitt /
County Jail where the murdering’
rapist was held

saw that it was the beginning of the end.
Finally he cracked.

“All right, you win!” he snarled. “I
was there—but | didn’t kill him. You
hear me, | didn’t kill him!” he fairly
shouted.

Thirty minutes later we had Tate’s con-
fession involving two other men. The
confession read:

“IT am twenty-nine years old and have
been in North Carolina twenty months. |
worked as a janitor for Eastern Carolina
State Teachers’ College for nineteen
months.”

“Where were you on the night of Feb-
ruary 29th?”

The pool parlor in Greenville, North
Carolina, where the trail of the mur-
derer was picked up

“By the fairgrounds in an open field
near a big tobacco barn.”

“Anyone with you?”

“Yes. Otis Watson and George Lee.”

“What was your purpose?”

“To rob.”

“Go on.”

“We were lying in the field. I was half-
way asleep and Otis said he seen a car
and said, ‘Get up.’ And | got up and we
all went to where he seen a car turn in,
and there was a car there behind the
tobacco barn. There was a man and wo-
man in the car.

“George opened the door and Otis shot
the man, and I and George pulled the
woman out of the car and up the road.
George tore some of her clothes off and
threw her down.

“I saw the light of a car coming to
us. Otis whistled. I ran across the field
to the highway to Greenville. Then |
went to my house where I washed off my
shoes.”

Although Mildred Spencer had repeat-
edly asserted that only one man had com-
mitted the fiendish crime, we were forced,
by Tate’s confession, to consider whatever
truth there might be in his statement that
he had accomplices.

Scouring the negro quarter for the two
men, we arrested them in short order.

Grilled at length, they persistently de-
nied any part in the crime, asserting that
Tate was placing the blame on them to
save his own skin. However, they ad-
mitted having been with Tate the pre-
vious night on a fruitless objective to high-

‘jack some liquor in the neighborhood of

the killing.

So carefully had we guarded news of
Tate’s arrest, and of Watson and Lee,
and so earnestly had we cautioned Mil-
dred Spencer, Anderson, and the three
youths against revealing what had taken
place, that not until three days later,
when the Grand Jury returned a formal

March, 19.

indictment
suspected

We wer
followed.
in various
the lynch-
the jail ar
they had }

1 had lit
of justice.
dication be
an infuriat
Tate woul
yond inten
belief that
frame-up t
power. T
Wipe out fc
Tate, and
heinous cri
and Lee h
I sincerely
vious atter

On Marc
were joint
murder an

HREE .

Superio:
heavily arr
bers of the
jury returr
der agains!
after retire

“You ha
possible vi
Frizelle qt
and honon
helped just
Silently |
zelle, after
the crime,
to die by
Raleigh’s C

The next
convinced
Lee had nc
der of Ale:
imprisoned
had planne
weapons, al

searches; it
stall keepe:
and hoboes
But the n
over the co
Southend-o)
the east. B
villages and
fields, ditch
Was survey
daily tides
and forth
watched at
“Find Fu
If the m
double bac
events cons}
was soon ki
Southend.
liceman in 1
Furnace hac
formation al
together:
He had a:
day, the 5tl
telegram to
It was too |:
the boats, o
safe for a
seemed to s
about findin;
night and bc


g of the end.

snarled. “I
| him. You
!” he fairly
d Tate’s con-
men. The
ld and have

ty months. |
tern Carolina
for nineteen

ught of Feb-

lle, North
the mur-
fe)

1 open field

eorge Lee.”

I was half-
seen a car
t up and we
car turn in,
behind the
nan and wo-

id Otis shot

pulled the
ip the road.
thes off and

’ coming to
oss the field
le. Then |
shed off my

had repeat-
an had com-
were forced,
ler whatever
tement that

for the two
‘t order.

‘istently de-
serting that
yn them to
r, they ad-
te the pre-
ive to high-
borhood of

ed news of
1 and Lee,
tioned Mil-
the three
had taken
days later,
d a formal

March, 1937

indictment, did news of the arrest of the
suspected killers reach the public.

_ We were prepared for the uproar that
followed. The three men had been lodged
In various prisons in distant counties, and
the lynch-mad mobs that milled around
the jail and the courthouse soon realized
they had been balked.

I had little sympathy with their means
of justice. Mildred Spencer needed vin-
dication before a court of law, not before
an infuriated, vengeful mob. Lynching of
Tate would have accomplished little be-
yond intensifying North Parolina’s general
belief that he had been a victim in a
frame-up to shield a killer of influence and
power. This belief | was determined to
wipe out forever, for in my opinion, Willie
Tate, and Tate alone, was guilty of the
heinous crime. His assertion that Watson
and Lee had done the actual killing was,
I sincerely believed, a desperate and ob-
vious attempt to save his life.

On March 16th, Tate, Watson, and Lee
were jointly indicted and charged with
murder and assault.

THREE days later a packed Pitt County

Superior Courthouse, surrounded by a
heavily armed cordon of police and mem-
bers of the State Highway Patrol, heard a
jury return a verdict of first-degree mur-
der against Willie Tate, twenty minutes
after retirement.

“You have returned the only just and

ossible verdict,” remarked Judge Paul
=rizelle quietly. “You have vindicated
and honored the courage of a girl who
helped justice bring a murderer to ba 4
Silently I nodded my head. Judge Fri-
zelle, after reviewing the heartlessness of
the crime, sentenced the convicted killer
to die by asphyxiation on April 24th at
Raleigh’s Central Prison.

The next day, Solicitor D. M. Clarke,
convinced that Otis Watson and George
Lee had not been implicated in the mur-
der of Alex Warren, asked that they be
imprisoned on their admissions that they
had planned a robbery with concealed
weapons, and as a result the killer’s pals

Master Detective

Pitt County Court House where the
fiend of the fairgrounds was tried

were given two years at hard labor.

One week before he was scheduled to
die, Willie Tate filed notice of appeal
through his attorney. Inasmuch as the ap-
peal was filed long after the permitted
deadline, the case was thrown into the
hands of Attorney General A. A. Seawell.
Meanwhile, Tate's day of execution was
automatically postponed. :

But the sex-mad fiend of the fairgrounds
did not escape the death penalty. He died
on November 20th, in North Carolina’s
new gas chamber at Raleigh. Facing death
indifferently, his last words were a ques-
tion as to where the gas would come from.

Note: Out of consideration for the cou-
rageous girl who was one of the victims
in this shocking case, ber photograph has
not been used and the name given her
is fictitious ——Eb.

The Riddle of the Painted Body

(Continued from page 43)

searches; inquiries of road-users, coffee-
stall keepers, rooming-house proprietors
and hoboes.

But the most intense search was pressed
over the countryside between London and
Southend-on-Sea, nearly forty miles to
the east. By road and rail, in towns and
villages and obscure hamlets, in woods and
fields, ditches and hedgerows, the ground
was surveyed by thousands of eyes. The
daily tides of workers that surged back
and forth from the Essex suburbs were
watched at.every avenue of approach.

“Find Furnace!”

If the murderer’s plan was either to
double back or to get aboard a_ ship,

events conspired to frustrate him, for it -

was soon known that he was actually in
Southend. A woman rushed up to a po-
liceman in that town with the story that
Furnace had been in her house. Her in-
formation allowed these facts to be pieced
together:

He had arrived in Southend on Thurs-
day, the 5th, about noon, and sent the
telegram to the rooming-house landlady.
It was too late that day to seek a job on
the boats, or maybe he thought he was
safe for a few hours. His next action

seemed to suggest this, for when he set |

about finding somewhere to sleep for the
night and booked a room in a house oc-

cupied by a Mrs. Lilley, he again used
the name of Rogers.

He emerged from the house after a short
interval, and found the streets were re-
sounding with the newspaper-sellers’ hoarse
shouting. The evening yj had just
arrived on the train from London. Their
news was that the body in the blazing
shed had been definitely proved to be
Spatchett’s; that the police wanted to in-
terview Samuel James Furnace. °

ITH a sudden heart-sinking the killer

hurried away from the shouting, and
the sight of people eagerly buying papers
with his own picture printed large upon
the front pages.

His night at the rooming-house must
have been an eternity of sleepless, ° tor-
turing fears.

It happened that the landlady was too
busy next morning, Friday, to read her
daily paper as usual, and it was lying
unopened near Furnace as he ate the
breakfast. she served him. She did not
know then that in it was a photograph
of her new lodger. But Furnace did.

With outward calmness he announced a
change of plan about stopping for a week,
paid his bill and left.

A few minutes later the landlady took
up the unopened paper, and then, ex-

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188 SOUTIT BASTERN REPORTER

92 XE

i i “T was cz ‘40 o’clock on
“T live in Greenville and am nineteen I was called oe Nae pa tale
I knew Alexander War- the might of February 28, 36. we
the door and found Miss Phelps and some
gentlemen in an automobile near the jail.
92. She was very nervous. She told me that
2
che had been assaulted. I went to Dal
Coxe’s filling station, and there found the
dead body of Alexander Warren. ie had
ANE EG Rib z) 4. «ex been shot in the right shoulder, The p1s-
to Dal Coxe’s» Filling Station, where we ee hed tak ie Rarer goatee
Shor hs cadlerat j tol ball had c artery
met Alexander Warren. We rode aroun ie: ; Siac 4 Gaaed
torether in an automobile until about 10:30 heart, and had lodged eh Sager Aas
ba 1 1 Caswell Brown and Miss the body over to the undertaker, a “
e aa NS 1c aswe , « 4 - a ; se : hss ‘
Pee xr Ries and L then drove in back to the hospital, where I ern nee
ae ene gets gs j iss Phelps “n went to the place
his automobile out on the road leading spite See: rome fal ees ;
: s,ir Where she said s ; assat :
allel: ss
§ » Falkk hway to the Fair : Perea
a ‘ey se eaeans ; Aine Automobile on found where an automobile a been sey
ay cea: nds : > TO? aw tracks of a man anc
this road, and turned on the radio. 1 was ed on the road. I saw tra Ra APipsn
oe 1 id him.-on his ‘right. Ashe 2. woman leading from oe a :
iueken ak aA Sop. vet ‘ ‘Te he sen parked for a dis-
was dialing the radio, the right-hand door the cepeg: Page k ne ae
of the automobile was opened cg me ae * My yienie ase (ere oh Sade
a mé is ¢ around my shoulder, *'5" a strug Ria =
: ev; ie bat aie out, and Alex start- by the tracks. I found articles of under
et te an eae Pe wheel. At that clothing which appeared to have “— ae
Oy a : f . “TS a woman. ‘hen
moment, a pistol was fired. The man then feaat ie ete dl he cccchabdale ‘Soak
dragged me from the automobile, and as- Sawer Ist agp fare seratches: and
Sin He did not sueceed in his at- night at the jail, there were scratches ¢
mes ma l Stoninted to escape bruises on her person. Her clothing hac
tempt to rape me. i SSCi

from him, and he kept saying to me, ee been torn.

ic All right, all right” An automobile es a #
Yea 6. white he was attempting to rape rested the ee Rae ret v
me, and he ran off. 1 returned to. the Greenville, anc Rs ee ; uate S
automobile, and found Atex unconscious. sent for wie janes ti 70 Sie pea:
I did not know that he was dead. I got tito) my office, I rogacstee 13 s ‘ sa oe a
the automobile and pushed Alex from ui- the office near a pt pies iat sre
der the wheel. I then drove to Dal Coxe’s or partly ere sh A ayer ae
filling station. I there discovered. that I questioned ve ae Sages eee
Alex was bleeding. Some one took me manoam my Lee =e fas a
first to the Sheriff’s office, and then to the any knowledge 0 the crime. she
had heard his voice through the door, Miss
Phelps told me that she recognized his
voice as the voice of the man who had
shot Alexander Warren and assaulted her
on the night of February 28, 1936. She
said, ‘Sheriff, that’s the man.’ I said, ‘Let’s
be sure’ She replied, ‘I am positive. She
was then taken into the presence of the
defendant and said to him, ‘You are the
man who killed my companion and assault-
ed me on the night of February 28, 1936.’
He denied that he was the man, but sub-

years of age.
ren. Ile and T were engaged to be mar-
ried to each other.

“TL saw him on the night of February
1936. Caswell Brown and Miss Mar-
garet Ilardy came to my home at about
8:30 o'clock that night. [ went with them

T ar-

“A few days later—within a week

hospital. 1 showed the Sheriff the seratch-
es and bruises om my person and told him
what had occurred.

“Several days after that night, at his
request, I went to the Sheriff's office.
When I get there he told me to stand out-
side the door. The door was cracked. As
L stood there I heard the voices of two
persons who were talking in the office. [
recognized the voice of one of these per-
sons as the voice of the man who had
yt a BoE se ctincis! a dele sequently admitted to that he aes

as a ce es Sal res vhe sxande arrcn was §
cutrletnes the Sheriff. [t was the voice isogit yxenr 2 Dees dn Sy
of the defendant. IT then saw the defend- and when. ‘ : Sie
ant and identified him by his voice and by “A few riinutes after Miss Se a
his physique as the man who shot Alex- ih ntitied him as_ the man who oe . -
ander “Warren and assaulted me. 1 am ard killed Alexander Warren, the de end-
positive that the defendant 1s the man. ant made a statement to sabiley aes

S A. Whitehurst, sheriff of Pitt county, ence of Mr, George Lak Re AY ay 2
Se retarv, Miss Barr. No threats were made

a withes 7 > state, testificd as fol- :
A ayettitens Tor FRE ATE or rewards offered to the defendant to

lows:

STATE
18

y. TATE N.C. 93
8 S.E,

induce him to make this statement. The court on behalf of the defendant in sup-
statement was written down by Miss Barr port.of these assignments of error. Rule

and signed by the defendant.”

The written statement signed by the
defendant was offered in evidence by the
state. In this statement the defendant said
that on the night of February 28, 1936, he,
Otis Watson and George Lee were at a
tobacco barn near the public road leading
from the Falkland Highway to the Fair
Grounds; that their purpose was to rob
persons who might pass along the road
in automobiles; that when an automobile
in which a man and woman were riding
stopped on the road and parked, he, Otis
Watson, and George Lee went to the au-
tomobile. He said: “George Lee opened
the door, and Otis Watson shot the man.
George pulled the woman out of the auto-
mobile. He and I dragged her up the
road a little piece. George tore her bloom-
ers off. We both threw her down and
tried to get on her. Otis saw an auto-
mobile coming and whistled. I ran across
the field to the road. I fell into a ditch
and got my shoes muddy, I then went
home and washed my shoes.”

There was evidence offered by the state
tending to corroborate the testimony of
both Miss Phelps and Sheriff. Whitchurst
both as to the commission of the crime
charged in the indictment and as to the
identity of the defendant as the man who
committed the crime.

No evidence was offered by the defend-
ant. On his appeal to this court he as-
signs as error (1) the admission, over his
objections, of evidence tending to show
that Miss Phelps told the sheriff in the
absence of the defendant that she recog-
nized his voice, while he was talking in
the sheriff's office, as the voice of the man
who had shot and killed Alexander War-
ten on the night of February 28, 1936;
(2) the admission, over his objections, of
evidence tending to show that the de-
fendant had been frequently seen in the
nighttime at or near the place of the homi-
cide, during the two or, three weeks preeed-
ing the homicide; and (3) the admission,
over his objection, of the statement signed
by the defendant, admitting that the de-
fendant was present at the time the homi-
cide was committed.

{1] These assignments of error cannot
be sustained. No reasons are given or
authorities cited in the brief filed in this

28, Rules of Practice in the Supreme Court.
200 N.C. 831.

[2] Miss Phelps at the trial identified
the defendant as the man who committed
the crime charged in the indictment. The
testimony tending to show that she told

the sheriff in the absence of the defendant!

that the voice of the defendant, which she
heard while he was talking in the sheriff's
office, was the voice of the man who had
shot and killed Alexander Warren on the
night of February 28, 1936, was competent
as evidence tending to corroborate her tes-
timony at the trial.

[3] The testimony of Ike Anderson that
he had seen the defendant at least ten
yor twelve times near the scene of the
homicide, during the nighttime, and with-
in a few wecks prior to the homicide, and
that on one occasion about two weeks be-
fore the homicide, the defendant had fired
a pistol at the witness as he passed the
scene of the,homicide in his automobile,
was Basia as evidence tending to
identify the defendant as the man who
committed the crime charged in the in-
dictment. See State y. Miller, 189 N.C.
695; 128°S. Be 1,

[4] There was no evidence tending to
show that the defendant made the state-
ment which was offered in evidence by the
state under the influence of violence or
threats of violence, or under the induce-
ment of a reward or the hope of a re-
ward. The uncontradicted evidence shows
that the statement was made, and when
reduced to writing, was signed by the de-
fendant, freely and voluntarily. For that
reason it was competent as evidence against
the defendant, although made by him to
the officer who had him in custody. See
State v. Grier, 203 N.C. 586, 166 S.E.
595.

[5] All the evidence at the trial showed
that the homicide was murder. There was
no evidence tending to show that the homi-
cide was manslaughter. There was there-
fore no error in the instruction of the
court to the jury with respect to the ver-
dict which they should return, on the facts
as they should find them to be from al!
the evidence. See State v. Satterfield, 207
N.C. 118, 176 S.E. 4066.

The judgment is affirmed,

No error,

ee ae

Pt

Es Ba esses

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, age Beene: Page

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PIE pags n

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COE SER TORIES Ree LED

SRR eag oni: i

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866 N.C.

There was evidence of assent on the part
of the plaintiffs and evidence contra. The
court found as a fact that caveators were
fully advised of the course counsel pro-
posed to follow and that they assented.

(7, 8] Counsel employed to conduct
litigation has complete authority over the
suit, the mode of conducting it, and all
that is incident to it, such as withdrawing
the record, withdrawing a juror, calling
no witnesses, and other matters which
properly belong to the suit, and the man-
agement and conduct of the trial. Bank
of Glade Spring v. McEwen, 160 N.C,
414, 76 S.F. 222, Ann.Cas. 1914C, 542. He
has the free and full control of the case
in its ordinary incidents, and as to those
incidents is under no obligation to consult
his client. Gardiner v. May, 172 N.C. 192
89 S.E. 955.

[9] The attorney may exercise his dis-
cretion in all the ordinary occurrences
which take place in a cause and may make
stipulations, waive technical advantages,
and generally assume the control of the
action. Weeks, Attorneys at Law, p. 385,
Gardiner v. May, supra, Harrington v.
Buchanan, 222 N.C. 698, 24 S.E.2d 534.
If the clients are aggrieved by his conduct
in such matters, they must look to him for
recompense.

The judgment below must be affirmed.

foN__

o © ney NUMBER SYSTEN b

samme

Jullan H. SWAIN v. E. P. COHOON.
No. 22,

Supreme Court of North Carolina.
Sept. 20, 194-4.

_ Appeal from Superior Court, Tyrrell
County; W. HL. S. Burgwyn, Special
Judge.

Civil action to recover for Irish potatoes
sold and delivered by plaintiff to defendant
during the 1943 season,

From verdict and judgment in favor of
plaintiff, the defendant appeals, assigning
errors.

i, L. Swain, of Williamston, for plain-
tiff-appellee.

31 SOUTH EASTERN REPORTER, 2d SERIES

J. C. Meekins, of Columbia, for defend-
ant-appellant.

PER CURIAM.

The case presents no more than a con-
troverted issue of fact which the jury has
resolved in favor of the plaintiff in a trial
free from reversible error.

The verdict and judgment will be up-
held.

No error,

Cem

224 N.C. 473
STATE v. JONES.

No. 145.

Supreme Court of North Carolina.
Sept. 20, 1944.

1. Criminal law >1106(3)

? Where no case on appeal was served
within the time agreed upon in court below
and no steps taken to protect the appeal,
motion to docket and dismiss the appeal
was allowed.

2. Criminal law C>1106(3), 1182

In a capital case, although no steps
were taken to perfect appeal, record was
examined in accordance with court rule,

and where no error appeared conviction
was affirmed.

—_—_-—_____.

Appeal from Superior Court, Halifax
County; W. J. Bone, Judge.

Sam Jones was convicted of murder in
the first degree, and he appeals.

Affirmed.

Motion by State to docket and dismiss
defendant’s appeal.

Harry M, McMullen, Atty. Gen., for ap-
pellee.

PER CURIAM.

[1] The defendant was convicted of
murder in the first degree. Sentence of
death by asphyxiation was imposed. De-
fendant gave notice of appeal to the Su-
preme Court, but no case on appeal was
served within the time agreed upon in the

WILLIAMSON vy. WILLIAMSON N.C. 867
31 S.E.2d 367

Court below, and no steps have been taken
to perfect the appeal.

[2] The Attorney General moves to
docket and dismiss the appeal. This motion
must be allowed, but, according to the rule
of the Court in capital cases, we have ex-
amined the record to see if any error ap-
pears. We find no error in the record.
Appeal dismissed.

Judgment affirmed.

224 N.C, 479
STATE v. TAYLOR.

No. 434.

Supreme Court of North Carolina.
Sept. 27, 1944.

Criminal law €1106(3)

Defendant having failed after convic-
tion and notice of appeal in a capital case
to file proper case on appeal and his at-
torncy having given notice that he had
abandoned appeal, reviewing court after
examining record and finding therein no
error will, on motion of Attorney General,
docket and dismiss the appeal.

—_—_—_>--—-

Appeal from Superior Court, Wake Coun-
ty; J. Paul Frizzelle, Judge.

James Taylor was convicted of murder,
and he gave notice of appeal. On motion
by the State to docket and dismiss appeal.

Appeal dismissed. Judgment affirmed.

Harry McMullen, Atty. Gen., and George
B. Patton, Asst. Atty. Gen., for the State.

PER CURIAM.

The defendant James Taylor was tried be-
fore His Honor J. Paul Frizzelle and a jury
at July Term, 1944, of Wake Superior Court
upon a bill of indictment charging him with
the murder of one J. L. Taylor. The jury
returned verdict of guilty of murder in
the first degrea, as charged in the bill
of indictment. Thereupon judgment was
rendered sentencing the defendant to death
by asphyxiation, as provided by law. From
this judgment defendant gave notice of ap-

peal to the Supreme Court. However, no
case on appeal has been docketed in this
Court and no case on appeal has been filed
in the office of the Clerk of the Superior
Court of Wake County. The time agreed
upon for perfecting appeal has expired, and
the attorney representing the defendant
has notified the Clerk of the Superior
Court of Wake County that he does not in-
tend to pursue the appeal, finding in the
record no ground therefor.

The defendant having failed to file prop-
er case on appeal and his attorney having
given notice that he had abandoned the ap-
peal, the Attorney General moves that the
case be docketed here and the judgment of
the Superior Court affirmed under Rule 17.

Before ruling on this motion we have
carefully examined the record and find
therein no error. The motion of the At-
torney General to docket and dismiss the
appeal is, therefore, allowed. State v. Wat-
son, 208 N.C. 70, 179 S.E. 455.

Appeal dismissed. Judgment affirmed,

CD

224 N.C. 474
WILLIAMSON v. WILLIAMSON et al.
No. 165.

Supreme Court of North Carolina.
Sept. 27, 1944

1. Judgment C87

Where it was undisputed that no com-
pliance was ever made with conditions
precedent to signing of consent judgment
in action for foreclosure of a tax lien, su~
perior court clerk properly refused to sign
the purported consent judgment.

2. Judgment ©—87

Consent of parties must still subsist
at time court is called upon to exercise its
jurisdiction and sign consent judgment.

3. Judgment C87 ;

Superior court clerk properly refused
to sign purported consent judgment in ac-
tion for foreclosure of tax lien, where de-
fendant’s consent thereto had been with-
drawn at time clerk was called upon to
sign the purported consent judgment.

*tH6T SE TequeAoN UO (*69 EXEM) dSON *xAUdse SyoeTq Ssouep SUOTAVI

ONIVERSITY OF ALABABA

SCHOOL OF LAW


See at

99 XC. 188 SOUTH EASTERN REPORTER

told me it was his wife’s car, his car that
ran into me, driven by his wife, and he
wanted me to stay there for treatment, and
he would take care of the damage, it was
her fault.”

We think the question of contributory
negligence on the part of plaintiff was for
the jury to determine. The charge of the
court below is not in the record, and the
presumption of law is that the court charg-
ed the law applicable to the facts.

[4,5] The defendants contend — that
plaintiff testified on cross-examination that
he saw the feme defendant, but, notwith-
standing that, he ran in front of her, and,
therefore, as a matter of law, was guilty
of contributory negligence. But plaintiff
also testified: “I saw Mrs. Cheatham 60 or
7() feet from the intersection. I was in the
intersection at that time. I started to pick
up. I was almost clear of the street when
she hit me. She ran Straight into me, did
not turn to the right or left. I don’t think
she saw my cart. If she had been looking
to the front there was nothing to keep her
from secing it. * Mrs. Cheatham
did not slacken up @ pit. She was going
40 miles an hour. It broke my car in
two.”

This discrepancy Was for the jury. Tay-
lor v. Rierson, 210 N.C. 185, 189, 185°S.5.
627. The presumption of law is that all
these matters were left to the jury on @
charge free from error.

{6| (2) As to the “family purpose doc-
trine”: R. Ay Powers testified, in part: ‘i
know Mr. J. T. Cheatham. The first time
L imet him was at Ilerring’s Drug Store in
Wilson. I was with Mr. Matthews. Mr.
Cheatham’s som was with him. 1 heard
Mr. Cheatham and Mr. Matthews talk to-
gether. Mr. Cheatham said that he main-
tained three automobiles at his home.
That this particular car (Mord) that. his
daughter won it in a contest. Ile said she
did not ever drive except by consent of he
and his wife, and he maintained the car the
same as the rest of them. * * * Jn fact
he said he paid the taxes on this automo-
bile along with his other, and L think he
made the statement that he-paid the in-
surance. I will not be positive.”

J. D. Davis testified, in part: “T am in
the garage business known as the Davis
Auto Company, on Green Street, at Wil-
son. I know Ales: yy, Cheatham, Mrs.
Cheatham and Miss Martha Cheatham. I
remember the Ford automobile of Miss

Cheatham that she won in a newspaper
contest. From the time of the winning of
the car and November, 1933, I had occa-
sion to service and repair the car at differ-
ent times, Mr. Cheatham brought the car
to me niost of the time. Mrs. Cheatham
has a few times, I think. I would say Mr.
Cheatham brought the car in half a dozen
times for servicing, and he paid the bills
every time. He paid all the pills on all the
cars. He is still a very good customer of
mine. I have mostly seen Mr. Cheatham
drive the Ford car.

Ernest Barnes testified, in part: “I have
seen different members of the family driv-
ing it, Mrs. Cheatham mostly. I have seen
Mr. Cheatham’s daughter driving it and
Mrs. Cheatham, but, so far as the others,
1 would not be positive. That was before
the accident.”

The evidence succinctly, as to the “fam-
ily purpose doctrine”: (1) Defendant, J.
T. Cheatham had a garage at his home in
which this car was kept, with two others.
(2) His daughter, who owned the car
(won in a newspaper contest) was about
16 years old, a minor at the time. (3)
Different members of the family drove the
car, including the feme defendant. (4)
Ile furnished the gasoline and repaired the
car. (5) At the time of the collision the
feme defendant had gone for a dress that
belonged to the daughter and was to bring
her home from her work. (Oy sLhat=J a
Cheatham paid the taxes on the car and
returned same in his name. (7) He se-
cured, or attempted to secure, insurance On
the car in his own name. (8) That no one
used the car without his or his wife’s con-
sent. (9) After the accident he had the
title placed in his name.

In Watts v. Lefler, 190 N.C. 722, at
page 725, 130 S.E. 630, 632, this court
quotes with approval the following state-
ment from Berry on Automobiles (4th
Ed.) § 1280: “The rule is followed in some
of the states in which the question has
been decided, that one who keeps an auto-
mobile for the pleasure and convenience of
himself and his family, is liable for in-
juries caused by the negligent operation of
the machine while it is being used for the
pleasure oF convenience of a member of
his family.”

}uddy’s Encyclopedia of Automobile
Law (9th Ed.), vol. 7-8, p.-324, states the
rule: “The person-upon whom it is sought
to fasten liability under the ‘family car’
doctrine must OWN, provide, or maintain an

STATE vy. TATE
a N.C. 91

automobile for the general use, pleasure
and convenience of the family. Liability
under this doctrine is not confined to own-
er oF driver. It depends upon control and
use,

We think there was sufficient evidence to
he submitted to the jury that J. T. Chea-
tham controlled and used the car as a
“family car,” and the family purpose doc-
trine was applicable to the facts in this
case. On this aspect it is presumed that
the court below charged the jury on the
law applicable to the facts.

[7] It is well settled that the “family
purpose doctrine” is the law in this juris-
dichon. Robertson v. Aldridge, 185 N.C.
292, 116 S.E. 742; Wallace v. Squires, 186
N.C. 339, 119 S.E. 569; Watts v. Lefler
100 N.C. 722, 130 S.E. 630; Grier v. Wood-
side, 200 N.C. 759, 158 S.E. 491; Eaves v.
Coxe, 203 N.C. 173, 165 S.E. 345; Lyon v.
Lyon, 205 N.C. 326, 171 S.E. 356; Byers
vy. Brawley, 207 N.C. 151, 176 S.E. 255;

In the judgment of the court below, we
sce no error.

CONNOR, J., dissents,

i

219 N.C, 618
STATE v. TATE.
No. 291.

Supreme Court of North Carolina.
Noy. 4, 1936.

1. Criminal law @=1130(5)

_ Supreme Court will not sustain those
assiguments of error in support of which
no reasons are given or authorities cited,
as required by court rule (Rules of Prac-
tice in the Supreme Court, rule 28).

2. Witnesses €=414(2)

Evidence that witness told sheriff out-
side presence of defendant that defendant
was man who murdered her companion and
assaulted her held admissible to corroborate

ble to identify defendant as man who com-
mitted murder,

4. Criminal law €=519(3)

In prosecution for murder, written
statement of accused admitting intent to rob
deceased and assault on deceased’s female
companion, but charging accomplice fired
shot which killed deceased, held admissible
under uncontradicted evidence statement
was made freely and voluntarily, though
made to officers while in their custody.

5. Homicide €=309(5)

In prosecution for murder, where ac-
cused opened door of parked automobile, as-
saulted female companion of motorist, shot
motorist when he attempted to interfere,
and continued assault, there was no evi-
dence requiring submission of issue of man-
slaughter to jury.

—_——-———— +

Appeal from Superior Court, Pitt Coun-
ty; J. Paul Frizzelle, Judge.

Willie Tate way, convicted of murder,
and he appeals.

No error.
This is a criminal action in which the
defendant, Willie Tate, was tried on an
indictment for the murder of Alexander
Warren.
A There was a verdict that the defendant
is guilty of murder in the first degree.

From judgment that he suffer death by
means of asphyxiation, as prescribed by
statute, the defendant appealed to the Su-
preme Court, assigning errors in the trial.

S. O. Worthington, of Greenville, for
appellant.

A. A. F. Seawell, Atty. Gen., and Harr
McMullan, Asst. Atty. Gen., for the ae

CONNOR, Justice.

At the trial of this action, the evidence
showed that at about 11 o’clock on the
night of February 28, 1936, as he sat in
his automobile which was parked on a pub-
lic road near the city of Greenville, in
Pitt county, N. C.,, Alexander Warren was -
shot and killed by a man who had sudden-

her testimony identifying defendant at trial. ly opened the right-hand door of his au-

3. Homicide €>170

tomobile, and after shooting the deceased,
had assaulted a young woman, who was

Sansa that accused had been seen Sitting beside him> at the time he was
any times within few weeks prior to mur- shot, with intent to commit rape

der of motorist near scene of murder and
mee fired at another motorist held admissi-

Miss Helen Phelps, a witness for the

state, testified as follows:

tere s2 ax yeynigy

ate okey ite Faas 9

TS ET ay

KURO
os

vee

eet


6 NE 7333 50 SE 232.
TEA CHEY, Dan, hanged at Kenansville, NC, on 7-20-1905.

"Raleigh, Ne Ce, September 10, 1903. - (Special,) = Dan Teachey, who is sentenced to be
hanged at Kenansville, October 2, appeals to the supreme court. His case is a singular
one. He murdered Bob Rivenbark, having followed the Latter along the public road and
shot him at the home of a negro woman, The dying declaration of Rivenbark was in
evidence and there were also three witnesses of the murder, While waiting for his
trial Teachey. broke out of jail and was being looked for everywhere when he suddenly
came in and surrendered to the»sheriff, occasioning great surprise. He expected to
prove an alibi, but the evidence was overwhelming. Teachey has been placed in jail at
Goldsboro for safekeeping until the supreme court disposes of his case, as he would

no doubt apain break out if he were left at Kenansville," CONSTITUTION, Atlanta, Gaey
September 11, 1903 (12=2,.)

"(Special to the Times Dispatch.) Goldsboro, NC, Suge 2). = Dan Teachey, the man who is
adcused of killing Bob “tivenbark in Duplin County on the lth of last March, was brought
to this a 4 do~day by Deputy Sheriff Herring and placed in Wayne county jail for safe-
keeping. broke jail in Kenansville about 2 weeks ago and remainéd in hiding until
recently, when he sent for his counsel and, acting under their advice, gave himself

up to the officers. Jt is confidently asserted by Teachy's counsel, who are Messrs.
Kerr and Gavin of Duplin, Messrs. “ountree and Carr of Wilmington, and Mr, W, T. Dortch
of this city, say that he will be able to prove an alibi by his sisters and other wit-
nesses who saw him on the night that Rivenbark was killed. The lawyers for the defense
have a big surprise in store when the case is called at the next term of Duplin Superior
Court. The prosecution will rely mainly on the testimony of the dying many who said
that it was Teachy who shot him, and the testimony of several negroes, who will swear
to the same thing, The outcome of the case is watched with interest not only by
Teachy and his friends, but by the general public, The trial will be the most famous
that the county of Duplin has had for mahy years,"

PIMES-DISPATCH, Richmond, Virginia, August 25, 1903 (7=2.)


232 50 SOUTHEASTERN REPORTER.

agement of H. T. Day, in putting up rods.

(N. a

that deceased realized that his wound was fatal,

It may be that in the light of the entire evi- | and that he would soon die.

dence the jury may, under proper instruc-
tions, have found that he was “carrying on
the business.” The only test, so far as the
record shows, which his honor applied, was
whether he had more rods in his possession
than were necessary to rod Casey’s house;
if so, he was guilty. ‘This fact, if found by
the jury, may have been a circumstance to
be considered, tending to show that he was
carrying on the business. It was not of itself
any violation of the statute to have more rods
than were necessary to rod the particular
house. The contract made. with Casey by
Cole Bros. was to deliver “sufficient 5-8
* * * rods.” The fact that they sent
more than were necessary for that purpose
could not make the defendant guilty. It
may be that the entire charge is not set out,
and that the judge explained the law fully
to the jury. However this may be.the por-
tion sent up is, we think, erroneous.
The language of the statute is far from
clear, but we think it sufficiently appears,
when read in the light of the other sections,
that it was not intended to require a license
for a single act of putting up lightning rods,
but for carrying on that business of putting
up rods. This clearly appeared from the
special verdict in State v. Gorham, 115 N.
C. 721, 20 S. E. 179, 25 L. R. A. 810, 44 Am.
St. Rep. 494. The court, by McRae, J., says
that the defendant was an “itinerant putting
up lightning rods.” State v. Roberson, 136
N. ©. 587, 48 S. E. 595. ‘he averment that
he sold lightning rods is surplusage. It
would-be safer for the solicitor to follow the
language of the statute, which requires a
license for carrying on the business of put-
ting up rods. We do not deem it necessary
to discuss the other questions raised by coun-
sel.

For the error pointed out, there must be
a new trial,

(138 N. C. 587)
tSTATE v. TEACHTY.

(Supreme Court of North Carolina. March 21,
1905.)

JURY — SELECTION OF PANEL — CHALLENGE —
HOMICIDE—DYING DECLARATIONS — REFRESII-
ING MEMORY—ADMISSION OF EVIDENCE—IN-
STRUCTIONS.

1. Though it is the duty of the jury commis-
sioners to draw the jury at the time and place
directed by law, yet if it be not so done, but
is done properly at another time and place, the

jury so drawn is pot rendered illegal for such
irregularity.

(Ed. Note.—For cases in point, see vol. 26,
Cent. Dig. Homicide, §§ 430-437.}

4. Where it appeared that the homicide was
committed at the house of a woman whom de-
fendant visited, evidence of a prior declaration
by defendant that he would kill “any man who
come around his woman’s house” is admissible
as showing motive and premeditation.

{Ed. Note.—For cases in point, see vol. 26,
Cent. Dig. Homicide, §§ 298, 295.]

5. In a prosecution for homicide the affidavit
made by deceased containing his dying declara-
tions may be used by witnesses who were pres-
ent when it was made to refresh their memory,
though the paper was not admissible in evidence.

6. Where the homicide is denied by defendant,
the burden is on the prosecution to prove the
killing beyond a reasonable doubt: and, to jus-
tify a verdict of murder in the first degree, to
prove premeditation and deliberation.

(Ed. Note.—For cases in point, see vol. 26,
Cent. Dig. Homicide, §§ 27214, 474.]

7. The failure of the court to instruct the jury
on the law of manslaughter is not error where
defendant was properly convicted of murder in

the first degree, and the evidence presented no
elements of manslaughter.

8. 1t was proper to instruct the jury that, if
defendant weighed the purpose of the killing
long enough to form a fixed design to kill, and
at a subsequent time, “no matter how soon or
how remote,” put it into execution, and killed
deceased in pursuance of such fixed design, then
there was sufficient premeditation and delibera-
tion to warrant finding him guilty of murder in
the first degree.

Appeal from Superior Court, Duplin Coun-
ty: Moore, Judge. :

Dan Teachey was convicted of murder,
and appeals. Affirmed.

See 46 S. E. 733.

The prisoner, Dan Teachey, was tried at
August term, 1903, for the murder of one
Rivenbark in the county of Duplin. The
grand jury which indicted him was drawn
prior to a revision of the jury boxes on the
first Monday in June, 1903. He was tried
and convicted of murder in the first degree
at August term, 1903, and appealed to the
Supreme Court. <A new trial was ordered for
error in reception of evidence. At August
term, 1904, the cause came on to be heard
again. So far as the record discloses, no
plea in abatement was filed. or motion made
to quash the bill for irregularity in selecting
grand jury or other cause. At said term
the prisoner challenged the array of jurors
for irregularities in revising the jury lists
and boxes, which motion was sustained. At
October term, 1904, the cause was tried. com-
mencing second week, November 7th, before
Moore, J.. and a jury. The prisoner was
convicted of murder in the first degree, and

, , eals to this court.
2. Where defendant’s challenge to the array apetem i * ’

on grounds tending to vitiate the scrolls in the
boxes was sustained, he cannot complain that

James O, Carr and Kerr & Gavin, for ap-

those scrolls were destroyed in revising the jury pellant. The Attorney General and Stevens,
lists for a subsequent drawing, though there | Beasley & Weeks, for the State.

were names on the scrolls destroyed of persons
eligible as jurors.
5

3. In a prosecution for homicide, declarations

BROWN, J. The prisoner again challen-

of deceased that defendant shot him are compe- | 8¢d the array of regular jurors summoned for

tent as dyiug declarations where it is shown

the second week, as well as the array of spe

a

y 233
STATE y. TEACHEY.
N.C.)

i ors
ai anel set aside for err
om- | tained, and the p : a
ge cs ta “rom a very full and ¢ : : 5 iti: the action
pee as cretrn ow upon the hearing of | which his honor thought es ee in
plete finding % S pooneens the following: | of the commissioners at wo tes caer his
syoh che we s ; ; “isi 7
such challenge 1904, the challenge to the | June, 1903, in revising the Ju y oatatied
At August teri, 7 e of irregulari- | the county. The particular act ¢ = # ms
i stained becaus as = es : erm Ok,
wy ees of the jury boxes prior | of is that at the a ae <aecamaibata
ties in the revis he jurors at the June, board destroyed all the old scr epee J
to. the drawing of is ioners of the | in the boxes, and made an entirely new J 1
: ssi s | ‘ = i
1903, meeting of the Sr ak h ruling of | list, and placed the names ghee pe ‘
a ‘ons nee of suc 5 are -ourt helow show
coonts. ge RF revised jury | ‘The facts found by the penal no wrongful
ne ee an first Monday in Septem- | plainly that not only was ; pes cistavninalaile
ae An aimee in boxes “1 and 2 were | purpose or intent, but tba rn ‘de aabanet
d n sigh es ee “jf res are, an
one _— id stroyed The board then caus- | ers acte d with OE as ee natin of their
ee tel id b fore them the tax lists for | indicating a conscien ph : ney aan ot
id befor ; CREE. FAY 1a su
ed to be a im those lists selected the names | duty. We do < — ainccaak bat st
et i 1 paid taxes and were | the board was illega 5 b latter
of such persons as pease “% sutti sient in- | most it could be no more than ca i :
ral. character and suffice ante : -itiate the list of jurors
of good — Ba they selected such other | That world pe ber ne iste. #6
telligence, Q . he as did not appear on | drawn from the aang vray. ‘The stat-
citizens of thing <i -aere legally eligible | ground for challenge to the arr an saaape
ists % ens = | = ey ere iree ‘Vy Ss é as v4
the tax es weve as jurors. ‘The names | ute is considered OT ie coaiiennnens os
» 7 J oe acti e c s . .
and qualified pi . aera to be the jury | lates to the action of the aeehak tis funk
thus selected were Ce L laced by the } to the time and place of drawing ag _—
‘county, and were place : iietayc jury lists. t is the
list for the eg ‘box No. 1. At the time of | and as to revising a ag co these things
cominissioners 7 <cyvolls mentioned there | duty of the commissioners sp raniend nach
the destruction of the sero t f persons eligi- | at the time and place the law directs. = .
ei r > names of persons acuee av “operly ne at an-
were in the boxes the ffect of this revision, | if not so done, but are properly don tui hs
ble for jury duty, The ere ti ly new | other time and place. they will be treated as
. Ovi ‘ irely new | we: sea re revent
course. was to provide an en 3 lV sceceslawittine =f ; is necesaary to preven
of lak tor the nents, composed of all the | podem kigaee MS aueiniae at. jain,
ury 11s haar = ‘har- ; delay in 1e 6 str pel
citizens of the county of good moral char- | ve x. Guano Co., 130 N. C. 229, 41 8. E.
acter and otherwise qualified as jurors. On | ere ree “
the first Monday in ——— a 36 | = Nod do we think that the prisoner can
war durors Ir ired for the first week “ oO ai ac the com-
regular yureks hg oto for the second | reasonably complain of the — +. Aen k
and the 18 asia were drawn in the missioners in destroying oi the hot atoll
-eek of 5 or 3 > s if ‘ shallengec i
eS mane by law. In drawing these | in the boxes. He oe jon ba from those
‘ — “e ° . - wiely :
aches ed rst sweth the names of those at August term, = is co eg to vitiate the
jurors for the firs atin are years were re- | boxes. upon grounds tending ex bt tee
who had served witht box No. 2; but no | contents of the boxes, and gr bi ag A ing
jected, and eee rejected in drawing | commissioners at June a a cmt was
renee aca teeth second week. The court | them. This vonegieitond pe ed sa at Sep-
the 18 jurors for : . , | sustained. The action of the ‘ at §
se ely the array, and the | sust : ie pee . yper in
overruled the challenge to : rebie we find | tember term, 1904, was eminently proper
prisoner excepted. In suc gs ciew of the ruling of the court.

no error. In recurring to the statutes regulating the

; F eta
viewi he action of his honor, it is ne napehevaee ee ins
ial nigrieihee or pass upon the legality | revising of jury ag nM Sait agree
sles discuss ass : s we nce “Saatiod C sii
aagnegre of the commissioners at their Oc- ee. Mat C. Om 4 aa
: i j ; vy. Alfre : ss N.C. :
ssi 7 drawing the jurors for V3 f ” cata
pea goer  Waainer they had the right, | 746. says: “It has uaen Fe sorta Hit thik pew:
pion gi arsien is drawn out ‘of box No. 1 in | period of our judicial histor) oe -
se ies the ou ttre i isious »se statutes are dl yy,
ys fa by the small boy, to return it to | sci anes In this case, and in the
i > mi: £ s. $ "
: ee lacing the name on | No ae te
box No. 2, instead of p { | eT ee 5 lee
4 > Ss od for the | preceding : ! de 2
te ee ee aopsarag fact | cases are all cited and discussed, which bear
pa ' at all on this subject. We therefore forbeal

the

court, is immaterial in this case. ’
is found that no name was —— in i | he esac doce nF ea.
he second week, anc f any : . & ante te challoige to
a a air a eee on Monday of that Exception No. 9, igen ta
zo Se aan indictment was returned an individual juror. a hi gate se Besides
ey eda ok “do : jur “as stood Aside for cause. ‘ s,
y i y drawn juror was u
eri S re by a grand jury draw 7 ; ; Sexinympheencts
oe a oe voner on not heen prej- | the prisoner did not exhaust his } I
in 1903. So the 8 as rey ee :
udiced thereby, so far as we are able to see. ~~ wile oem “Se ig nplice ieee oF eerie
The action of the board in oo the igh oner's numerous exceptions noted during the
ist : f September term, 1904, seems as avina t » yoluminous recoré
a ae % re red necessary, or at least | trial and appearing mm the v
per bial onagae gyrate ian as we deem proper.
ruli the | as we de eee
visable - renson of the ruling of 5. io yee Fac ae pa iouse
pois ope . “ase at August term preceding, | Che evidence or the = at Mean Me
eee ie prisons 3 lenge to the entire | to slow that the Momicide . ge
» prisoner's challeng w 30 Y iain
ome - pbc which challenge was sus- | nesday night, Mareh 4.
panel o s,

eile ter 6 F

auey § ‘ueq ‘SHOVEL

ae +

S06t~Oz~2 ‘(UT Tdnd) euTpTozed Yy4ON pe

+e?
= “8m

732 46 SOUTHEASTERN REPORTER, (N.C.

sn the case, the law implies or presumes mal-! son is caused by such an act, it is murder.
ice; and at common law the killing, if nothing | Dunawezy v. People, 110 Ill. 338, 51 Am. Rep.

else appears, is murder. State v. Willis, 63
N. C. 26; State v. Johnson, 48 N.C. 266; State
v. Brittain, 89 N. C. 481. When this impiica-
tion is raised by an admission or by proof of
the fact of killing, the burden is upon the de-
fendant of showing all the circumstances of
mitigation, excuse, or justification to the sat-
isfaction of the jury (State v. Johnson and
State v. Willis, supra; State v. Vann, 82 N. C.
681; State v. Barrett, 182 N. C. 1005, 43 S. E.
882), and that burden continues to rest upon
him throughout the trial (State v. Brittain,
supra). As malice is an implication or pre-
sumption raised by law from the fact of the
killing, it must needs be a matter of law as to
what facts or circumstances which the evi-
dence tends to establish will or will uot rebut
the presumption. State v. Matthews, 78 N, C.
523; State v. Byrd, 121 N. C. 684, 28 S. E.
353; State v. Wilcox, 118 N. C. 1131, 23 S. BE.
928; State v. Craton, 28 N. C. 164; State v.
Johnson, supra. Whether the evidence suffi-
ciently establishes the facts or circumstan-
ces which will constitute a rebuttal of the
implication of the law must as surely be a
question of fact for the jury to pass upon;
and when, therefore, there is any evidence
tending to show these facts or circumstances,
it is the duty of the court to submit them
to the jury, with proper instructions as to
what will be sufficient to rebut the presump-
tion, so that the jury may finally decide wheth-
er or not the presumption has been met and
overcome by the defendant. It follows that
whether there is any evidence in this case to
rebut the implied malice is a question of
Jaw. When there is a killing with a deadly
weapon, the law, as we have said, implies
the malice, and the offense, at common law,
ig murder, and under the Acts of 1893, p. 76,
ce. 85, it is murder in the second degree, if
there is nothing in the case to reduce the
homicide to a lower grade. State v. Wilcox,
118 N. C. 1131, 23 S. FE. 928. This being so,
all matters in mitigation or excuse must be
shown in the same way as at common law,
if the defendant would reduce the offense to
manslaughter, or acqut himself altogether of
the charge.

We have examined the testimony set forth
in the record with great care, and have been
unable to find anything which tends, in law,
to extenuate the crime of which the defend-
ant was convicted, and there is certainly
nothing to excuse it. Instead of rebutting
the implied malice, the evidence tends to
strengthen and confirm the presumption rais-
ed against the defendant from the act of
killlIng with a deadly weapon, The malice
necessary to constitute murder may exist,
though there was no intent to kill or even
to injure the particular person or any one
else, It is implied when an act dangerous to
others ts done so recklessly or wantonly as
to evince depravity of mind and a disregard
of human life, and, if the death of any per-

|

; an offense Is

686; Pool v. State, 87 Ga. 530, 13 8S. EB. 556;
Golliber v. Commonwealth, 87 Am. Dev. 493;
Washington v. State, 60 Ala. 16, 31 Am.
Rep. 28; State v. Edwards, 71 Mo. 312;.1
McLain, Cr. Law, $ 325; 1 Wharton, C. L.
§ 319; 21 Am. & Eng. Enc. Law, 153.

We bslieve the authorities cited support
the general rule !aid down, and several of
the cases, while not presenting precise
the same facts, cannot be distinguished in
principle from the case under consideration.
in Clark’s Criminal Law, p. 190, the rule is
‘thus substantially stated: Where a person
does an act with knowledge that it will prob
ably cause death or grievous bodily harm te
some person, although he has no actual in-
tention to injure any person, but may wish
the contrary, and death ensues from his act
he is guilty of murder. Thus, if a man recs-
lessly throws from a roof into a crowce!
street a heavy piece of timber, which ki
a person in the street, or if he intentionat’s
fires a pistol in a crowded street and kil's
another, in either case it is murder. In Poo!
v. State, supra, the court says: “The law
infers guilty intention from reckless conduct
and, where the recklessness is of such a char-
acter as to justify this inference, it is the
same as if the defendant had deliberately
intended the act committed. When, there-
fore, one recklessly fires a pistol, with crim-
{nal indifference as to the consequences, ani
another is killed, it is not necessary, in or-
der to constitute this killing murder, that the
accused should, at the time of firing. lave
been engaged in the commission of some wu
lawful act, independent of and in addition to
the reckless firing itself.” In Brown y, Com-
monwealth (Xy.) 17 S. W. 220, it is said by
the court: “If we are mistaken as to there
being evidence of the appellant’s malice to
wards the deceased in particular, it is clear'y
established that the appellant, without law-
ful excuse, intentionally fired the pistol in &
room crowded with persons. If he did this.
not with the design of killing any one, but
for his diversion, merely, but killed one cf
the crowd, he is guilty of murder, for s\
conduct establishes ‘general malignity 4!
recklessness of the Ives and personal safety
of others, which proceed from a heart void of
a just sense of social duty and fatally ben’
on mischief.’ In the case of Alken y. Stt
10 Tex. App. 610, 618, it appeared that the ¢--
fendant fired his pistol into the window of 4
passenger car, in which he knew there were
passengers; and the court said, in disct
the case, that “where an act unlawful fa it
self {s done with deliberation and intent.
of mischief or great bodily barm to partie!
individuals, or of mischief indiscriminate
fall where it may, and death ensues against
or beside the original intention of the part
{t will be murder. The intention to cou
sumed whenever the mr.
used is such as would ordinarily result in t

Sa 4

NC) STATE vy. TEACHEY, 733

commission of @ forbidden act, and this
rests upon the principle that a man is al-
ways presumed to intend that which is the
necessary or even probabie consequence of
his acts, unless the contrary appears.” lt is
futher said by the court that, “according to
the evidence, the @efendant fired his pistol
into the window of a passenger car of a rail-
road train, in which, it is shown, he must
have known and did know there were passen-
gers. The deceased was struck by the ball,
and died in a minute or two thereafter from
the effects. More reckless ¢ i

regard of hu-
man life was never shown, and can scarcely
be imagined; and the act, under the circum-
stanees developed, is, and couid be, in law,
nothing short of murder.” If it be suggested
that the killing might have been done acci-
dentally and without negligence, in which
ease the defendant would be entitled to an ac-
quittal, or that it was done recklessiy, but
without intention to kill, in which case the
defendant would be guilty only of manslauzh-
ter, there is no evidence, as we think, to sus-
tain either view. Such a suggestion is fully
met and answered by the case of State v.
Vines, 93 N. C. 496, 53 Am. Rep. 466, in which
Merrimon, J., spenking for the court, says:
“The test of respousibility depends upon
whether the conduct of the person accused
was unlawful, or, not being so, was So gross-
ly negligent, reckless, or violent as necessari-
ly to imply moral impropriety or turpitude.
In some cases it may be difticult to determine
the grade of the offense, but the case before
us leaves no ground for doubt or hesitation
in determining that it is at least one of man-
slaughter. Indeed, in one aspect of the case,
it was murder. There was some evidence
coine te show the willful purpose of the pris-

i

oner to shoot without regard to the conse- |

quences, and, if this purpose existed, it was
niurder, If he had been allowed to say that,
in his opinion, the shooting was accidental,
this econld not have materiaily changed the
case, beeause the prisoner had used the load-
ed pistol in an wilawful and reckless manner,
and whether the firing was accidental or not
made no difference. ‘The law does not tol-
erate such use of deadly weapons, and, when
fatal consequences result from it, the offen-
der cannot be held guiltless. In such case
he must answer for the consequences. It
would be monstrous aud shocking to reason
to allow a man to so use a loaded pistol, and
then take shelter behind the faet that the fir-
ing was accidental.”

The defendant, on the eross-examination of
come of the state’s witnesses, proposed to
show that he had been friendly with Mary Me-
Culloch and her family at the time when the
homicide was committed, and also proposed
to show certain facets and circumstances from
which bis friendly feeling towards them
could be Inferred by the jury. The court ex-
cluded the evidence. and we think it did so
properly, This evidence, if admitted, could

| HOMICIDE—EVIDENCE
NE

not have reduced the grade of the homicide.
A defendant must show something more than
a mere friendly disposition towards the per-
gon killed, if he would justify, excuse, or
mitigate his offense. It was so decided, as it
seems to us, in State v. Jounson, supra.

The evidence in this case tends to show
that the defendant’s anger was aroused by
the refusal of Georgia McCulloch to come to
the door of the house when he called her,
and perhaps by what Florence Tuten said to
him atthe time. This reference to the testi-
mony is made not so much to show that there
was evidence in the case of actual malice as
to show that the evidence not only does not
rebut the {mpiication of malice, but rather
tends to confirm it.

The defendant excepted to the Judgment
upon the ground that the punishment imposed
is excessive. The sentence of the court was
entirely within the limit fixed by the law.
It imposed only the extreme punishment for
manslaughter. We do not think, in any view
of the evidence, that it was excessive. State
v. Miller, 94 N. C. 904.

Tpon a review of the whole case, our con-
clusion is that the rulings and charge of the
court were correct. No error

ee
(34 N, C..658)
STATE v. TEACHEY.

(Supreme Court of North Carolina. March &,
190-4.)
STATEMENTS OF WIT-

SES

where de-

mt

1.In a prosecution for homic
fendant’s father testified that
at home at 7 o’clock on the nisht of the sh
ine. and that he, the father, went to bed
and did not sce defendant until the next
and deceased was shown to have
about 9 o'clock that ni i
state’s witness that, a few
shooting, the father said, on he:
shooting was done at 9 o'clock, that he mis
as well give the case up, as he could net ac-
count for defendant after 7 o'cl was innd-
missible, for if wa ither contradictory of any
statement of defe father, nor connected
with any fact concerning the shooting.

Appeal from Superior Court, Duplin Coun-
ty; O. H. Allen, Judge.

. Dan Teachey was convicted of homicide,
and appeals. LKeversed.

James O. Carr and John D. Kerr, for ap-

; pellant. The Atiorney; General and Stevens,

Beasley & Weeks, for the Stute,

MONTGOMERY, J. In addition to the
statement of witnesses concerning the dying
declarations of the deceased, there was
strong evidence that the prisoner shot and
killed the deceased. Wis honor, however, in
the course of the trial, received a certain
piece of evidence offered by the state which
wags so clearly ineempetent, and which may
have been harmful to the prisoner, that we

S06l-O¢-2 *(uTTdng) eutToseD yyLON peduey § gynyMSued ‘TAHOVEL


Yt Ue

pl sas

734 46 SOUTHEASTERN REPORTER,

are on that account compelled to order
new trial.

Robert ‘Teachey, the father of the priscner,
testified, for the defense, that his son, the
prisoner, was at his home at 7 o'clock on
the night of the shooting, and that he (the
father) went to bed early and did not see
the prisoner until next worning. The decens-
ed was shot about 9 o'clock at night. W.D.
Teachcy, a witness for the state,
to testify, over the prisoner's ojection, that
on Sunday after the shooting he, at the
house of Kobert Teachey, was asked by Rob-
ert if he (W. D.) had heard anybody sa
What time the shooting took ‘
he answered, “About 9 o'clock,” and that. in

was allowed

reply Robert said, “I might as well give the |

case up, aS I have no grounds to fight upon.
I cannot account for Dan after 7 o'clock.”
Joe Bostick testified that he heard Robert

Teachey say that he could not account for |

Dan after 7 o'clock. At the close of his tes-
timony the jury were instructed “that the
evidence us to what Bob ‘Teachey [who is
the same as R, Teachey] said was not to
be considered, unless they found from the
evidence of said Teachey that he fixed Dan
Teachey at home that night after 7 o'clock,
and he [Poly Teachey] was thereby contra-
dicted.” ! that this instruction to
the jury ad reference to the testimony of
W. 2D. Teachey as well os to that of Bostick,
it could not have the effect of curing the er-
ror in the admission of the testimony of W.
D. Teacl In no sense could the testimony
of W. D. “Teac hey be considered as contra-
dictory of any statement made by Robert
Teachey as to the whereabouts of Dan on the
night of the shooting. The despair of the
father (Robert) in successfully defending his
sou against the charge of murder had no con-
nection with any statement made by the

father as to the time when he saw the son |

last on the night of the shooting.

entirely inde

It was
neeas toa |
he time of the shooting, and was but the
individual opinion of a distressed parent |
about the ditticulties surrounding his son's
condition. It was not contradictory of any |
statement made by the witness, and was not
connected with any fact concerning the al-
leged he ide,
New trial:

pendent of all refe

(ict n. C. 316)
NILAY et alo v. PELLETIER.

(Supreme Court of North Carolina. March 8,

1904.) |
OR
RIGHT.
(2), providing that the
eh } vouUue
Vituesses und the
j , 1 he prometed by the |
change, sich metion moy be made at any time |
to the progress of the cause,

| of venue when the eountys ee

proper

soon as

| if the complaint
|

BWEern Ss;

ve

nie

the motion

county, a
be made before the time of answering expires,
the inetion must he made at the return terin

Without
| or the a
the time

remove,

the

Action

ae a 2

St

moval of

versed.

ae
Ward,

Rance,

for ay

CLARK,
| ett Hines, 2

defendant
suniMons was returnable to April term, 10°

| ber, at
|

| move the cause to Carteret,
| appear that notice of this motion was se:

an

ty; Deebles,

COmMy

filing of an affidavit and motion for

in vacation, before the clerk
must be made before

ated is not fhe:
nd requiring such motion to

is then filed, and, if net, as
laint is filed, and before” an-

1 either the filing of an answer

fesuioh or
ceptance of a
to au

‘wer, is a waiver of

demand for remova
special order extending
the right t

Jude,

brid. T-
Pelletier.

ihe ca

pell

for appellants.

|
| Appeal from Superior Court, Lenoir Coun-
|

Riley and others against
From an order granting a re
nuse, plaintiffs appeal. Re

Simmons &
ee,

C. J. Plaintiffs, other than Lor
re nonresidents of the state. Th
resides in Carteret county. Ti

The next term began 11th Nak

which te
In the menntime, on 17th October, 19U2, the
defendant filed an affidavit and motion to re

of Lenoir superior court; complaint wes ti
ed at that term,
answer.”

and entry made, “ti

+

orm the answer was fited

but it does net

on any of the plaintiffs or their atiorneys

At November

term, 1002, and

sneceedinz

term, the motion and cause were continue!

! out the

the stipulated rent thereon for the conve!
of which this action was brought

swer,
above

llines,

the

At March terin, 1908, the motion to reimov:
was granted.

“Lovett
noir county, was joined as
is alleged in
agent of his coplaintitts, and as sueh rented

Agent,” who resides in Le-
party plaintiff. it

complaint that he was t

lands, and was authorized to coll

The au

while depying information upon th:
allegation, adinits that said Hines was

agent for his coplaintiffs in taking posses
sion of the crop,

that he took

m

ore of the croj than

and sets up as a deft

was du

The Code (section 177) requires that the :

party in inter
as otherwise provided,” and section 1
thorizes, among others,
press trust”

tract is

made

jt is sug;

ments in

an expres

it was tl
on the groin

est

should be plaintiff,

“a trustee of an ex-

to sue, and defines him to be "a
person with whom, or in whose pame a con-

fo

sested t

the complaint,

trust,
owners to rent the land and collect the r
and hence th:
party, aud,

be

1

t he

ing ;

r the benefit of anctl
hat Ilines, upon the as
was the “trustee
the alter :

ego of th

was prima facie ape
ident of Lenoit
to remove the «

signed in the motion,

Pala AE tig

N. CG.)

Code, § 192, for the residence of defendant in
Carteret. We do not find it necessary to
pass upon this point.

The court, in its discretion, may re-
move the trial “when the convenience of wit-
nesses and the ends of justice would be
promoted by the change” (Code, § 195 [2}),
and such motion may be made at any time in
the progress of the eause. The restriction
that the motion to remove must be made
“before the time of answering expires” ap-
plies only when “the county designated in
the summons and complaint is not the proper
county” (Code, § 195) and the defendant seeks
to remove as a matter of right.

We may note, further, that filing the affi-
davit and motion to remoye, in vacation, be-
fore the clerk, was invalid. Such motion
must be made before the judge (HWoward v.
Rt. Co., 122 N. C. 944, 29 §. K. 778), and notice
given (State v. Johnson, 109 N. C. $55, 313 8S.
BE. 843; Stith v. Jones, 119 N. C. 4 25 8. FE.
1022). Even if valid, the filing of es answer,
without suggestion or demand for removal,
and before action had upon the motion, was
a waiver of the motion. MeMinn v. Hamil-
ton, 77 N. C. 801; Co. Roard v. State Board,
106 N. C. 81, 10 S. BK. 1602; Cherry v. Lilly,

13. N. C. 27, 18S. EF. 76.

3esides, the Code requires that the motion

to remove should be made “hefore the time
While this language
is slightly different from the federal statute

for answering expires.”

regulating motions to remove to the federal

court, which specifies that said motion must
be made “at the time or any time before the
defendant is required by the laws of the state

or the rule of the state court, in which such

suit is brought, to answer or plead to the

”

declaration or complaint of the plaintiff,” we
think the tenor and objeet of the two stat-
to require the de-
fendant to object to the jurisdiction in limine
by moving to remove as soon as he is afford-
from filing the complaint, to
know definitely the scope of the action. The
language of the statute in both cases has
reference to the time at which the answer

utes are the same, f. e.,

ed opportunity,

should be filed under the statute or the gen-

eral rules of court, and not the special order
granting extension of time to answer, which
is of itself, if asked or accepted by the de-
fendant, an acceptance of the jurisdiction,
and therefore a waiver of the right to remove.
In County Board
the motion to remove
was made before the expiration of the exten-
sion of time to answer, but after the answer
was filed, and it was held too late. The
only ease which seems to militate against our
ruling in this case is Shaver v. Huntley, 107
N.C. 623, 12 S. E. 316, but there time was
given to file the complaint, and when it was
Hicd in vaeation, disclosing the nature of the
action, the defendant, before answering, made
a demaud for removal, and gave notice of the
In that case

Howard v. Railroad, supra.
vy. State Board, supra,

motion to the opposite party,

OUTLAND v. SEABOARD AIR LINE RY. CO. 735

1 the court repeats that the motion must be

| made in limine. The question here decided
was raiscd in Roberts v. Connor, 125 N. C.
45, S34 S. E. 107, but not pass sed upon, as the
order of remova! was reversed upon another
ground. If the defendant seeks to remove,
as a right, because the action is brought in
the wrong county, the motion must be made
at the return term, if the compiaint be then
filed, and, if it is not, then as soon as the
complaint is filed, and before answering.
Error.

| (13t -NSELSs0)
| OUTLAND vy. SEABOARD AIR LINE RY
; CO. et al.

March 8,

(Supreme Court of North Carolina.

1904.)
s ~CONTRAC T TO FURN
: CE 2 I

| NAL Atl
| 3E INSTRUCTIONS —TIARS ML
| ROR—DAMAGES,
|

1. Plaintiff wrote defendant that he was cut-
ting and expected to cut 0V car loads of props
at a certain point, which be could not load at
any siding, and asked for a train to load them
on the main line, Defendant wrote that it
had considered his application to load a train
on the main line and was prepared to permit
it, and concluded, ‘lease let me know when
you desire a train, and we will tuse up with the

superintendent the question When it can be
furnished.” eld, that there was an uncondi-
tional and complete contract to furnish cars
for transportation of the props; the day when
the superintendent should send them being a
| mere matter of detail and in Jaw to be done
| within a reasonable time after plaintiff should
; make known his readiness therefor

2. One may contract with the general freigh
agent of a division of a railroad as having au
thority to furnish trains for moving freight un
der special contract.

3. Even if the superintendent of transporta-
tion of a railroad had power to ds cline to f
nish cars where the general freight agent t
made a special cont nvhing
a train to move fi a comnnier
contract Where plaintiff sent to the superintend
ent a request for a train, and the superintend
ent sent it to the geoeral freight acent, who
wrote plaintiff refe: to his letter to tl
superintendent, and saying that they had con
sidered his application to be permitted to load
a train and were prey nit it. :

4. Under the contract, sisting of plain
tiff’s letter, stating that he expected to cut 50
car leads of props and asking defendant “to
grant me train to load my props on the main
line,” and defendants letter. agreeing to fmr-
nish “a train,” there is no error in an instruc-
tion to allow plaint such damages as
sustained by defendant’s failure
| “trains” of cars suflicient to transport nO

wis s of props: no train having been furnis!
| An instruction that if the jury
|
|
|
|
|

the’ evidence they should find that
agreed to furnish plaintiff with cars “:
leged in the complaint” (which was at suc h time
as plaintiff might need them) is harmless,
ee the contract merely required them to he
furnished within a reasonable time, they also
being instructed that they were to allow such
| damages as plaintiff sustained by reason of
ears not being furnished in a reasonable time,
part there hav Dg, as in atter of law, been an un-
reasonable delay in furnist
i GAs a matter of law
which coutracis to furnish cars for transport:

ona company


ye ee he : :
TERRY5, ‘ha Sai Steet" 60, electrocted North Carolina (Guilford
LL-9-19ET = cat Cees ace san

raining that fa Viel ioue | has
So} tng had Vout Cae on it. He ay oy
; haré mibimized ax mock as he ¢ ie + ae
jorime Stominitted brit. he Pe wg m .
paeake a's ifinpiwetly Peeps

spe hae
tease



v4 50 SOUTHEASTERN REPORTER.

9 o'clock, at the house of Gilbert Johnson
and Easter Williams, in Duplin county,
which house was situated a little more than
three miles from the home of Robert Teach-
ey, with whom his son, the prisoner, resided.
There were present in the house when the
homicide occurred Gilbert Johnson, Annie

Jobnson, Easter Williams, and the four i

legitimate children of Easter Williams. The | the crime.
evidence relied on by the state tends to show
that the deceased left home a short time after
dark, and went to the house of Easter Wil-
liams for the purpose of securing her serv-
ices in working his strawberries; that he re-

mained in the house a short time, and, afte

securing her promise to come on the follow- | ers.
ing Monday, turned to leave the house, and
after getting out of the door the prisoner ap-
proached him from behind the house or from
the corner, making threats and using pro-

fane language, and shot the deceased. Afte

the shooting, the deceased went in the direc-

(N.C,

the yard. I did not see him give her any-
thing.” As the ground of the objection is
not stated, we have been unable to discover
any possible reason for it. The declarations
of the prisoner, several of which were offered
in evidence by the state and proved by dif-
ferent witnesses, are plainly competent as
l- | evidence tending to prove the commission of
These declarations were made
under circumstances clearly indicating that
they were voluntary, and not made under
duress or other improper influence.

The prisoner further objects, in his seventh
exception, to the testimony of Ann Johnson
r|in regard to a conversation with Max My-
The record shows that she testified that
“Max Myers was the first person who spoke
to me about this occurrence.” It is true the
prisoner was not present, but the conversa-
tion. whatever it may have been, was not
r| given in evidence. The fact that there was
such a conversation is immaterial and harm-

tion of the home of J. E. Dixon, who lived | less.

about 180 yards from Easter Williams. Be

fore reaching Dixon’s house, the deceased

fell, and in answer to his cries Dixon came

and found him in great pain, lying on his | ed.
back in the middle of the road. To this wit-
ness the deceased said, “I am shot, and shot
to die,” adding, “Dan Teachey is the man
who shot me; I saw him and caught his

- Exceptions 4, 5, 9, 10, 12 and 13 were made
to the statements of several witnesses in re-
, | gard to the dying declarations of the deceas-
On the night he was shot the deceased
said to J. E. Dixon and one Booth, witnesses
for the state, that “he was shot, and wanted
to tell us both, while he was in his right
mind, who shot him.’’ The deceased then

voice.” ‘The deceased was then taken to his | said: “I am shot, and shot to die. Dan

father’s house, and died from the effects of
his wounds between 5 and 6 o'clock p. m. on | bim,
Friday following. There was also evidence | came out of Easter Williams’
tending to show the existence of illicit rela-
tions between Easter Williams and the pris-
oner, and that he was the father of Easter’s
youngest child. It also appears in the evi- | you got here to-night?”
dence that some time before the homicide the

prisoner said he believed that Bob Riven-
bark, the deceased, was going to Easter's
house, and if he caught him there he would
kill him; and that three weeks before the
shooting the prisoner said, “I have two good
guns, and am going to buy anotber one,”
adding that “he would kill any man he
caught at lis woman’s house.” In his de-
fense the prisoner relied upon an alibi, and
offered evidence of a number of witnesses
tending to prove the alibi.

There are in this record a large number of
exceptions by the prisoner to the testimony.
We have examined each exception with that
care which the importance of the case de-
mands. We are unable to discover any mer-
it whatever in any of them, and therefore
we do not deem it necessary to discuss the
exceptions to the evidence seriatim. As an
example. we cite the exception to a certain
part of the testimony of Ann Johnson, where-
in she testified that the prisoner was in the
back yard, and asked, “How ts Rivenbark?*
and, upon receiving a reply, the prisoner sald,
“Well, I must leave this place.” ‘“lhe pris-
oner was standing on the side. not far from
the oak tree, the next morning. The prison-
er spoke to Lizzie Willinms while standing in

Teachey is the man who shot me. I saw
and eaught his voice.” He said he
house, and
when he got a step or two from it the prison-
er came up from behind the house, and said
to him. “Bob, what in the devil business have
He said he was go-
ing backwards from the prisoner and the
prisoner shot ‘bim. J. S. Rivenbark, a wit-
ness for the state, testified to being present
when the declaration was made by the de
eeased to Dixon and Booth, and that the
deceased furtber said: “I walked out of the
house, and the prisoner walked round the
house, cursing. Ue said, ‘By God, these
women can get their living without work.’
and jerked out his pistol, and shot me.”
That the prisoner followed him, and kicked
him three or four times, knocked Easter Wil-
liams down, and then ran. This witness fur-
ther testifies that on this occasion the de-
ceased called his mother, put his arms around
her, and said: “I am gone. I am going to
die. Dan Teachey shot me to death.” The
deceased also stated to J. D. Teachey, about
2 o'clock the same night he was shot, that the
prisoner approached him from behind the
house, making threats; and he stepped back-

wards, and the prisoner shot bim, and struck

and kicked him; that he heard the prisoner's

voice and saw his face. The deceased made

a statement in writing, which he swore to,

but, as this statement was not admitted as

evidence, it is unnecessary to notice it.

Every condition necessary to make the dying

declarations of the decensed competent was

N. C) STATE v. TEACHEY, 235
the jury. He told them further that sgh
that the deceased swore to this paper gsi
no importance; that the only igen vented
lury should consider of these dying dec as
tions is the evidence of the witnenpre bs F3
testified to them, and that they were egh ”
in their presence, and that the only ere
which could be made of this paper is the us :
made of it by the witnesses Graham po
Teachey, who were permitted to aes “4 vi
for the purpose of refresbing their ee no
tion, as the athidavit was made in their a
ence, and taken by them. It has ool
pressly decided in a number of cases tha 2
witness may refresh his pages 784 . .
dying declarations of the decease z an
memoranda. State v. Whitson, 111 N, Pn
16 S. E. 332; State v. Finley, 118 N. Co. ti
24 S. EB. 495; State v. Craine, 120 N. Cc. i
7 y. 72.
oat further instructed the jury that:
“If you are satisfied beyond a reasonable
doubt. from the evidence in this case, ~
the prisoner, Dan Teachey, shot WwW. cage
Rivenbark with a gun er yerioal ak
vr witnesses of- | day of March, 1903, an at
Meets ie al See ee died from the wound thus prey: Racha
fered by Se ~~ oa : that his honor care- 6th day of March, 1903, then ‘ a “ nace
ey 5 the ae of the introduc- | guilty of murder in the a tig — es
— rata . -e, the purpose for whicb | least.” It is the settled neo Ma a an
eS ahaa! ge ‘fully complied with the that when the killing is — Fog pret
it was offered, par sourt upon that subject. lished beyond & reasonable = ee
recent cule — anann the attention of the | been done by the prisov2r, on peso
Po hie, ~ ge corroborative evidence | upon the prisoner to either justi zs 4 noe
replies: anys oun upon them their | the killing. If be fails to so, li al
rman Tage ee that effect and weight | of murder. The act of 1893 a > ies
Gott tee amncter denerved The testimony | a new —. ag Rn ° oe a
of MeCl vs 1 mt ing to nd divided it into tw grees. §
vel anes ra oe a ee oaare. pt of that act, if the killing is admitted,
show motiv Q x

tion of the priso 1er tend ng to show a pre- or established beyond a reasonable doubt,

or
itated {1 deliberate purpose to kill “any | the prisoner must id 6 one
pepienpot aed ound bis woman's house,” | he is guilty of murder n ee ae cae
ae. ee pi the testimony that the | In weet. a ee ean ae pha
at i »eree, the burden 1s

ee se ger Be te erga —— par age establish the killing epee 4 _
preoar neo 4 or is very full and | sonable doubt, but likewise oe irae

wee ee > ngreiyrcien of the prison- | it was done premeditatively and > ae. en
beareneig Nee pee most carefully guard- | or by lying in wait, sige sa po
sere = pale ny and contentious in his | In this case the prisoner denie fe ee
oe te caine Mages the jury along with the | and undertook to establish an en a scl
behalf presentec hase fairness and ability. | fore the burden was upon ports penta gem
pests ie ns o necediitiry to comment at | the killing beyond a ee e rg 38
Se oe a rail of the exceptions to the | to justify a verdict of mur er or atl
poe neve pie oner excepts because the | degree, to prove ajereiceeapeeny teases went
ye gg EN the affidavit of the de- | tion as well. The charge oft ec riggs
ate pita’ ita J. D Teachey, a justice | was entirely correct, and in line W
—_ — "This ‘paper was permitted authorities. “wee ‘ai
ST eee or two of the witnesses, The prisoner excepts becaus Prighvowg
pate gests ieee tt was taken, for the pur- | failed to present to the jury — =
—, es a ite their memory. His honor | tion a view of manslaughter. cea Se oH
sneagel pray call the attention of the jury | was convicted of murder in ee pad
degree mM t this paper was not in any | gree, and we do not see ~~ es ah .
aries a7 ata to he considered by them: dicial to him because his phon pe ipa
enat Or a s not authorize the taking of | charge the jury on the mesg st one
that es or aeecattas of a person mor- slaushter, eh oe icon: oh i:
yal nigel: put the law does permit the pe vO * ns then We
element of manslaughter. ‘The testimony of

shown to exist in this case. The —€
was shot on Wednesday night, and die =
Friday night following. The epee 6
show conclusively that he knew he wa in
extremis, and in the shadow of death. oe
told the physician that he was going ie -
and made the same statement to his mo so
The declarations, under such cape oc agepsientt
were not only competent, but they w =
plain, unequivocal, and of no uncertain ewe i
ing. The ruling of the court in adimi ting
them is sustained by the uniform oe ae
of this court. State v. Dixon, pe N. C. og
42 S. B. 944; State v. Boggan, 133 N. ~ i
46 S. E. 111. Although a large part o Pee
exceptions in the record do not point out |
portion of the testimony which is RAE IE
as required under the ruling in State * en
ford. 133 N. C. 714, 45 S. E. 944, yet, ~ :
interest of buman life, we have examine =
the testimony with great care, and we wily
unable to see wherein the prisoner nae <<
ground of exception to ruling of his bon-
iseclosed in the record.
= anions is taken to the testimony of Max

tally wounded, ' ie
dving declarations of the person who has been
ginin by another to be given in evidence before

Slr

se teiwe

Arve


Gilbert) Johnson Ann Johnson, state's
Witnesses, pointed out to us by the prisoner's | the clause :
counsel as supporting a view of manslaugh- bor that there is reserved from ‘and not in-
ter, faite eationly a daatity eur ik chat. cluded in the above sale or conveyance seven-
The refusal to give certain special instrue-
tions asked by the prisoner constitutes ex- privilege to said Bennett. his heirs and assigns,
ceptions 13, 14, 15, 16, 17, 18, and 19. We do oo See 3 ome agg same.” This excepts,
not think there was any evidence to sustain ee tee ner tee ek ee
them, and they were properly refused.
In regard to the exceptions relating to sen and property, and are not an incorporeal
lying in wait, an examination of his honor’s Mectslisareent Sk Sam. nee. s mere Teownee-tp- Hee
charge shows that he expressly told the jury
that there was no evidence in the case sufli-
cient to justify the jury in finding that the surface by the grantor. A subsequent convey-
“cr el Mss eos: nie seseataine in the grantees like estate and property in the
satisfied beyond a reasonable doubt that the
prisoner killed the deceased, and that the the petroleum oil and natural gas in it has the
kitting was: willful, delilierate, and yremedi- same effect as an exception of the same would
tated, you should convict the prisoner of
murder in the first degree. :
isfied beyond a reasonable doubt that the secneste tee gr epson &@ separate corporeal
prisoner weighed the purpose of killing long Oe a cet
enough to form a fixed design to kill, and
at a subsequent time, no matter how soon Appeal from Circuit Court, Lewis County;
or how remote, put it into execution, and kill- | W- G- Bennett, Judge.
ed the deceased in pursuance of such fixed Bill by H. M. Preston and others against
design to kill, then there was sufficient pre- | @. 1. White and others.
meditation and deliberation to warrant you | tiffs, and defendants appeal. Affirmed.
in finding the prisoner guilty of murder in Linn & Bland,
We are unable to see any
When the purpose

the first degree.”
error in this instruction.
or design to kill is formed with deliberation
and premeditation, it is not necessary that
such purpose or design be formed any defi-
nite length of time before the killing. State
v. Spivey, 182 N. C. 989, 43 S. E. 475. There
is in the record abundant evidence to justify
the finding of the jury that the homicide
was committed by the prisoner in pursuance
of a fixed design deliberately formed before- | yy,
circumstances attended | operate the same. Louis Bennett conveyed a
with heartless brutality. The evidence of- ‘
fered by the prisoner was not intended to
show palliation, extenuation, or excuse. It
was introduced for the sole purpose of estab-
lishing an alibi, and it seems to have had
little weight with the jury.
been tried twice for this crime, and on both
trials the jury have pronounced him guilty
and deliberate murder of
A minute examination of the
entire record on the second trial shows that
the prisoner was fairly and impartially tried,
and that no error was committed of which
the prisoner has just ground to complain.
There is no error.

The prisoner has

of the willful

PRESTON et al. v. WIIITE et al. Hoski 1
SK as « ) are :
(Supreme Court of Appeals of West Virginia. one eee be Gee, tee eer Sy
Feb, 28, 1905.) t id P ne
sé res £ cins seven-
wicket, Eaistasuine tie Ga nccalbich Gamavaisns o said Preston, Knapp, and Hoskins seven
TION RESERVATION,

50 SOUTHEASTERN REPORTER, CW. Va.

2. A deed conveying a tract of land contains
“But it is expressly understood and

eighths of all and any oil and gas that may be
on, in or under said land, with full right and

in place in the land; and the oil and gas re-
main vested in the grantor, as an actual, vested

duce oil and gas, and title in the grantor to the
oil and gas is not in abeyance, to vest only when
the oil and gas shall be developed and brought to

ance by such grantor of such oil and gas vests

oil and gas as was vested in such grantor.
In a deed conveying land, a reservation of

have if such is the plain intent.
4. Petroleum oil and natural gas may be sev-
If you are sat- ered from the ownership of the surface by grant

(SyHabus by the Court.)

Decree for plain-

for appellants. W. W.
Brannon, for appellees,

BRANNON, P. In the division by decree
of the lands of J. M. Bennett, deceased,
among his children, a tract of 296% acres in
Lewis county, on Dry Fork of Polk Creek,
was allotted to Louis Bennett; the decree
providing that all oil and gas in the tract
should be for the joint use of Louis Bennett,
Gertrude B. Howell, Mary B. Bowie, and

G. Bennett, with right to develop and

tract of 151 acres of the whole tract to G. L.
White by deed, 11th March, 1898; the deed,
however, containing the following clause:
“But it is expressly understood and agreed
that there is reserved from and not included
in the above sale or conveyance seven-
eighths of all and any oil and gas that may
be on, in or under said land, with full right
and privilege to said Bennett, his heirs and
assigus, to develop and operate the same, and
said White, his heirs and assigns, are to pay
the taxes on said oil and gas so reserved, de-
veloped and operated, which taxes are to be
refunded to said White whenever they assume
appreciable taxable value.” By deed, 11th
January, 1901, Louis Bennett and his co-
owners of the gas and oil conveyed seven

eighths of the gas in said tract of 296% acres

to H. M. Preston, F. M. Knapp, and W. S&

Louis Bennett and his co-owners conveyed

eighths of the oil in said tract of 206%)

1, Petroleum oll aud-naturalgas are minerals, | 2¢tCs- Said Preston, Knapp, and Hoskins
and, in their places, are real estate and part of

later filed a Dill in chancery in the circuit
court of Lewis county, claiming to be own-

PRESTON v. WHITE. 237

w. Va.)

, and gas in place are a part of the land gro
Wilson v. Youst, 43 W. Va. - 28 2 - ne
2 vyhen the owne

White owned the one undivided eighth | 39 L. R. A. ee Rinne ni ego
gr 151 acres, and alleging that wells on | conveys to _— Eee enact sc angel
pre lands had shown that there pe | gas eee cant jo So Oe aeliwtt
: 1 r i residu : tine
San ie = ae | from the “surface,” as the gira. * -

S . : | j © > w
that such neighboring wells eg the great | the books. The oil and surface pods oe vi
erp Te ads Kk properties under distinct owners ips,
the oi] none the less a real corporeal property
than the surface or soil itself. Being pert
of the land, and thus owned by the owner
of the land, he can seyer its ownership.

ivi il
ers of seven-eighths, undivided, of gts
and gas in the entire tract, and concec g

poder the plaintiffs, unless steps — >
taken at once to protect or sell them. .
bill charged that the plaintiffs had been be
able to induce White to join shew - eo
porn wy rs spc yg eRe “They [oil and gas] are the eso poy
ac ves Resor : unable to develop, and conveyance—just rye nc le a
ee cae es i their interests therein. | or stone buried in the go nena & Bsa
operate, gorge or pts that White denied | & Gas, §§ 20, 52; Sayers : 4 nrg hares
one pay ee plaintiff's were joint own- — eee ‘me mi ag ot Raw!
: i i Am. & Eng. re oF :
Se tenants in ee ee oe oe san | thus severed in ownership, the girgei
gas; that ie pares eek him (White), and of | two separate interests ane sigs Tiartigen’
et Lag-saete Louis Bennett and others | ants. Virginia Coal - ee ae Dak
the two deeds vote plaintiffs have no prop- | Va. 332, 24 8, B, 102 , Theat, Ol Ses.
DO EE aad vi in the 151 acres until | § 280; Harris v. Cobb, 49 W. Va. 350.
oe ES eg © chats out of the ground, E. Presets armies oe
bat. Si eee a genres te et oie Gare) hereditament, and their any,
eli aig pe wwe Bennett to attended with all the attributes = a:
mgioe pene mig se yoreal heredita- dents peculiar to ownership of — a gt?
mr Lapeer tera on cae upon the 151 phen oh eee Painted a _
ment— ; ones | at the | 1035, 13 L. R. A. b-G © . St. Rep. 544
aie ci he ete Eset ne and note, 55+. Oil and 0 bare sed
praia oar ak isk and cost to him. and fall under these ger = Ragin
sigue pie saa fe <aek oil and gas were when Louis Bennett, in veg ge te a
The bill averred + artition and that the reserved seven-eighths of 203 Cea we
a snsctet parisee woud be promoted by | that rape ee ie oe carpe
pace at : in D i they had bee » sted n ex
eater a as ST ee elt coheirs—never passed to W ee  egesbe
asked the court to dec = the oil and gas in ed the surface; the Benne note here
— pagers bv White one-eighth, eighth - cag haga ae ree See mate
ace f act, 2 : 8 ani a
and sg Pat oj os ee oe a priygnaial’s of the oil and gas. The Bennett

ivided. 4 f 5 ‘ oil and gas to the ex-
proceeds so divic 4 pe own- | heirs ow ned the very

I : <napp, and Hoskins to be ened them. It makes no
sa een and White owner of tent of seven-eighths of

ers of § Pics eens

i il and gas in the 151 | difference that oil one gas aoe ee
pe gg ‘i ia oe ‘ lop such oil and wandering, for the present ques “a Pelee
Shing yy = an adhaek were not sus- | and the Bennett heirs might lose ‘ oA s .
pats reg Be ke ee ‘directing their | gas by their soygiriencrbchy ay bse a Me
‘eptible oO ar Roe ns 6 : : aN :
Scuie sale. gawe this decree, White ap- parle — eS rue r i on
his land, then this character of oil ena gas
would be relevant; but it is not eelexewe ie
deciding the character of the pdb egg thps
the Bennett heirs in the oil and gas. :
oil and gas are deemed yet in the _en
for the question before us. The oil and gas
were in the Bennett heirs before pce aca
nett’s deed to White. Of course, they —
vested in them as & real, corporeal entity an
property—a solid, substantial estate and .
erty, not a mere license to take payng gto
they remained in the same plight in o_
heirs after the deed to W hite. They w pe’
simply severed in ownership, Tt is eins “
suggested, but not urged, that the deer Ag
White “reserved.” does not “except. .
oil and gas. “Except” would have heen the
word, beeause an exception is of

ain first question coming UD is, have pis
plaintiffs such a property in the oil and gas

in the 151 acres as to demand a eae
by either process of division in kind; em

is, division of the oil and gas by eee eee
ed upon the surface, or by the oe i .
sale? For, if they have no such right, th :
can have neither. Sale is only a method :

partition when partition in ind Tr ie
had. A party, to have partition. nnust ~
title—a property in the thing. Have of
plaintiffs an estate, a property, in the oi

and gas? Do they own the oil and ane. ia
their places in the earth? Or do ines pai
a mere license to develop oil and sas, be
no property in the substance thereof, ply s
out ownership in the very oil and gas in place

until they bring them to the surface? Oil | proper

coe rere

ray

ere

aerate ee fame en €


<i ~
ty y. A . | !
ye oS | STATE OF NORTH CAROLINA, IN THE SUPERIOR COURT. é
\) x PERSON COUNTY. JANUARY TERM, 1934. i
qe
a STATE | a
| #.,
-VS- ) WRIT OF VENIRB FACIAS. |
E ) |
4 WALTER THAXTON  ) h
E TOM WILLIAMS ~° ) } a
TO THE SHERIFF OF PERSON COUNTY, GREETINGS: | i
\ The Grand Jury, at the Jamary Term of Court, 1934, having returned @ trus |
bill charging the defendants, Walter Thaxton and Tom Williams, with the capital of-

_ fenss of Murder in the First Degres, and the said defendants having been arraigned

; in opem Court and having entered a plea of not guilty, and the Court desming it noc- |

| i
| essary to a fair amd impartial trial of the prisoners, that there be a special ve-

nire of fifty (50) good and lawful men qualified to act as jurors in Person County |
ordered for the trial of said defendants:
YOU ARE, THERSFORBE, HYRUBY ORDERED to summons fifty (50) goed and lawful

men of your County, of good character, and qualified to act as jurors in your Coun-

|
ty to appear before the undersigned Judge of the Superior Court in the Court Roon,
|
i

in Person, at 9:30 a.m. on the card. day of January, 1934, to be sworn and exanined |

*NCéT<Ecee (UOSieg) ISON peqynooaqoeTe SyoeTQ *zeqTeM *NOIXVHL

as to their fitness to serve in the above entitled case and to be respectively ac-


‘

ep per peg ge gg:

- the deceased the prisoner was not of sound mind,

156 92 SOUTHEASTERN REPORTER ; (N.C.

he can be held responsible. The court instructs; choose between right and wrong is not respon-

. you that whether or not the defendant had a/|sible to the criminal law for an act which is

mental disease is a question of fact to be deter-| solely the product of such disease, although he

mined by the jury, that it is as much a question
of fact as to whether or not he had a bodily
disease, if such a question was raised. The
court charges you, further, that it is also a
question of fact for the jury to determine wheth-
er the killing of the deceased by the defendant
was the product of mental discase of the de-
fendant.

“he court instructs the jury that if you find
from the evidence at the time of the killing of

but affected with mental disease, that is in-
sanity, and that this unsoundness of mind or
alfection of iusanity was of such a degree as to
create an uncontrollable impulse to do the act
charged, by overriding the reason and judgment
and to obliterate the sense of right and wrong
as to that particular act, and deprive the pris-
oner of the power of choosing between them,
then and in that event the prisoner would not be
guilty of murder in the first degree, and the jury
should so find.”

The court further charged:

“Tf the prisoner at the time he committed
the homicide was in a state to comprehend his
relations to other persons, the nature of the act
and its criminal character, or, in other words,
if he was conscious of doing wrong at the time
he committed the homicide, he is responsible in
law, but if, on the contrary, the prisoner was
under the visitation of God, or had a diseased
mind to such an extent that he could not dis-
tinguish between good and evil, and did not
know what he did, or if he knew what he did,
he did not know right from wrong of the con-
sequences of his act, he is not guilty of any of-
fense against the law, for guilt arises from the
mind and wicked will.”

These instructions appear to follow very
closely those which are approved in State v.
Haywood, 61 N. C. 377, which have been ap-
proved in many subsequent opinions of this
court. State v. Potts, 100 N. C. 458, 6 S. E.
637; State v. Spivey, 132 N. C. 989, 43 S. BE.
475.

State v. English, supra, is a recent case
dealing with the degree of insanity requisite
for a defense upon a charge of homicide.
The rule is very clearly defined and the law
well stated, and it is uunecessary to do more
than to refer to that and the decisions cited

therein.

[9] In several prayers for instruction, the
prisoner requested the court to charge the
jury, in substance, that although his mental
condition was such that he could distinguish
right from wrong and understood the wrong-
ful character of the act which he committed,
yet if he was impelled by an uncontrollable

impulse which he could not resist to coumit

the act, he would not be guilty of murder.
This doctrine of “moral insanity” is support-
ed by authority in the courts of some of the
states.

The case of Parsons v. State, 81 Ala. 577,
2 South. 854, 60 Am. Rep. 193, is a leading
case in which the whole subject is discussed,
and the cases reviewed. In that case the

Supreme Court of Alabama holds that:

may know right from wrong.”

This decision is reviewed at length by the

reporter (60 Am. Rep. at page 212), and a
full summary given of the substance of judi-
cial decisions. The learned commentator

states his conclusion as follows:

“It is a perfect defense to an accusation of
crime if the accused, at the time he committed
the act was afflicted with a mental discase to
such extent, as to render him incapable of de-
termining between right and wrong, or of per-
ceiving the true nature and quality of the act
done.”

Again:

“No form of moral or emotional insanity is
a defense against a criminal accusation.”
This is a very clear statement of what we
understand the law of North Carolina to
have been without change since State v.
Haywood, supra.

This doctrine of “moral insanity” is ex-
pressly repudiated in the learned opinion of
Justice Manly in State v. Brandon, 53 N.C.
46S. In that case the learned judge says:
“The law docs not recognize any moral power
compelling one to do what he kuows is a wrong.
‘To know the right and still the wrong pursue’
proceeds from a perverse will, brought about
by the seductions of the evil one, to which, nev-
ertheless, with the aids that lie within our
reach, as We are taught to believe, may be re-
sisted and overcome, otherwise it would not
seem to be consistent with the principles of
justice to punish any malefactor. There are
many appetites and passions which by long in-
dulgence acquire a mastery over men more or
less strong. Some persons, indeed, deem them-
selves incapable of exerting strength of will
sufficient to arrest their rule; speak of them as
irresistible, and impotently coutinue under their
dominion; but the law is far from excusing
criminal acts committed under the impulse of
such passions.”

This case is cited with approval in State
y. Potts, supra, wherein Chief Justice Sinith
says: :
“We have not allowed, as exempting from the
consequences of crime, what is called ‘moral in-
sanity’; that is, an alleged uncontrollable im-
pulse to commit an act with the mental faculties
in full force to comprehend its criminality and
wrong.”

[10] His honor instructed the jury that the
burden of proof upon the plea of insanity is
on the defendant, not to satisfy the jury be-
yond a reasonable doubt, but to satisfy them
that at the time he committed the offense,
he was insane. The prisoner excepted to
this charge. We understand it to be well
settled in this and other states that in a
criminal prosecution where the defense is
insanity the burden of proof is always on
the defendant to prove such insanity, not be-
yond a reasonable doubt, but to the satis-
faction of the jury. State v. Hancock, 151
N. C. 699, 66 S. EB. 187; State v. Starling,
51 N. C. 366; State v. Brandon, supra.

Upon a review of the entire record, we find

“One who by reasoh of mental disease bas lost
the power of will to. control his actions and

no error.

N.C.) FOWLER & LEE y. WEBSTER 157

Q73 N. C, 442)

FOWLER & LEE y. WEBSTER et al.
(No. 422.)

(Supreme Court of North Caroline. April 25,
1917.)

1. Trusts - @-12—Exemprions—StTaTutes—
CoNSTRUCTION—SVPENDTHRIFT TRUSTS.
A trust created under Revisal 1905, § 1588,
providing that it shall be lawful for any person
by, deed or will to convey any property which
does not yield at the time of the conveyance a
clear annual income exceeding $500 to any per-
son in trust to receive and pay the profits an-
nually or oftener for the support and mainte-
nance of any child, grandchild, or other rela-
tion of the grantor, for the life of such child,
grandchild, or other person, with remainder as
the grantor shall provide, and the property so
conveyed shall not be liable for or subject to be
seized or taken in any manner for the debts of
such beneficiary, is not invalid as creating a
personal property exemption in favor of non-
residents,
(Ed, Note.—For other cases, see Trusts
Dig. § 10.] - =
2. Trusts’ €=>152—“SpenptTurirr Trust’’—
RiGHT To INComE,
A “spendthrift trust,” under Revisal 1905, §
1588, is one wherein the cestui has no right to
the principal or income, and the income is not
ie payment of the cestui’s debts.
. Note.—For other cases,
py ie , See Trusts, Cent.
For other definitions, see Words and Phrases
First and Second Series, Spendthrift Trust.] :
3. Trusts €>136 — SpPeNpDTHKIFT TRusts—
bg cate TRustT.”’
spendthrift trust is not “passive,” but the
trustees are charged with the duty of holding
ey paring out the income,
[Ed. Note.—For other cases, see Trusts
De Foe i sts, Cent.
For other definitions, see Words and Ph
] 2 rases,
First and Second Series, Passive Trust.)
4. Trusts €=152—‘Spenprugirr T v.
poe To INCOME. ee
trust “to receive and pay the profits an-
nually or oftener for the support and’ mainte-
nance of the cestui during his life” is an active
rt pe yi trust, and the cestui has no con-
ol o e income, which i j -
ecution for his debts. Sipe eis 0

[Ed. Note.—For other ca
Dig. § 196.] ses, see Trusts, Cent,

Appeal from Superior Court, Union Coun-
ty; Cline, Judge.

Action by Fowler & Lee against W. M.
Webster and others. Decree for defendants,
and plaintiffs appeal. Affirmed.

J. C. M. Vann, of Monroe, for appellants,
Stewart & Mcltae, of Charlotte, for appellees.

CLARK, ©. J. This is a proceeding to
garnishee the trustee in a “spendthrift trust”
in order to subject the income accruing from
the fund in its hands to the payment of a
debt of the cestui que trust, who is a non-
resident.

eS § 1588, provides:

‘Spendthrift Trusts Authorized.—
lawful for any person by food inet kan
vey any property, which doesnot yield at the
time of the conveyance a clear annual income
exceeding’ five hundred dollars, to any person in

oftener for the support and maintenance of an
child, grandchild or other relation of the rhew|
tor, for the life of such child, grandchild or
other person, with remainder as the grantor
shall provide; and the property so conveyed
shall not be liable for or subject to be seized
or taken in any manner for the debts of such
ong Lage oh or — relations, whether
ame be contract i
star Gee ed or incurred before or
This trust is created by a devise, and the
parts pertinent to this controversy are a di-
rection that the fund specified is given “in
trust to receive and pay the profits, annually
or oftener, for the support and maintenance
of my son, McRae Webster (W. M. Webster),
during his lifetime,” with provisions for the
disposal of the fund at his death, and adding:
“This trust is created in accordance with the
provisions of section 1588 of the Revisal of

1905, and the said company is hereby authoriz-

ed and empowered to a inv
reinvest the said iat stee ee
the judgment of the proper officer of the said
corporation it may seem best.”

{1] This trust is created in exact compli-
ance with the object and the language of the
statute. The learned counsel for the plaintiff
insists, however, that it is invalid because
it confers the “personal property exemption”
on a nonresident. We need not. consider
whether the Legislature is forbidden to
create a personal property exemption in favor
of a nonresident; for that is not the effect
of this statute.

‘(2] The learned counsel for the plaintiffs
admits that the corpus of the fund is not the
property of the cestui que trust, and there-
fore that cannot be touched, but he insists
that the income therefrom is to be paid over
to the defendant, and, becoming his property,
it can be subjected to his debt. But this
ignores the language of the statute and the
terms of the trust created by this will. This
is not a passive trust as to the income which
would therefore be executed under the stat-
ute of uses, any more than it is as to the
corpus of the fund. A trust in which the
trustee pays over the income to the benefi-
ciary could be created without the necessity
of this statute, and in such trust the income
is the property of the cestui que trust, and
can, of course, be subjected to the payment
of his debts. It was precisely for this reason
that equity created spendthrift trusts, which
in this state, and some others, are now stat-
utory. This object is expressed in Beach on
Trusts, § 554, which says that these trusts are
created for the benefit of such persons as
“are deemed incapable of holding or dispos-
ing of this income.”

[3] Spendthrift trusts are not created mere-
ly for the purpose of preserving the corpus
of the fund intact for the remainderman or
on other trusts, leaving the beneficiary to use
the income as he may see fit, but they re-
quire the trustees to hold and disburse the
income itself. The cestui que trust has no

trust to receive and pay the profits annually or

right to touch one cent thereof. It is this

¢€=For other cases see same topic and KEY-NUM

BER in all Key-Numbered Digests and Indexes

LBAMA

pr:

OF

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MIVERSIT

ae

Pech ba

=| the

Pri
AS

bey wa Dexia 6
%, ah es

Se RaniAm that

; “holes pduwadtternll
, reat « ‘

phe
ea .
nd well 0 do |

ot
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' §. Jury €=>103(3)—CrounaL ProsecuTion—

154 92 SOUTHEASTERN REPORTER

(N.C.

Neither the plaintiff nor his mother was}! formed an opinion, but that he can eliminate it

turned out of possession by the defendant, | f

nor does it appear that there was any de-

rom his mind, and give the prisoner a fair

trial.

[d. Note.—For other cases, see Jury, Cent.

mand made for an accounting as to the rents Dig. § 463.]
and profits and a denial of the right by the 7. Homicrpe ¢==253(3) — Murper iw First

defendant.

[4] The charge is also objectionable be-
cause it is not qualified by any instruction :
to the jury as to the effect of the minority t
of the plaintiff, and as there is no evidence | j

DEGREE —. NECESSITY OF ‘‘DELIBERATION’’
AND “PREMEDITATION.”’

To convict for murder in the first degree,
he state must show beyond a reasonable doubt
hat the prisoner had formed, prior to the kill-
ng, with deliberation and premeditation, a

that the adverse possession began in the life-| purpose to kill deceased, the terms “delibera-

time of the mother of the plaintiff if, as
his evidence tends to prove, he did not be-
come 21 until 1910 or 1911, and his action

was commenced in 1911, the possession of | Cent. Dig.

the defendant could not avail as against

For the error pointed out, there must be
a new trial.
New trial.

(173 .N. C. 761)
© STATE v. TERRY. (No. 877.)

First and Second Series, Deliberation; Premedi-
him. tation.]

8. HomicipE €=270—MurDER—QUESTION FOR’
and whether the killing was the product there-
of, were for the jury.

Cent. Dig. § 564.) 's
(Supreme Court of North Carolina. April 25,|9. CriminaL Law ¢=51— Derense — MoRAL ve
1917.)

tion” and “premeditation” involving a mental
process embodying a specific, definite intent to
kill,

{Ed._ Note.—For other cases, see Homicide,’
§ 525,

For other definitions, see Words and Phrases, ~

JuRY—INSANITY. ; y's es
The questions of the prisoner’s insanity,

(Ed. Note.—For other cases, see Homicide, ;_

i.
INSANITY. P : 7S ae
‘No form of moral or emotional insanity is a*y
1. CRIMINAL Law €=1044 — APPEAL AND defense in prosecution for murder; the law not

ERBROR—SUMMONING JURY FROM ADJOINING
CouNTY—NECESSITY OF MOTION. E
Where no motion was made by a prisoner

{[Ed. Note—For other cases, seo Criminal -

to summon venire from adjoining county, he Law, Cent. Dig. § 64.]

cannot complain on appeal. ae
[Ed. Note—For other cases, see Criminal
Law, Cent. Dig. §§ 2672, 2674, 2675.]

10. HomicipE €==151(2)—Murper—Insanity!!
—BURDEN OF PRoor. : _ an
The burden of proving a plea of insanity,

2. CamanaL Law €=71152(2)—APPEAL AND is on the defendant, and the prisoner must prove
ErroR—SUMMONING JURY FROM ADJOINING such insanity at the time of the killing, not be-.

CouNTY—DISCRETION oF CoURT. : .
Since it is within the court's discretion to
grant a motion to summon a venire from an
adjoining county, the matter will not be re-
viewed. Ps
{Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 3056.]
3. CRIMINAL Law €666(1)—TRIAL—STATE’S
Kicut to SELEcT WITNESSES. :
The state solicitor has a right to select his
Witnesses and use only such as he thinks best,
and he is not compelled to place all of the
state’s witnesses on the witness stand, and if
the prisoner desires testimony of those not call-
ed, he should call them for examination, -
{Ed. Note.—For other cases, see Criminal
Law, Cent. Dig. § 1567.] f
MINAL LAW @€1119(4)—APPEAL—Mat-
— Not Suown BY ReEcogp — IMPROPER
MENT. .

AV bere the record does not substantiate
claim of improper argument of state solicitor,
it will not be reviewed. ae
{Ed. Note—For other .cases, see Criminal
Law, Cent. Dig. § 2929.]

CoMPETENCY—IORMATION OF OPINION. |
Where a juror stated he had formed an opin-
jon, but on cross-examination testified he could
eliminate it from his mind and give accused a
fair trial, it was proper to admit him to the
jury box.
[{icd. Note.—For other cases,*see Jury, Cent.
Dig. § 463.] ‘
. JuRY € =103(3)—ComPeTency or JUROR—
eg oF OPINION — DISCRETION OF

URT, : : :
“ is within the court’s discretion to admit

yond a reasonable doubt, but to a jury’s satis-’
faction. id
{Ed. Note.—For other cases, see Homicide, '
Cent. Dig. § 277.]

Appeal from Superior Court, Guilford
County; Webb, Judge.

J. A. Terry was convicted of murder in
the first degree, and appeals. No error.

S. Clay Williams, Oscar L. Sapp, and
Jerome & Jerome, all of Greensboro, for ap-
pellant. Attorney General Manning and As-
sistant Attorney General Sykes, for the State.

BROWN, J. In apt time, after rendition
of the verdict, the prisoner filed a written
motion for a new trial, “for that he bas not
had a fair and impartial trial and such as is
guaranteed to him by the laws of the land”:

{1,2] (1) Because the special venire from
which the jurors were chosen to try the
prisoner should have been summoned from
some other county than the county of Guil-
ford. We fail-to tind in the record any mo-
tion by prisoner to summon a venire from
an adjoining county. Had such motion been
made and denied, it could not be reviewed
by us, as it is a matter within the sound dis-
cretion of the judge of the superior court.

[3] (2) Because the state had under sub-
peena and in attendance Dr. Campbell, an ac-
knowledged expert in diseases of the mind,

to the jury box a juror who states that he has

and failed to offer him as a witness. The

¢=—>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

+

recognizing any moral power compelling one rat
to do what he knows is wrong.

|

ce

Bea a eR Oe

Wabi

N.C.)

state solicftor had the right to select his wit-
hesses and use such only as he thought best.
There is no law that compels the solicitor
to place all of the state’s witnesses on the
witness stand. If the prisoner desired the
testimony of Dr. Campbell, he should have
called and examined him,

[4] (8) Because one. of the attorneys for
state, in concluding the argument, was per-
mitted to make improper and prejudicial re-
marks to the jury. ‘There is nothing in the
record to substantiate such statement, no
finding in the case on appeal that such im-
proper remarks were made, and no exception
taken to them at the trial. Had such re-
marks been made, it was the duty of pris-
oner’s counsel to call the attention of the
court to them in order that the judge may
correct them. For failure todo SO, an excep-
tion should have been taken.

(4) Because the prisoner was required to
assume the burden of proof as to his insani-
ty. This will be considered later in the
course of this opinion.

There are numerous assignments of error,
all of which relate to three subjects, viz. the
composition of the jury, the charge of the
court, and to the burden of proof.

(5, 6] The prisoner excepted to the ruling
of the court declaring that three jurors were
duly qualified. The peremptory challenges of
the prisoner were exhausted, and the chal-
lenged jurors could not be stood aside. Upon
& very exhaustive examination, these jurors
admitted that they had read much about the
case in the local papers, and had heard a
great deal about it in public Tumors and had
formed an opinion that the prisoner was guil-
ty. They further stated that they would go
into the jury box under the belief that the
prisoner was guilty, and that it would take
evidence to remove that impression. One of
the jurors stated that in his opinion the bur-
den of proof would be on the defendant to
prove his innocence, and that unless he did
So, he (the juror) would return a verdict of
guilty. Upon cross-examination, as well as
upon examination by the court, the juror tes-
tified that he could “eliminate from his mind
all that he had heard or read, and that he
could go into the jury box and be governed
Solely by the evidence Produced upon the
trial and by the charge of the court and that
he could give the state and the prisoner an
absolutely fair trial. Upon examination by
the judge, the juror stated again that he
could render a verdict uninfluenced by any
opinion he may have formed or anything that
he may have heard or read. The court in his
discretion found the said jurors to be impar.
tial, and had them tendered and sworn.
This ruling of his honor was in exact accord
with the decisions of this court in the very
recent case of State v. Foster, 90 S. E. 785,
which cites with approval the case of State
Vv. Banner, 149 N. CG, 519, 63 S. E. $4, in
Which the same questions were asked and

STATE y. TERRY tes

fore this court. The decision there was that
a juror, having been tested according to the
Standard used in the present case, was a
competent juror, and that his admission to
the jury box was in the sound discretion of
the judge. State y, English, 164 N. GC. 498,
80 S. E. 72.

The prisoner excepts to the charge of the
judge upon the plea of insanity, and tenders
several prayers for instruction in respect
thereto which the court refused to give. It
is unnecessary to Consider these assignments
of error seriatim,

The prisoner is charged with the murder of
one John R. Stewart on the 15th of July,
1916. All the evidence tends to prove: That
On that day the prisoner went to the resi-
dence of the deceased armed with a pistol.
At the time the deceased and his wife were
in the cow barn, milking a cow. That the
deceased was sitting on a box milking a cow
at the time when the Prisoner approached ;
the prisoner said: “Hello, Mr. Stewart.”
The deceased turned around and said: “Hel-
lo, Terry.” ‘The prisoner leaned forward
with a pistol in his hand and shot and killed
‘the deceased. At the time the prisoner was
So close to the deceased that the face of the
latter was burned by the powder. There is
also evidence of some ill feeling upon the
part of the prisoner about some money which
he claimed the deceased owed him and had
not paid.

(7] It is not questioned that the evidence
tends strongly to prove a willful, deliberate,
and prenieditated killing. The plea of in-
sanity interposed by the prisoner is undoubt-
edly supported by much evidence, although
strongly combated by the state. In his
charge to the jury, the learned judge below
upon this plea stated the contentions and the
evidence relied upon by the prisoner, as well
as by the state, with great clearness, full-
ness, and fairness, and instructed the jury
very carefully as to what constitutes insan-
ity and its effect when ‘the plea is establish-
ed. In his instruction, the judge carefully
followed the numerous and well-settled de-
cisions of this court. He instructed the jury
fully as to what constitutes murder in the
first degree, and that it is necessary for the
State to show from the evidence beyond a
reasonable doubt that the prisoner, prior to
the time of the killing, formed & purpose to
kill the deceased, and that such design to
kill was formed with deliberation and pre-
meditation, and that in pursuance of such
design, the prisoner killed the deceased.

The court further instructed the jury that
the terms “deliberation” and “premeditation”
involved a mental Process embodying a spe-
cific, definite intent to kill, and that such
definite intent must have been conceived at
some time before the deceased was killed.
[8] His honor further ‘instructed the jury:

“In this case the defendant interposes a plea

like answers returned as in the case now be-

of insanity, and he says by this plea that he
did the killing, but the act is not one for which

¢
*JT6T *6 tequeaeN uo (pxosTIND) ISON S*oeTe fog faqtum S*y Autor ‘TUaL

“RAMA

NIVERSITY OF f’

Gee at


JUDGMENT,
WALT SR THAXTON AND

TOu WiLL IAUS.

x

This cause coming on to be heard before the under ei gned Gudge and a jury!

at January term, 1934, of Person County Superior Court, upon bill of indictment I;

}
I!

with the murder of Butler Gentry and boing’

| :

charging Walter Thaxton and Tom Williams

heard, and the jury of thirteen good and lawful men having been duly chosen, sworn,
and smpanelled , after hearing the evidence of tha witnesses, the argument of Goun~’
sel for State and defendants, and the charges of ths Court, retire to consult of
this verdict, and afterwards return into Court, and in due form say for their
verdict that both defendants, and each of thom, are guilty of murder im the first

degrees, with recommendation of mercy for Tom Williams.

It is thersfore adjudged that both defendants, and each of them, are guilty |

of murdor in the first degree, and it is ordered and ad judged that both said defend- |
ants Walter Thaxton and Tom Williams be forthwith conveyed by the Shoriff of Person
County to the State's Prisonnin Raleigh, N. C., and there to be securely held until
Tuesday the 23nd. day of March, 1934, when and where betwesn the hours of 6 A, M,
and 6 P. M. they and each of them. “= :.%- Walter Thaxton and Tom Williams shall suf-
fer death by eloctrocution in the manner now provided by law.

This Jan. 23, 1934,

Wi. A. Devin

Judge Presiding.


i
i

H

cepted or reloased under the direction of the Court, as they are called in open:
Court, and have you this writ returned to the Clerk of the Superior Court on the
23rd. day of January, 1934, with the names of thea jurors summoned. : @
HEREIN FAIL NOT,
this the cand. day of January, 1934,

W. A. Devin ;

Judges Presiding.

Liss al Jurors fummonedty Cucs iciucry S224, 1054,

Je Hs NOVTIS, 12.00. Tingen, 1, i. Day, ©. il, Ranes, Arthur Banden, ©. ¥,
UOpeS, G4. G. Woody, J. Y, Humphries, Will Humphries, W.:W. Rogers, O.. i; penises
L. F, Sanford, Charlie Clayton, 0. J. Vanhook, Charlie Monk, Clavin Long, Calvin

e

Hawkins, Tommie Hawkins, Tom Rimmer, O. C, Hawkins, Walter Hawkins, C.. Long,
willie Lreaze, Jule Jones, Guy Phelps, Jim Long, Bther Maize, A, L, Boyd, Tom
Cowles, Lewis Fradsher, R. D. Newton, Howard Hester, C. BH. Hester, E. A. Sipes, Ira]
Alien; Scott Hoeatter, W. W. Crabties, P. i. .prigss.-3. A, Whitfleld, F. L. Moors,

Ollie Long, Richard Holeman, F. R, Wilkerson, J. J, Regers, Willie Berry, Dick Ro-

gers, Willie Gray, Tom Pearce, G. C. White, and Willie Fox.

NO. 4 --+---- STATE )
)
-VS- ) INDICTESNT -- MURDIN,
3 |
WALTUR THAXTON ) : Les ‘
“TOM WILLIAMS, ) ’

Defendants come into Court and pleads Le uate a8 the following

sury is impensicd, to wits  W. FP. Brigas, A. R. Davis, J, “Trank Minbericke: Dick

a er)

Rogers, Tom Pearce, A. L, mand, O. ©. Wawkins, I. N. Day, Howard Hestors W. We Fox,

Ira Allen, F. R. Wilkerson, and walter Hawkins, who -rendered a verdict of murder in
the first degree. — ee i
NORTH CAROLINA, : S ~ Superior Court
PERSON CO. . : | "JAN, TERM, 1934.
STATE )
)
-VS- JUDGMENT. :
WALT TSR THAXTON AND )
TO WILLTAMS. )

This cause coming on to 65 Heard before Ae under signed ae and a jury

at January term, 1934, of Porson ey Superior Court, ween bill of indictment |

#y

charging Walter Thaxton and Tom Williams with the murder of Butler Gentry and boing |p


> THOMAS, Clarence 0., bl

bl, elec. NO3P (Forsyth) 4/27/192 8

————— tee naa

~ gen Reserva

“But it don’t matter, 80 ssa
COC ac seeing as how the Lord Jesus is al-
ready to take mse up and give me &

acat in His Kingdom. And those
that have used me as & footstool.

e .® on his earth, unless they repent,
e . ous will be a footstool for me in

{ heaven.” 8
demonstrative in his talk. He had
been told that all hope was gone,
er V or S and that he would gu to the chair
tomorrow morning at 10:30 o'clock.
-. Mr. Bridges had: assured him that
death by electrocution must be
‘| painless; that it came too quickly
oom ears for him-to know anything about
\ it. He wasn't, however, worried
about the pain; nor was he worrled

so much about the going. He waa
just excited, wildly so, about the

Clarence Thomas to Die approach of the fateful hour. ;
‘jin Electric Chair for Thomas was convictrd in For-
syth County Superior Court of the
Murder murder of the night watchman.

He was never tried for the murder

a of the policeman. He ‘préevioasly.
Sees Heavenly had confessed to the murder of
re acd while remkine rindif-
y erent when questions were put to}:
Seat Reserved him about the murder of the
watchman. This afternoon how-
Killed Ni h W . ever, 20 he insisted to the Pardon
Killec ght atchman | Comminsioner, he told-alt be knew
a “wre. aa a except one » an it was
and Winston-Salem The aerate as to why he killed, the
° watchman. I kei
Policeman + *T was aleep when the palice:.
a Bat, ant Wagon nt rai]
By BROCK BARKLEY ‘first thing 1 knew 1 was)
{From The Journal's Raleigh Bureau) waked Uh 07 nomebody hitting pir
Raleigh, April 326. — Clarence hiss ger wa a “phot - ae
Thomas, a negro, under sentence pibitede x oeraliona tol whe tace
to'die in the electric chalr tomor- which he claims cam ee Md th
row morning, cpened his heart to policeman’s atick ° innit
Pardon Commissioner Edwin ‘on’t Tell Wh ee
Bridges this afternoon, confessed “J just don’t want ‘ye why I
to the murder of a Winston-Salem killed Rl erie fs bial
policeman and a night watchman moanear wm just confessing tol
ana ene the orime on “the you. tHe T killed jhim. Don’t auk
GOVT ne ge me why, and jus et that pass.”
“7 am religious now, oh, Lord .
yet, I'm religious now,” he moaned Sunes ot both be Ae ae. ine
as he talked with the Commissaion- i .
ae ig oa ae eth Row. lt forgiveness. He wasn't satisfied,
tn bldg! religious this way when|: crepe" shat 3e eae pees : ail
ought it was going to be a long rash «3 "it's. alright--he said.
time before I died. But the devil iy Fete on Page Twelve) ant

'got hold of me; and that's why I
killed them two men, and that's

why I'm “going to ‘dite tomorrow. “7


Local Black to ;
Life for Murder T oday

eo St

Forfeit

“

(Continued from Page One)
“On earth they forgive you and
det they don't. If they really for-
gived.you Uke it sazs in the Bible
they would turn you out of prison;
but-on earth here they just forgive
you and let you stay in prison.
But I've asked them all to forgive
me, and I hope they will cause I
know the Lord Jesus has forgiven
me, and promis me a séat on
high in heaven.”
Sees Nene Once

Thomas expresved bnilnseii 45
more reconciled to his fate by rea-
gon of the fact that he had been
permitted to see his wife and chil-
dren in recent weeks. A while ago
he told Mr. Bridges that he
wouldn't mind dying so much if
he could just see them. The Com-
missioner furnished the money for
their transportation here. They
came for a day. Then two days ago

see him. That helped. Thomas
said; -and this afternuon he had
made all his spiritual plans for a
departure tomorrow morning.

Wife Leavesto’ -
Bring Back Body

Maggie Thomas, wife of Clarence
O. Thomas, who is to die In the
electric chair at State Prison this
morning, left yesterday with T2
bert Guess, of Guess, McCombs an
McCauley, negro undertakers, to
bring the body back to Winston-
Salem for last rites and interment.
Thomas’ body will remain at the
undertaking establishment here un-
til I o’clock Sunday afternoon at
which time’ funeral services will
be conducted—at. . Bethel Baptist
Church, followed by interment in
the Odd Fellows Cemetery.

Convicted in January

by a jury in Forsyth County Su-
perior Court in January of first
degree murder in connection with
the slaying of Mr. Graham. Judge
Roy L. Deal, presiding, sentenced
the negro to die in the electric
chair the third Friday In February,
‘but fillng of appeal papers requisite
to staying execution caused a post-
ponement of the execution. Ap-
peal was not perfected and At-
torney General Brummitf asked for
a dismissal of the appeal several
days ago.

Evidence at the trial tended to
show that Thomas-stole his way
into the yards of the R. Ju Rey-
nolds Tobacco Company on_ the
night of December 9 and struc
Mr. Graham over the head with a
heavy fron pipe. Mr. Graham died
in a local hospital three nights la-
ter.-- He never regained conscious-

ness.

one: of his children. came back t9}

Clarence Thomas was convicted’

a nt

NObitain Claes .

Working on Information readhy..
ing them fronra fellow employer
of Mr. Graham, Sergeant lL. °G.
Teague and a squad of police offi-
cers and special] officers from the
R. J. Reynolds Tobacco Company
surrounded the home of Thomas
on Oak Street the night Mr. Gra-
ham died to arrest the negro. When

DL a gph eeiae aright sees EN woot ca voare
and approached the bed In which
Thomas was’ sleeping, a shot was
fired and Sergeant Teague, called
to his comrades that he had been
shot by omas.
Lived Two Wecks

Sergeant Teague was removed to
a local hospital where he: lived for
about two weeks, Thomas was

never tried on a chirge of shooting .

the officer, although a Grand Jury
found a true biil charging him
with first degree murder. The
State prosecuted Thomas on the
charge of killing Mr. Graham and
when a first degree verdict was re-
turned on this count, the charge of

murdering Sergeant Teagu was
not prosecuted. -
Plainclothes Officers J, R.

Crutchfield and E. I. Tucker, of -
the Winston Salem Police Depart-

-ment, and B. J. Lee and F. L

Kreeger, special] officers for the
R. J. Reynolds Tobacco Company,
Ve eee bY LY derrsspas Overy basa idaing ww

witness the execution,

Iartin Faces Twelve
Charges of Bad Che

When_J. Frank Martin, ¢
bury, secretary and gener’
ager of the Stokes County
of Commerce, managed
five cases, charging gd
ing worthless checks.
yesterday morning 1!
court, seven additio
charging giving wo
were served on him
Sub -equently, Mr.
trial this mor’
charges of givinv

Since Januar’
tin is alleged
merchants 7
worthless c’
rants were
In each 0’
tried, Jv
Mr. Me
good a’

Mor
Mart’
sur
chr
ar
ft:

Ud


en

66 - HISTORICAL SKETCHES

emies, the substance of which has already been given here.
A note accompanying this sketch says—““The manuscript
sketch of Franklin County is unsigned and it has not been
possible to ascertain the author.”

Settlement of the County &c.) Warren from its bordering on
Roanoke was settled sometime before Franklin—as lands got scarce
new adventures were obliged to move more Southerly—about the
year 1740 Mr. John Terrell the ancester of the Family of that name
who now resides in this County was the first person that made a
settlement on the south side of Sandy Creek—no doubt entries had
been made before this time but the dread of the Indians who were
then numerous, and the idea of being a first settler deterred Persons
from advancing—The County was then part of Edgecombe—

Remarkable occurences &c.) History furnished few more tragi-
cal events than the following which took place in this County—
about the year 1755 there was a man of the name of William Thomas
who had been some time settled on Flat rock Creek—that happened
to be an unfavorable Crop year and there was little prospect of
Most the New settlers main crops—he had a wife and seven Children
the eldest about ten years old—he had no meat & figured to himself
that his family must starve—this idea brooded in his mind till he
formed the dreadfull resolution of putting them to death—one
Evening he sent his two eldest who were sons a considerable distance
from the house to burn brush—having set them to work he returned
to the house and cut the throats of his wife who was far advanced in
pregnancy & five of his Children—he went back to the new ground
where he intended to have thrown his sons in the brush fire—but
glutted with blood & thinking they might be of service to him he

brought them home and spread the alarm that the Indians had
committed the murder—the report was generally believed and no
further inquiry was made—towards the close of this bloody scene
he made a cut at the throat of a little Girl about six or seven years
old—she retreated into a small porch belonging to the house—
having finished the business within he soon followed her—on his
advancing she exclaimed “pray Daddy don’t kill me—help me to
stop this blood”—the inhuman Monster scattered her brains with
a hominy Pestle—he staid sometime in the neighborhood but
shortly after went to a distant County—the last words of his Infant
Daughter sounded hell in his ears—no change of place or situation

ee ae Re ae

“lig ii pa

OF FRANKLIN COUNTY :

could efface them—the appeal of the little innocent continually’
haunted him and stung him more than the murder of the rest—
after an absence of two years he returned to the same spot—was
taken up on suspicion—confessed his Crimes, was tried and executed
at Halifax—his wife & five Children were buried in the same Coffin
and the grave is still to be seen adjoining the Glebe the seat of Alex
Fanconer Esq—this relation we have from a living Witness who
viewed the dead bodies the following morning— — This County
was remarkably Patriotic during the War—had very few disaf-
fected Persons and turned our her quota with great alacrity—she
can boast her full proportion of-Continental Officers and soldiers—

General & Individual Wealth) There are few if any wealthy
People in Franklin—The Inhabitants for the most part enjoy a
competency—they dwell in comfortable houses, have snug planta-
tions, make enough to support their families genteelly, & to educate
their Children—

Towns) Lewisburg the County Town was established in the year
1779g—it is situated on Tar River contains about twenty neat
houses and is in a very flourishing State—the main post road runs
through it and the Northern and Southern Stages meet here three
times a week—It was named after Lewis the XVI the late unfortu-
nate King of France—

Learning & State of Society) Altho Franklin cannot at present
boast of any first rate Characters yet it is boldly asserted that she
possesses as respectable a Yeomanry as any County in the State—her
Citizens in general are men of industry, of handsome information
and eager after knowledge—and the desire which all classes mani-
fest of properly educating their children does them the highest
honor.—

Foreigners) There are few foreigners in the County and those
are from Scotland & Ireland—while in this subject it would be an
Act of injustice to departed worth to omit the names of Charles
Cupples and Thomas Mitchell—Parson Cupples was from Scotland
and for many years before and during the revolution was the Clergy-
man of St. Johns Parish which included this County & Warren—
he is said to have been a Man of Learning and of great worth—his
foibles if he had any were of the head not of the heart—he was
much respected, and his Parishioners to this day talk of him with
veneration & esteem—to his Eternal honor it ought to be recorded
that he was among the few of the Established Clergy who boldly


142 SOUTH EASTERN REPORTER (N.C.

474

struction is asked as to a particular stnect hed
the case presented by the evidence, it shou - ;
iven by the court with substantial conformity Gout “at Neri” Gaxathia:
“ai the prayer. We have so distinctly held re- Apt 141, 1928.
cently in * * * Horne v. Power Co., 141 N. : cia
C at age 58 [53 S. IE. 661], in which Justice Criminal law 1081—Failure of de i
Gamiee speaking for the-court and quoting ries eartaitibl Page eo to, property, prosecute
: Sts , Dunlop, 65 N. C. < tice of appeal, required dismissal,
ny ee rae pas AT i asked upon an pues srsared ae face. at recerd:
assur acts which there is evidence ak caddies tan iulien
tending to prove nnd taser questions of A” won jake = ier failure of defendant ee
‘whi , perti it is the F , ¢ .
raised which are pertinent to so grantees go prosecute notice of appeal = Pee so ccs at e8
eee rai aoe ae aang distinctly held to require ecapappen sarge pIagcesr
poi i e ro
neesta ee ea tk ter. hal find the assumed iS gregh ag no er
1 Ss, F; .
pears of facts; and so in respect to every state °

a3 n
: ges Pa "vad ae Sesig ese OARS Appeal from Superior Court, Forsyth Coun-
the evidence.

bie ty.
instant case, the plaintiffs duly : CE A aha
iene pepe instruction on the subject Clarence Thomas was co

fk:
i j that they and he appeals. Appeal dismisse :
- ap teneet> f aeiee tee ie between D. G. Brummitt, Atty. Gen. and Frank
nant cat his principal, the decisions are Nash, Asst. Atty. Gen., for the State.
hat where the principal, with 2
patie a of the facts, accepts the bene- STACY, ©. J. This was a criminal cng
fits of a contract made in his behalf, he must cution tried at the January term, 1028,
also bear its burdens. MeNair v. Finance Forsyth superior court, upon an in etment
Co., 191 N. C. 710, 133 8. B..85. charging the prisoner, ee iy rene
[4] True, the evidence of the defendant (alias C. O. Thomas), with a capita elony,
Security Life & Trust Company is to the murder in the first degree, sate tes Med
effect that F. G. Spearman was acting for in a conviction and sentence of ~e oe
himself and not as agent for said trust com- defendant gave notice of appeal, but hia
pany in negotiating the loan in question, jas not been prosecuted as required | :
which seems to have been accepted by the rules, State v. Taylor, 194 N. C.7 8, 140 8.
jury. Non constat, there is other evidence ~ B. 728, Hence the motion of’ the stor er
the record tending to support the position o General to docket and dismiss must bee :
the plaintiffs, and, under this evidence, their lowed. State v. Dalton, 185 N.C. ha 8
view of the case, on the question of ratifica- E. 881. But this we do only a an
tion, should have been submitted to the ¢xamination of the case to see that no 8
twelve. Waggoner ¥ appears on the face “= eae :
i he subject in age * jife of the prisoner i . State v.
sarin - 190 N_ ©. 829, 130 S.-H. G09, it Ve OF oe en. O08, 104 8. I. 681, None
appears in the instant case.
Appeal dismissed.

(195 N. C. 458)
STATE v. THOMAS. (No. 342.)

Supreme

was said: us
i itted to re-
bac sfendant will not be permi i
at ripe of its agent as being beyond the
scope of his authority, and at the Lg spaeg han e
cept the benefits arising from what he “A . ors
hile acting in its behalf. Starkweather v. na ot .
Gravely, 187 N. C. 526 [122 S. B. 207]. Tt iS aay antic LIFE INS. CO. v. WADE, Ins
x ule oe well: established to ato of arg Com'r, et al. (No. 270.)
‘ } 2leda e
i incipal, with full knowledge 0 1 ;
eee 2 tect kes and retains the benefits of Supreme Court of North Garotise:
aterial facts, ta p ;
ie 1 authorized act of his agent, he thereby 1928.
seanes such act, and with the benefits he must
Hpi ans tes accept the burdens ac igge ee
thich naturally result therefrom. ne -
SE ee ge post nee is confirmation after con- if possible, ee
tt 2C. J. 467. It is also a settled prin- A statute may be repealed by plieation
duct. f atification that the principal must rati- and without any express wards; but law joes
pares le of his.agent’s unauthorized act OT 14¢ fayor implied repeals, and the severa
we ten ; ie eniittot accept its benelits and will be reconciled. if posuibile.
oe Baie | irdens. Bank vy. Justice, 157 N. aoc id ae
repudiate its burdc nS, 5 ste:scghaiute singin tax
OME e mene “tion of foreign insurance companics ous
business In state held not py ak te a re
by revenue acts (C. S. § 6413;
1923, § 903; Revenue Act 1925, § 903). z
CG. 8. § 6413, providing that the same licens
fees, deposits, obligations, a

1 Key-Numbered Digests and Indexes

pudiate t

April 4,

5 t favor im-
. Statutes G=-159—Law does no
tea repeals, but statutes will be reconciled

For the error, as indicated, in failing to
give the instruction, substantially as request-
ed, a new trial must be awarded, and it is so
ordered.

New trial.

aS G -N > al
y €=For other cases see same topic and KEY-NUMBER in

jbitions °?
nd_prohibiti

'

N.C.)

whatever kind shall be imposed on insurance
companies of other states doing business in this
state as such other states impose on insurance
companies of this state, hel? not impliedly re-
pealed by Revenue Act 1923 (Pub. Laws 1923,
ce. 4) § 903, repealing all laws imposing taxes,
the subjects of which are thereby revised nor by
Revenue Act.1925 (Pub. Laws 1925, ¢. 101) §
903, repealing all laws in conflict therewith, in
view of Pub. Laws 1927, e. 32, amending C. 8S.
§ 6413, and constituting legislative recognition
that said section 6413 is still in force.

Appeal from Superior Court, Wake Coun-
ty; Cranmer, Judge.

Controversy without action between the
Atlantic Life Insurance Company, plaintiff,
and Stacey W. Wade, Insurance Commis-
sioner, and another, defendants. From an
adverse judgment, plaintiff appeals. Re-
versed.

This was a controversy without action to
determine the validity of taxes assessed by
the insurance commissioner against the plain-
tiff. The excess tax claimed by plaintiff is
$1,420.83 with interest, and this suit was
instituted to recover such excess. Judgment
was rendered against the plaintiff and in
favor of defendants, from which judgment
plaintiff appealed.

Albert L. Cox and A. L. Purrington, Jr.,
hoth of Raleigh, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank
Nash and Walter D. Siler, Asst. Attys. Gen.,
for appellees.

BROGDEN, J. The plaintiff Atlantic Fire
Insurance Company is a Virginia corporation
duly engaged in the life insurance business
in North Carolina. During the years 1925
tnd 126 plaintif! has paid under. protest
faxes in the sum of $1,420.85 in excess of
the amount charged and collected by the state
of Virginia upon North Carolina insurance
companies doing business in that state, of

-identical nature and character, and the

question at issue involves an interpretation of
“. S. § 6413. This statute in substance pro-
vides that the same “licenses, fees, deposits,
obligations and prohibitions, of whatever
Kind” shall be imposed upon insurance com-
Panies of other states doing business in this
stite as such other state shall impose upon
surance companies of this state doing
business in such other state. It appears
from the record that the amount claimed by
the plaintiff is correct if C. S. § 6413, was in
force at the time the taxes were Collected.
The defendants contend that G. S. § G42,
Was repealed by the revenue act of 1923,
“amebeing chapter $, Public Laws 1923, and
the revenue act of 1925. sume being chapter
IM, Public Laws 1925. Section 902, chapter
§, Publie Laws 1923, provides:

a

C=For other cases see same topic and KE Y-NUMBER in all Key-Numbered Digests and Indexes

ABEL v. DWORSKY 475
(142 S.E.)

“All laws imposing taxes, the subjects of
which are revised in this act, are hereby re-
pealed,” ete.

Section 903, chapter 101, Public Laws 1925,
provides:

“This act, after its ratification, shall consti-
tute authority for the imposition of taxes upon
the subjects herein revised, and all laws in con-
flict with it are hereby repealed,” ete.

[1,2] It is to be observed at the outset
that these revenue acts are general laws and
do not attempt to expressly repeal C. S. § 6413.
If these revenue acts repeal C. S. § 6413, such
repeal is by implication. “As a general rule
the law does not favor implied repeals. A
statute may be repealed by implication and
without any express words, but the leaning
of the courts is against the doctrine if it is
possible to reconcile the several acts.” Litch-
field v. Roper, 192 N. C. 202, 134 S. EB. G51:
State v. Johnson, 170 N. C. 685, 86 S. E. 788:
Blair v. Commissioners, 187 N. C. 488, 122
8. E. 298. GC. S. § 6413 is made up of section
71, chapter 54, Public Laws 1899, and, section
11, chapter 536, Public Laws 1903. The
section was brought forward in the Con-
solidated Statutes and was therefor con-
sidered by the Legislature as live and ex-
isting law upon the subject. Doubtless all
revenue acts since 1903 have contained repeal-
ing clauses similar to these contained in the
acts of 1923 and 1925, and yet GC. S. §-6413, has
been recognized by the Legislature as. still
in force. This legislative recognition has
been established beyond question by chapter
52, Public Laws of 1927, which in express
terms amends section 6413 in the manner
therein pointed out, and which amendment
now constitutes C. S. § 6413, a retaliatory
law pure and simple. As the taxes in’ eon-
troversy were collected prier to the amend-
ment of chapter 32. Publie Laws 1927, we
are of the opinion, and so hold, that section
G45 applied to the taxes in controversy and
the plaintiff is entitled to recover,

Reversed,

ABEL et al. v. DWORSKY et ux. (No. 269.)

Supreme Court of North Carolina. April 4,
1928,

1. Trial €==165—On motion for nonsuit, evi-
dence supporting case, whether offered by
plaintiff or defendant, will be considered most
favorably to plaintiff (C. S. § 567).

On motion for nonsuit, under C. S. § 567, ev-
idence which makes for plaintiffs claim and
which tends to support cause of netion, wheth-
er offered by plaintiff! or elicited from defend-
ant’s witnesses, will be taken and considered in
its most favorable light for plaintiff! who is en-
titled to benefit of every reasonable intendment
on evidence and every reasonable inference
therefrom

v

varie udive ca

*9z6T S1z Trudy (°00 upsetod) aSON ‘*oeTe “HORTG Seq souertetT) *SYNOHL

“hekn

se

cig

PERS,

as


1895 -- Patrolman M.M. Vickers shot and killed on court-
ees house square by Arthur Tuttle, BM, 41, while as-
Sisting Officer H.H. Dean in Tuttle's arrest.

Tuttle was found guilty of 2nd degree murder and

sentenced to 25 years in prison.
LL Tnce enc

August ll, 1927 -- Patrolman T.G. Anderson injured when his
£. oF motorcycle collided with a truck at llth and
Nae. Highland Avenue while enroute to investigate
a traffic accident. Anderson died August 15th.

Decemver (2, 29@%-- Sgt. L.G. Teague shot during a raid in a
mea residence at 1333 Oak Street. Teague and aie
other detectives were attempting to arrest
Clarence O. Thomas, BM, for the recent mur-
r of a. R.J. Reynolds plant night watchman.
Teague died December 26, 1927.

a 29, 1938 -- Patrolman W.G. Willard shot by Fred Burl, BM,
ee 4{, while attempting arrest on Foster Street.
Williard s Burl thr im and him.
Williard, with a .45 slug in his stomach and
kidney died November 1, 1938.

Qh Kvecenber 8, 1940 -- Patrolman J.G. Sampson killed in motorcycle
accident.

August 1, 1941 -- Patrolman G.G. Royal and Patrolman Blackburn an-
a swered call of subject creating a disturbance in
front of the Lincoln Theater at 3rd and Church
Streets at 10:20 P.M. Officers attempted to ar-
rest Nathaniel Shad, BM, 27, of 909 1/2 Ridge
Avenue. Shad struggled with Royal, took Royal's
service revolver and fired 5 shots. The last
hit Royal im the head, killing him instantly.
Blackburn received cut on his neck while subduing Shad.

November 1, 1952 -- Patrolman J.F. Wimbish killed in an automobiie

LoD accident on Old Lexington Road while chasing
"Wate a vehicle. Officer R.D. Peddycord injured in
: same accident.

September 9, 1961 --Patrolman Al C. Kinard killed in motorcycle acci-
dent. Kindard was first black officer killed in
LoD Ac < line of duty.

December 30, 1982 -- Patrolman D.G. Allred injured when struck
by vehicle while investigating traffic accident.
LOU ROG aia January 3, 1983.


=— ® ; innit ‘ pres :
THOMAS, William, white, hanged at Halifax, North Carolina, | 1762.

is
a >

| .) a
EX Z. 3
ca =) : aioe
wa Ss, 2 g
aS : 7

® ae Paha

e, > Ai = oy
: — $ :
m4 2 8 ¢
ad Pad E
O <
fe faa :
YN fx
an


e iF
Band helmet-had to be placed: on his need Po
‘oung’ neces “died in te state's) heads: and was told it had to. ey Sia me th

ay. tWo'for the mir bade goodbye to Father:

gas chamber toda ; AS prot
: er of a Mecklenburg taxicab driv eral, Chaplain Watts and then: #3id, VictoH vA

er andthe third from*the criminalj “Goodbye, everybody. et ae
Sivaker assault ofia 13-year-ald ~ ‘Negro. 2 Wade told the chaplain this morn:
~The three. were Bessie Mae-Wil-|ing, “I feek ike I'm Perfecily.. all
Séoghtziliams. 19, Ralph Thompson, 18 of [tight and ready to go. There us fio’
£ }Charlotte, and -Melvin Wade; 24, ; ee
of Laurinburg. :
Bessie Mae ‘and Thompson | ‘al
mitted “participation in the mour-)
ry der of ‘Mack -Minyard, Charlotte
t-officers|taxi driver,-in what’ the arresting
br _Preston officers described as the most bru-
o” eport- tal’ slaying they had éver investi-
d.tobbed|Sated. “Wade, however, denied he!
‘@utomo-| criminally assaulted the Negro, — ihe
st in-the} Five ministers” witnessed the}
allegedly| tripple execution, inchiding Chap-;
in thejlain C. F. Kelly of the South Caro-
‘jlina State penetentiary, at: Colum:
bia). Twenty-eight witnesses were
present for the girl's exectition, 25,
for the execution of Thompson, and)
12 for Wade. — |

ats Railitt
gy Pageland,:

a. “that! Bessie “Mae. second woman. to be

executed in. North Carolina in the
last two “years, went: to her. death:

" ¢| weeping. . Clad ina blue “striped, |
ff} short-legged= pajama ‘suits she en-)
tered the chamber ‘accompanied by!|

—dfficials, © ‘Chaplain 2Li2A, |
atts, arid‘ two matrons. Mrs. Louise.

M Poindexter and Mrs°-dewe) Burch}

‘both Of Raleigh, awho “stood “in 1a

reorner, holding’ each ‘others’ hands:}

the? ie oe the straps ye adjusted on
thi

¢ ae ie
re the. Be eculon- Bessie Mae,
lain Watts ‘that she spe:
‘part of last wer Feading
: Bible and pray: ng. said, *]
a e

i ig’Him (Minyard e re
eee etal ~rtwo"Ralf’ dollars a% the <cab) seat}
ae serving’ }God has answered my prayers. I'm

a chatge of: j ge
from Thompson went tov his. death
July @almly.° He told the chaplain, “I'm }

AY e. Lord has Called
wme> ] feel like ke Lord hag forgiv-|
ifa-me, The devil tempted mea
UI paid. attention-to hi There is
mothing moré “that I want to -say-
qabout the crime.” Previously, he

@ iadmitted that he “had knifed © the
lear driver when they Bot into oy
fight about the far
© Wade, who: was: piven the: last:
trites ‘of the Cathole "faith; was the’

: Only one of the trio to talk after en
al Kens tering the chamber. Wade asked if

opto sAye anything. miore taxi-dr
chime and sfial!*

: Aan ie Mae Allison,
iNedro also Fentericed to idea

arotinas

Sate ag ein it a ae ee Sele cate iaeanchietn a nnemelliintat nt geben hee :

Avftouirth wember ial the: partyibury
. Cleve Johns cp tated aguilty to clude:
ny turned Sever

te ritenced” Tes.

pdedegice; We

‘2 oe “but awias The

Kad Ker “ey.te need coms)
sonmentyby Gove
The r

tas taken !

of the age at, 4f

‘ iteble records re

i I keel eee to Site imp.
n= Wade" Was “con:
Au-

95.5

ce ls

v0.0 i mee


4)

: M COAL Acme Shag Aen ARMA We
Dar Read Cour sy Poticn Chiaes Nennry

wvers & pewtrol deyudes, RAW of-

f

che “e S oe COW x
: Sere,

~~

Usa ds” s Nan any Waa A Sa C QoaWwe 3 ¢
+. ‘ :
“hro Lene KD bs Q

\

ease were nent Joa che Ae Mecklon


a,

<Teprieves to,

0, an

pres
aie: waive
lectediin:
department.
id.) “have enab}
vide: for. th

¥ *

aher Ini

TWith Music


Mo hey ne.

THOMAS, William, hanged, Fremkite-Coumy, N. C., cir 1762.

",,eHistory furnished few mre tragical events than the following which took place in
this Gounty - about the year 1755, there was a man of thename of William Thomas who had
been some time settled on Flat rock Creek = that happ@ned to be an unfavourable Crop
year and there was little prospect of Most the New settlers main crops = he had a wife
and seven Children the eldest about tkn years old ~ he had no meat & figured to himelf
that his family must starve - this idea brooded in his mind till he formed the deradfull
resolution of putting them to death - one Evening he sent his tw eldest who were sons

a considerable distance from the house to burn brush - having set them to work he re-
turned to the house and cut the throats of his wife who was far advanced in pregnancy &
five of his Ghildren - he went back to the new ground where he intended to have thrown
his sons in the brush fire -but glutted with blood and thinkirg they might be of service
to him he brought them home and spread the alarm that the Indians had committed the mur-
der = the report wasgenerally believed and no further inquiry was made - towards the
close of this bloody scene he made a cut at the throat of a little girl about six or se-
ven years old = she retreated into a small porch belonging to the house = having finished
the business within he soon followed her = on his advancing she exclaimed 'pray Daddy
don't kill me = help me to stop this bloodt = the inhuman Monster scattered her brains
with a homminy Pestle - he staid some time in the neighbourhood but shortly after went
to a distant Country - the lest words of his Infant Daughter sounded hell in his ears =
no change of place or situation could efface them = the appeal of the little innocent
continually haunted him and stung him more than the mrder of the rest - after an absence
of two years he returned to the same spot - was taken up on suspicion - confessed his
Crimes, was tried and executed at Halifax - his wife & five Children were buried in the
same Coffin andthe grave is till be to been adjoining the Glebe the seat of Alexf, Fal-
coner Esor - this relation we have from a living Witness who fiewed the dead bodies the
following morning = eee" (Footnote: The Halifax Superior Court records of this date are
not available, However, on April 26, 1762, the Committee of Public Claims, meeting at
Wilmington, allowed the claim of Benjamin Person, deputy Sheriff of Granville for h
pounds = 19s=#8d for 'conveying William Thomas, a mrderer from the county jail of Gran-
ville to the Superior Court at Halifax,' It also allowed the claim of Thomas Lowe,
jailer of Granville, 5 pounds = 18 s 'for one hundred and eighteen days' imprisonment of
William Thomas,"

"Twelve North Carolina Counties in 1810-1811," by A. R. Newsome; NORTH CAROLINA HISTORI-
CAL REVIEW, Vol. VI, No. 2, April, 1929, pp 172-173.


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24 N.

4, On 25 January, 1944, the Commission
dismissed the motion of the Atlantic Grey-
hound Corporation and overruled the de-
murrer and exceptions of the Carolina
Coach Company.

In the formal opinion accompanying the

a C. 32 SOULTIL EASTERN REPORTER, 2d SERIES

Bailey, Holding, Lassiter & Wyatt and

Fhringhaus & Ehringhaus, all of Raleigh,
for Atlantic Greyhound Corporation.

Wm. B. Umstead, of Durham, for Caro-

lina Coach Co.

Tillett & Campbell, of Charlotte, for

rulings of the Commission, it 1s stated that Carolina Scenic Coach Lines and Carolina

General Order No. 79 is an administrative
rule or regulation made pursuant to author-
ity contained in sections 7 and 11 of the
Bus Act, Chap. 136, P.L. 1927.

And further:

“Tf notice, other than the order itself, is
a prerequisite to its validity, the protesting
carriers cannot be inadvertent to the fact
that said order arises out of a formal com-
plaint in Docket No. 3011, a copy of which
was mailed to both Carolina Coach Com-
pany and the Atlantic Greyhound Corpora-
tion, Both carriers appeared at the hear-
ing thereon on November 18, 1943, were
fully advised as to the practice of refusing
to give the traveling public impartial in-
formation at the Raleigh union bus station
to which said complaint related, and were
given full opportunity to be heard, as the
record therein will show.

“The contention that the order is an un-
lawful interference with interstate com-
merce is not supported by the decisions of
cither State or Federal courts. * * :
[ North Carolina] Corporation Commission
vy. [Southern] R. [Co.], 151 N.C. 447, [at]
page 453 [66 S.E. 427].

“Neither is the contention that the order
impairs the obligation of contracts sup-
ported by decisions of State or Federal
courts. To the extent that carriers may
have attempted to contract against the pub-
lic interest. their contracts cpnnot be en-
forced. See [Southern Public] Utilities
Co. [v. City of Charlotte], 179 N.C. 151
(101 S.E. 619}.

5. Thereafter, the Greyhound and_ the
Carolina filed notices of appeal, exceptions
and assignments of error. | These were
certified to Superior Court of! Wake County
on 10 February, 19-44.

6. On 29 February, 1944, the Attorney
General, representing the Commission, filed
motion in the Superior Court to dismiss the
appeal. This motion was allowed, from
which ruling the Greyhound and the Caro-

lina appeal, assigning error.

llarry McMullan, Atty. Gen., and George
B. Patton and Ilughes J. Rhodes, Asst.
Attys. Gen., for Utilities Commission.

case.
will suffice for the decision here.

Stages, amici curiae,

STACY, Chief Justice.

This case, which involves General Order

No. 79 of the Utilit*es Commission, and the
ase of North Carolina Utilities Commis-
sion v. Atlantic Greyhound Corporation,
224 N.C. 293, 29 S.E.2d 909, which involved
an amendment to General Rule 22 of the
Utilities Commission, were both heard at
the February Term, 1944, Wake Superior
Court. They are companion cases, were so
treated before the Commission and in the
court below, and are controlled by the same
considerations. The differences between
them are inconsequential rather than basic.
It would serve no useful purpose to travel
again the ground covered in the companion

Reference to the opinion in that case

Affirmed.

BARNIII[LL and SEAWELL, JJ., dis-

sent.

204 N.C, 661
STATE v. THOMPSON et al.
No. 505. |

Supreme Court of North Carolina,
Nov. 22, 1944.

{. Criminal law > 1137(5)

Defendants having declined _ trial,
judsze’s offer to determine voluntariness of
their confessions in absence of jury could
not rely on admission of such confessions
for reversal of conviction of first-degree
murder, unless their involuntariness ap-
peared from state’s evidence.

2. Criminal law C=519(3)

Statements, made by accused while in
the custody of officers or in jail, are com-
petent, if made voluntarily and without
any inducement or fear.

STATE y. THOMPSON N.C. a5

32 S.E.2d 24

3. Criminal law ©=519(3)

A confession otherwise voluntary is
not made inadmissible because of the num-
ber of officers present at the time it was
made.

4. Criminal law €=519(8)

Where defendants at time of arrest
were informed of caarge against them, as
required by statute, and none of them re-
quested permission to communicate with
relatives or friends or obtain counsel, ¢x-
ceptions to admission in evidence of con-
fessions, directed to failure of officers to
inform defendants of charge against them
and of their right to have ‘counsel, could
not be sustained. G.S. § 15-47.

5. Criminal law C=518(3)

In warning a defendant of his rights,
no set formula or exact language need be
used, but a defendant who has been thus
warned may properly be informed that he
need not make any statement, but that
whatever statement he does make may be
used against him,

6. Criminal law ©=518(3)

Statements made by police officers to
defendants that they need not make any
statement but that any statement made
could be used for or against them, and that
if they wanted to go ahead and tell the
truth it would be appreciated, did not af-
fect the voluntariness of confessions there-
upon made by defendants so as to render
them incompetent in murder prosecution.

7. Criminal law C1178

Exceptions not set out in appellants’
brief are abandoned. Rules of Practice in
Supreme Court, rule 28.

8. Criminal law @=1129(2)

Appeal from death sentence was con-
sidered on its merits, though assignments
of error appearing on the record were not
brought forward and grouped as required
hy rules. Rules of Practice in Supreme
Court, rule 19(3).

———_——_——-

Appeal from Superior Court, Mecklen-
burg County; Wm. IL. Bobbitt, Judge.

Ralph Thompson, Cleve Bryant Johnson,
Ressic Mae Williams, and Annie Mae Al-
lison were charged with murder. — Cleve
Bryant Johnson pleaded guilty to murder
in the second degree, and the other de-
fendants were found guilty of murder in

32 S.B.2d—2%

the first degree and sentenced to death, and
they appeal.
No error.

Criminal prosecution tried upon indict-
ment charging the defendants with the
murder of one Mack Minyard.

After the defendants were arraigned and
entered a plea of not guilty, the de fend-
ant, Cleve Bryant Johnson, through his
counsel, withdrew his plea of not guilty
and tendered a plea of guilty of murder
in the second degree, which plea was ac-
cepted by the State.

There is evidence tending to show that
about 6:00 o’clock p. m., on 27 April, 1944,
the appealing defendants, together with
Cleve Bryant Johnson, went to a cafe and
then to the poolroom on the corner of
Second and Caldwell Streets in the City
of Charlotte, where they spent about an
hour and a half. During this time the
necessity for obtaining some moncy was
discussed. It was decided if they wanted
to have a good time they must have some
money, and, according to the testimony of
Cleve Bryant Johnson, who testified for the
State, Ralph Thompson said “Let's get
some money, if we can't get it one way
we can get it another, we could try to
catch a taxi.” He said “We would get
some money in North Charlotte from the
taxi driver2” Tle didn’t say exactly how,
but said, “We might rob him.” Bessie Mac
Williams and Annie Mae Allison both said,
“All right.” Thereupon they went to the
corner of Fourth and Brevard Streets to
catch a taxi. The use of one taxi was
declined because it had two men in it,
About 9:00 o'clock p. m., they got in a
taxi driven by Mack Minyard and direct-
ed him to go to North Charlotte. The taxi
driver stopped at one place but was di-
rected to go to another, where the occu-
pants got out. According to the dying
declaration of Minyard, he was attacked
in the car and seriously cut, thereafter he
got out of the car but was held by one
of the men and the women kept cutting
him. He was robbed and the keys to his
car, together with his billfold containing
his social security card, chauffeur’s license,
several other cards and a photograph, were
thrown away. Most of these articles were
found later by the officers, after the de-
fendant Thompson pointed out to them
where he threw them. Cleve Bryant John-
son ran when the fight started, but joined
the other defendants after they had left

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fr

%G N.C. 32 SOUTIL BHASTERN REPORTER, 2d SERLES
Minyard in the road in a serious condi- the defendants by the officers tended to
: ied on the following night offer inducement to the defendants to make

tion. Minyard d Tuce
the confessions,

as a result of his injuries.

The defendants were arrested on Satur- (1] The defendants objected to the ad-
afternoon, 29 April, 1044, At the mission of the confessions, but declined the
time of their arrest they were informed offer of the trial judge to have their vol-
of the charge against: them and immedi- untariness determined in the absence OF the
jury. The objection to the admission of
these confessions comes too late unless

day

ately thereafter questioned by the arrest-
ing officers. Each one was informed that :
he or she need not make any statement, their *
but that any statement made could be used State’s evidence. State v. Biggs, 224 N.
for or against. them, and no threats or C. 23, 29 S:F.2d. 121; State ¥. Richardson,
. Tach 216 N.C. 301, 4 S.F.2d 852; State v. AF
the ston, 215 N.C. 713, 3 S.F.2d 1.

involuntariness appears from the

promises were made by the officers.
of the defendants admitted being in
taxi driven by Minyard and gave details [2,3] Statements made by a defendant
as to what happened. Thereafter the de- while in the custody of officers or in jail
fendants were questioned at the Rural Po- are competent, if mace voluntarily and
lice Station in Charlotte, in the presence \yithout any inducement or fear. Likewise,
of each other before six or eight police of- 4 confession, otherwise voluntary, is not
ficers. ‘The defendants were again warned made inadmissible because of the number
of their rights. No threats oF promises of officers present at the time it was made.
were made by the officers. The defend- ciate vy. Waggstall, 219 N.C. 15, 12 SE.
ants made no request to communicate with 94 657; State v. Richardson, supra, State
are ls or to obtain counsel to represent y, Murray, 216 N.C. 681, 6 SE2d_ 515)
them. No statement was made to the de- State v. Exum, 213 N.C. 16, 195 SE. 7;
fendants by the officers relative to the eM-— Giate vy. Caldwell, 212 N.C. 484, 485, 193
ployment of counsel or as to their right S12, 716; State v. Stefanoff, 206 NC: 43,
to have counsel if they so desired. Each 474 5.18, 411; State v. Gray, 192 N.C. 594,
defendant, in the presence of the other 135 S16, 535; State v. Rodman, 188 N.
defendants, repeated substantially the state- C720, 125 S.EE. 486.
ment made to the arresting officers.
: “3 ee = [4] According to the evidence, the de-
Verdict: Guilty of murder in the le fendants, at the time of their arrest, were
degree, as to each defendant. were informed of the charge against them, as
Death by asphyxiation as to each defend- cominel tcGS. § 15-47, fethethy. X05:
aa N ASAR(a). It also appears affirmatively
The defendants appeal, assigning errors. and uncontradicted that none of the de-
fendants made a request to be allowed
to communicate with relatives or friends
or to obtain counsel. IIence, the excep-
tions directed to the failure of the of-
Uhiman §. Alexander, J. M. Scarbor- feers to inform the defendants of the
ough, and Henry E. Fisher, all of Char- charge against them and to further in-
lotte, for defendants. form them that they had a right to have
counsel, cannot be sustained. State v.

Varry McMullan, Atty. Gen., and
George B. Patton and Hughes J. Rhodes,
Asst. Attys. Gen., for the State.

DENNY, Justice. Exum, supra.

Exceptions one to eleven, inclusive, are Finally, it is contended by the defend-
directed to the admission in evidence of ants that the statements made to them
the confessions made by the defendants. by some of the officers constituted an
The defendants insist in their brief that inducement to make the confessions, and,
the confessions were involuntary and in- therefore, the confessions cannot be held
competent as evidence, for the following to be voluntary and admissible as evi-
reasons: (1) That the defendants were in dence against them. The statements re-
custody and that a large number of of- lied upon to sustain the defendants con-
ficers were present when the confessions tention are as follows: “You need not
were made; (2) that the defendants were make any statement, but any statement
not informed as to the charge against them made could be used for or against you,
and that they had a right to have coun- and as to the defendant Annic Mae Al-
sel; and (3) that the statements made to lison, one of the police officers said to

GODFREY y, TIDEWATER POWER co. N.C. 27
$2 S.E.2d 27

her, “If you want to go ahead and tell
me the truth, I will appreciate it.”

[5-7] Ordinarily, where a defendant is
warned as to his rights, it is proper to
inform him that he need not make any
statement, but that whatever statement
he does make may be used against him.
Ifowever, there is no set formula or ex-
act language that must be used in warn
ing a defendant of his rights, and we do
not think the statements complained ot
affected in any way the voluntariness of
the confessions made by the defendants.
State v. Exum, supra; State v. Caldwell,
supra. Morcover, the confessions made by
the defendants in the presence of each
other are in evidence without objection,
since the exceptions thereto, as well as
all remaining exceptions, are not set out
in defendants’ bricf. Therefore, such ex-
ceptions are considered abandoned. Rule
28, Rules of Practice in the Supreme
Court, 221 N.C. 563.

8] The assignments of error appear-
ing on the record are not brought for-
ward and grouped in accordance with the
requirements of Rule 19(3), Rules of
Practice in the Supreme Court, 221 N.C.
554, Since, however, the defendants have
been sentenced to death, we have con-
sidered the appeal on its merits.

In the trial below, his Honor and the
attorneys appointed by the Court to rep-
resent the defendants were extremely
careful to safeguard the rights of the de-
fendanis, and in the trial we find, no cr-
ror.

© & KEY NUMBER SYSTEM

aums

224 N.C. 657
GODFREY v. TIDEWATER POWER
co. ct al.

No. 523.

Supreme Court of North Carolina,
Noy. 22, 1944.

1. Statutes €=225!/r

If statute relating to venue in par-
ticular cases is in conflict with statute
intended to cover venue of all cases for
which provision is not otherwise made,
the former will be taken as an exception
to the general provision. G.S. §§ 1-77,
1-82.

2. Venue G11, 46
Since a municipality may act only
through its officers and agents, an action
against a municipality is an action against
a “public officer” within statute provid-
ing that actions against a public officer
must be tried in county where cause arose,
and, if an action against a municipality
be instituted in any other county, munici-
pality may, upon motion, have action re-
moved. G.S. § 1-77(2).
See Words and Phrases, Permanent
Evition, for all other definitions of
“Public Officer”.

3. Venue C41, 46

A city located in Craven county where
plaintiff's alleged cause of action arose
was entitled as matter of right to have
the action removed from Mecklenburg
county, where plaintiff resided, to Craven
county for trial notwithstanding plaintiff
sought no relief against city, where city
was brought into case as a party defend-
ant on motion and cross-action of original
defendant for contribution from city as
a joint tort-feasor, if original defendant
should be held liable to plaintiff. G.S. §§
1-77, 1-82.

—_~-—_——

Appeal from Superior Court, Mccklen-
burg County; Wm. H. Bobbitt, Judge.

Action by Mrs. Jessie M. Godfrey, ad-
ministratrix of Frank Wilson Godfrey, de-
ceased, against the Tidewater Power Com-
pany and others for wrongful death, where-
in named defendant made the City of New
Bern a party defendant and filed a cross-
action against the city for contribution
as a joint tort-feasor if the power com-
pany should be held liable. From a judg-
ment denying the city’s motion for removal
of the action to Craven County, the City
of New Bern appeals.

Reversed.

Civil action for recovery of damages
for alleged wrongful death, G.S. § 28-173,
formerly C.S. § 160, to which action the
city of New Bern, a municipal corpora-
tion, was made a party defendant upon
motion of defendant, Power Company, un-
der G.S. § 1-240, formerly C.S. § 618, as
amended by Public Laws 1929, Chapter
68, and on its alleged cross-action for
contribution by the said city of New Bern
as a joint tort-feasor in case it, the Power
Company, be held liable. See opinion for-
mer appeal 223 N.C. 637, 27 S.1.2d 736,


TINSER, Edward

» White, hanged New Bern, NC 9-27-1811.

The GAZET TE
SRERIDAY. j

EDENTON, Mara 1810.

On the 23d ultimn, the Senate rejected the

! claim ot Afra. Puizabeth Hamilron !—And |

the House of Ret tativés spent the whole
ot that day in d rcunsing the subjectof a loon.

4

Hon, Elbridme Gerry. is elected Gaverrioe’

+ of Masgachuse:ts, in oppesition to the Hon,
Neagle wl by a majority of upwards
af 2000 votes °

HORRID MURDER...’
On Wednesday last, (April 17] the body

of a boy who appeared to be about 17 years
of age,’ was found floating In ‘Trent River,
one mile anda half from Newbe rn, el nalis 2
large ainnes Ued to his body, weighing u
f wars of 60 puunds, and was also shet int
bback. ury of inquest was held over the
ebady, end found a. wera of wilful murder.
Capt. Edward ‘Tinker and Mr. Peter Durand’
fwere immediately taken Up on suspicion as
being concemmed.in said murder, and are now
Se raifined in clase prison, and it i supped

awit} atand their trial at the ensuing court, |

‘which commences onthe 272d. *¥.
Newhern Fed. Ref.’

(We learn that Durand after being com
fitted to privon, acknowledged. the fact
having assivted ‘Tinker in the a id mare
der. The prisoners were not tried, on the
round that the public prejudice against them
iwas en great, that they couk! not have a fair
tra


TINKER, Edward, white, hanged at Cateret, N. Ce, September , 1811,

"A gentleman who was in Newbern (NC) during the setting of the Superior Court last week,
has informed us of a murder which was lately perpetrated there supposed by Captain
Rdward Tinker and Mr, Peter Durand, on a lad about 17 years old, The following is a
history of the case as received from our informatant, Several weeks ago capt, Tinker, with
Mr, Durand {his brother-in-law) and the lad on baord, carried a cargo of sugar and
coffee to Baltimore, which he sold for money] He then ensured his vessel with a
valuable cargo to Newbern and sailed in Ballast; near the Hatteras banks he landed the
money and sunk the vessel by bortthg holes in her bottom = then came up to Newbern and
with Durandks swore to a protest that the vessel was lost in consecuence of her age

and bad conditions, and stated that the money went to the bottom, and two men were
drowned in diving for it. The lad, though evidently tutored, prevaricated aind in
subsequent conversations said no men were drowned and that he himself assisted to lan d the
money. On Saturday night, April 8, 1810, a little after midnight, Tinker, Durnad,
and the lad (who lodged at EXAXKAEXHYXKEEA Tinker's), were hailed by the watch near the
wharf, Tinker had a gun and answered they were going to shoot ducks, In an hour or
two after, they returned without the boy and were again hailed by the watch, who in-
quired for the boy; Tinker said he had gone on board a vessel, On the 18th ult, the
body of the boy was found floating on the rigke with sixty weight of stones fastened
to him by ropes, his feet tied, and from appearances had been shot in the back, Tin-
ker and Durand were taken up; these with many other corroborating circumstances
appearing in proof, they were committed to jail, A few days after, Durand, under a
hppe of pardon, made it is said, a full confession of the murder,
"On Thursday last Tinker was arraigned for trial at Craven Superiour Court, but it
was found impossible to obtain such a jury as the law deems impartial, More than
900 talesmen, on being questioned, s aid they ‘had formed and expressed an upinion
unfavourable to the prisoner;! between 20 and 30 were challenged by the prisoner, and&xx#&#
##K after every freeholder who could be found, only 7 jurors were sworn, The trial
was therefore postponed to the next term of court.
"There were some extraordinary circumstances which led to the discovery of this mur-
der, It was not customary for the watch to remain out after 12 o'clock; that
night was accidentally an exception; and their meeting Tinker and Durand both when
going and returning is remarkable. That the body of the boy should float with 50
weight of stones fastened to it has also beendeemed an extraordinary circumstance.
"Tinker's connexions are wealthy and respectable, He is himself rich but his
character has always been a slender one, - RALEIGH STAR." THE COURIER, CHARLESTON,
SOUTH CAROLINA, May 9, 1810 (3:2.)

TOLBERN, Albert, black, hanged at Oxford, N. Ce, June 18, 1887,

"May 16, 1887-There is much excitement in Oxford, N. C., pending the trial of a negro named
Tabor (sic?) for assaulting a white woman, wifeof a prominent physician, Citizens go about
armed; ammunition has been distributed to the local miLitary company, and there is every
indication that bloodsbed is expected, The particulars of these unusal preparations on the
p rt of the white population is because the prisoner's friends have threatened to introduce
as Tabor's defense that he was asked to go to the house in the absence of the woman's hus=
band. The comlainant is of such high standing and so much respected in the community that

the citizens say they will drag the prisoner from the court-room and hang him to the nearest —

tree if such testimony is offered,

"The trial comes off this week. Circumstantial evidence is alone sufficient to disprove the
negroe's counter charge, The assault took place sbout three weeks ago.

"Tabor entered the lady's residenceat night. It was not till he had approached her bed that
she discovered that it wasnot her husband, She tried to escape from the room, but Tabor

prevented her and she then sprang through a window and fled to a neighbor's housse, An
alarm was given and a few hours later thenegro was captured,

"The lady was ill at the time from recent maternity, and exposure to the night air and

the shock to her nerves completely prostrated her.

"Rumors of lLytching reached the negro settlement in Oxford, and without learning the truth
of the report and attributing the threat to citizens of the town, they planned to burn the

place,

"On a windy night in March the brother-in-law of the prisoner set fire to a large tobacco

warehouse in the business section of the city, More than $100,000 worth of property was
destroyed. A young man had already received an anonymous letter warning him that the town
would be burned if “abor was lynched, Had not this been sufficient, the action of the ne-

proes, their boisterous laughter during the fire and their refusal to assist in removing the
goods would have assured the whites that the fire was incendiary.

"Bloodshed was only averted by the negroes betreating before the drawn revolvers of the
whites,

"A detective was emloyed to find out the principal, The result was the arrest of a negro
(Noel), who applied the torch, and one other, The evidence against Noel was conclusive, and
he would have been at once swung to a chimney but for the hope of securing others through
his turning state's evidence, Since the arrest an outbreak has been even moreimminent, the

blacks expecting daily that their imprisoned friends would be lynched." NEWS, Galveston,
Yexas, May 17, 1887 (1-l).

TOLBERN, Albert

"June 18, 1887-Albert Tolbern (colored) was hanged at
Oxford, Ne G, today, Last March, Tolbern forced an en-
trance into the house of Dr. Patrick Booth of Granville
County, during the absence, of the doctor, and attempted:
to outrage Mrs. Booth, His attempt was not successful,
but he was arrested and tried for burglary and sentenced
to be hanged June 18th. The execution took place today
and was public. Threats had meen made by the negroes to
the effect that Tdbern should not be hanged and some dis-
turbance was feared. The Granville Greys were ordered
out by the Governor to suppress any possible uprising
among the negroes. The place of execution was two miles
fromthe jail. ThexGreys formed a hollow square around t
the cart which arried the prisoner and coffin to the gall
owse Over five thousand people were in precession. Tol-


TINKER, Edward ‘ 2h ond
"Edward Tinker, captain of a comercial vessel, scuttles
his ship off ,Roanoke Island, and then puts in 4 fake
jnsurance claims (one of the first such swindles attemp-
ted in the United States) for the ship and lost cargo.
When one member of the crew, a Seaman named Edwards,
refuses to support his false story, Tinker kills him.

He is quickly appreehended, tried and convicted, t eing
‘hanged at Cateret,, North Carolina jn Sept, 1811,"

Z ~ Att»

Sifans AND CON MEN by J. Robert Nash, Page 291

9
ite ose 147 thes lect


| Fo Ee /G Oe

a Vol. ee, ae 2 fe a, / Ae / os

ETRAVERS, ogni white, bs at Lvaee MLA brink °
101

Lee NY , Historica Nores

I earnestly wish that the Congress could return to Philadelphia
without hazarding the Ignominy of a second flight on the charge of
Caprice. This dirty boddy hole beggers aklo description. We are
obliged, except when the Weather paves the streets to go to Congress
on Horsback, the way so miry that Carriages almost stall on the
sides of them. When the Devil proffered our Saviour the Kingdom
of the World, he surely placed his thumb on this delectable spot &
reserved it to himself for his own peculiar chosen seat and inherit-
ance. As to the Inhabitants the Congress can boast no acqaintance
with them but what arises from their daily exorbitant claims upon

Our pocketa: .*... 8 Phe Congress meets tomorrow, it is Sunday.
Why, Heaven knows. I cannot conceive unless it is to give us im-
portance in the eyes of the very respectable Inhabitants of this place,
ete.

Wittram Hooprr.®

STORE ROBBED; STOREKEEPER MURDERED

Extract of a Letter from Cross Creek, on Cape Fear River, North
Carolina, January 10th.

On Friday Night, the 7th Inst., the Store of Mr. Patrick Travers
was robbed by some Villians, not yet discovered. Mitchell Carroll,
the Storekeeper, had been writing in the Store and was found most
inhumanely murdered. A Broad Axe was lying by him, very bloody,
and on the back Part of his Head there appeared a violent Contu-
sion. He was stabbed in five different Places in the N eck, and had
several Wounds in the Head. ‘The Robbers carried off all the Dry
Goods in the Store of any Value, Part of which were the Property
of Mr. Thomas White, and newly imported from Philadelphia, to a
considerable Amount. This Villainy was not discovered till Sunday
Morning, the Perpetrators having locked and carried away the Key
of Street Door. The Inhabitants of Campbeltown, and this Piace
have raised by Subscription 500 £. as a Reward for discovering the
Persons concerned in this blood affair.®

5 Scrap Book, N. Q, Historical Commission, pp. 207-08-09-10.
® Virginia Gazette, March 3, 1774.


eeu Mei OA

648 34 SOUTHEASTERN REPORTER. (N.C,

to show that he did it with premeditation.
If he did the killing, it must have been the
tragic ending of a murderous conception of
the prisoner's mind, entered upon at least
from the time they left the house of Emma
Leopard. Probably Thomas’ Case and Rhyne’s
Case, supra, are as favorable to the prisoner’s
contention as any others, and they seemed to
be very much relied on in the argument here
by Mr. Brenizer. But, to our minds, they
afford no support to his contention. Take
Rhyne’s Case. That occurred in the presence
of eyewitnesses, who testified to the facts.
From this testimony it appeared that there
was no quarrel or trouble between Rhyne and
the deceased, until the deceased committed an
assault on Rhyne by putting his hand on his
shoulder, and telling him to come around to
the light; and at that moment the fatal stroke
was made. To our minds the two cases do not
stand in the line of comparison, and the
Rhyne’s Case fails to support the prisoner’s
contention that there was no evidence of “de-
liberation and premeditation.” We would af-
firm the judgment of the court below but for
the verdict of the jury, which is, as stated
above, in these words: “The jury say for
their verdict, upon oath, that the said Will
Truesdale is guilty of the felony and murder
in manner and form as charged in the Dill
of indictment.” In this there is error, for
which we are bound to arrest the judgment.
This we do with reluctance, as the case on
appeal states that the prisoner was convicted
of murder. in the first degree; and we only
do so after requiring another certificate of the
record below, thinking that it might be that
the clerk, in making up the transcript on ap-
peal, had inadvertently committed an error in
this respect. But the new certificate shows
that he has not, as it is the same as the first.
Where there is a discrepancy between the
case on appeal and the transcript of record
proper, the statements in the transcript of the
record proper must be taken to be correct, and
the court must be governed by that. State
vy. Keeter, SO N. C. 472; Adrian v. Shaw, 8+
N. C. 832; Farmer y. Willard, 75 N. C. 401;
McCanless v. Flinchum, 98 N. C. 358, 4 S. E.
359; State v. Carlton, 107 N. C. 956, 12 S. EH.
44. And the court must judicially know from
the record, and not from the statement of the
case on appeal, what offense the prisoner
was convicted of. State v. Bailey, 73 N. C.
70; State v. Wise, 66 N. C. 120; State v.
Lawrence, 81 N. C. 522. These cases were
before the act of 1893 (chapter 85), dividing
murder into two degrees (first and second),
making the punishment on conviction.of mur-
der in the first degree death, and in the sec-
ond degree a penitentiary offense. At first
we were disposed to hold that under State v.
Lawrence, supra, the verdict was sufficient to
authorize a sentence under the second section
of the act of 1893,—murder in the second de-
gree. But upon a further investigation of the
matter we are satisfied this cannot be done.
The third section of the act provides that

‘nothing in this act shall be construed to re-
quire any alteration or modification of the ex-
isting form of indictment for murder, but the
jury before whom the offender is tried shall
determine in their verdict whether the crime
is murder in the first or second degree.” And
in State v. Lucas, 124 N. C. 827, 32 S. E. 962,
the jury, when asked by the clerk if they had
agreed, responded, “Guilty of murder.” The
court asked whether they found the prisoner
guilty of murfer in the first or second degree,
when the foreman responded, “In the first
degree.” The clerk then asked, “So say you
all?” and they responded in the affirmative.
This was objected to by the prisoner, and
formed one of his exceptions on the hearing
upon appeal, and the action of the court below
was approved by this court. Under the terms
of the statute and the authorities cited, there
must be a new trial (State v. Whitaker, 89
N. C. 472), though not specially excepted te
(Carter v. Rountree, 109 N. C. 29, 13 S. E.
716; Thornton v. Brady, 100 N. C. 38, 5S. E.
910). This will be certified to the superior
court of Mecklenburg county, that it may
there be certified to the criminal court of that
county for a new trial in that court. New
trial.

STATE v. JEFFERSON.
(Supreme Court of North Carolina. Dee. 22,
1899.)

MICIDE—MURDER—EVIDENCE — DYING DEC-
giants LARATIONS—VERDICT.

1. Statements of deceased, made shortly before
his death, that he had quarreled with the prison-
er in the morning, and that after sunset some-
body shot him, and that he saw a man running
out of the bushes, but could not recognize him,
as it was too dark to recognize him. and to have
prisoner arrested, are inadmissible as dying dec-
larations. 28 . :

2. Where a bill of indictment is one in eon
covering murder in either the first or second «e-
free, a verdict of guilty, under Laws 1893, ec. 8,
$ 3, must determine whether the crime is murder
in the first or second degree.

Appeal from superior court, Wilson county;
Hoke, Judge.

J. J. Jefferson was indicted and convicted
of murder. From an order of the superior
court granting the prisoner a new trial, the

state appeals. Affirmed.

The Attorney General, for the State. Jolin
E. Woodard, for appellee.

MONTGOMERY, J. The prisoner was con-
victed of murder at the October term, 18”
of the Eastern district criminal court held for
the county of Wilson, and sentence of Son
was passed upon him. The prisoner appea®
ed. At the November term of Wilson rd
perior court, the appeal was heard, and his
honor, Judge Hoke, presiding, held that there
was error in the trial in the criminal court ia
admitting certain portions of the evidence of:
fered as the “dying declarations” of the de-
ceased, and the prisoner was given a new

ae eer ee

CREE ERIN ARI Si TMPONR tS IE Stee ce

N.C.) STATE y. JEFFERSON. 649

trial. The solicitor for the state excepted,
and appealed to this court.

Calvin Barnes was shot and mortally
wounded on the public highway, near his
home, in Wilson county, about 7 o’clock on
the evening of the 29th of August, 1899. His
murderer was in ambush. The prisoner was
tried for this crime, and convicted and sen-
tenced, as above set forth. On the trial in
the criminal court James D. Barnes was in-
troduced to prove the dying declarations of
his deceased father. No exception was made
by the prisoner's counsel to the ruling of his
honor that the dying declarations of the de-
ceased should be admitted, but the prisoner
did except to the matters and things which
the witness was allowed to testify to, because,
as he alleged, those matters and things were
not dying declarations of the deceased; that
the matters testified to by the witness, were
not only hearsay evidence, but were also
merely opinions of the deceased as to the
identity of the prisoner with the person who
shot him. The testimony of the witness in
reference to the dying declarations was as
follows: ‘He [Dr. Herring] got the ball out,
and, after he got it out, he [the deceased] sent
for me, and told me to have John Jefferson
arrested. That they had had words about
tobacco hands and corn, and he had gone off
about noon after hands, and had not come
back after sunset, when heleft. When he
got half way down Hominy Hill, somebody
shot him. He looked back, and saw a man
running out of a clump of bushes at a hogpen,
but could not recognize him,—too dark to
recognize him.” We think that the ruling of
Judge Hoke that there was error in the ad-
mission of that testimony as a dying declara-
tion of the deceased, and that the prisoner
was entitled to a new trial on that account,
was correct. At most, the evidence was but
the opinion of the deceased that the prisoner
shot him, that opinion being founded on what
had occurred between the deceased and the
prisoner during the morning of the day on
which he was mortally wounded; for the de-
ceased did not see the person who shot him,
because of the darkness of the hour. The
opinion of the deceased as to the identity of
the person who shot him with the prisoner
was not the direct result of observation
through his senses, or any of them. It was an
opinion formed through the process of rea-
soning based upon antecedent transactions
and the conduct of the prisoner during the
morning of the day on which the deceased
was shot. Such evidence was not admissible
4s dying declarations. State v. Williams, 67
N.C. 12. Again, dying declarations must be
confined to‘the facts connected with the act
of the killing,—facts attending the act, and
forming a part of the res gestee. State yv.
Shelton, 47 N. C. 360. The general rule is
that testimony, before it is received in evi-
dence, shall be on the oath of the witness,
and subject to the right of cross-examination.
The nearness and certainty of death are just

as strong an incentive to the telling of the
truth as the solemnity of an oath, but you
cannot subject the deceased, and what he
said as a dying declaration, to the test of-cross-
examination. The exception to the general
rule of evidence, therefore, in regard to dying
declarations, rests upon the grounds of public
policy, and the necessity of the thing; and,
as the exception can only be sustained on
the grounds above mentioned, such evidence
is restricted by the law to the act of killing
and those facts and circumstances directly
attending the act and forming a part of the
res geste. All of this is clearly decided in
State v. Shelton, 47 N. C. 360. In that case
Chief Justice Pearson, delivering the opinion,
said: “If it [the exception to the general rule
of evidence in respect to dying declarations}
can be extended to a separate and distinct act
occurring half an hour before, it will extend
to any act done the day before, or a week,
month, or year. As soon as the limit fixed
by absolute necessity is passed, the principle
_upon which the exception is based being ex-
ceeded, there is no longer any limit whatever,
and dying declarations become admissible not
merely to prove the act of killing, but to make
any homicide murder by proof of some old
grudge. That the exception is restricted in
the manner above stated is clear from. the
reason of the thing, and is settled by au-
thority.” We have examined the decided
cases in our reports upon this question, and
we find not a single one in conflict with the
law laid down in State v. Shelton, supra. And
it is a matter of some surprise to’ us that evi-
dence so clearly incompetent as that which
we have recited should have been offered
in the case by the prosecuting officer, and that
it should have been received by the court as
competent. It is true that there was a great
deal of proof—competent proof—offered, and
received by the court, which tended to show
tIMat the prisoner fired the shot which killed
the deceased. ‘The jury would have been
warranted in convicting the prisoner under
that evidence, but we do not know that they
would have done so. A good deal of it con-
sisted of confessions made by the prisoner,
and that class of evidence is usually regarded
as not the strongest. But it is evident that
the purpose of the prosecuting officer was to
give the state the benefit of the opinion of the
deceased that the prisoner fired the gun. That
he succeeded in doing through the evidence
which was excepted to, and that was exactly
what he was not allowed to do by the law and
the decisions of this court. State v. Williams,
supra. Upon reading the record in this case,
it is probable that the prisoner’s life was in
danger at the hands of some lawless persons
at and about the time of the homicide. Such
a spirit is greatly to be deprecated and de-
plered, but sitting, as we are, as a court of
last vesort, in whose hands are confided all
the legal rights of the people of the state, we
cannot, if it should be expected of us by any

class of our citizenship, allow the life of any

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646 34 SOUTHEASTHRN REPORTER. (N.C.

session of this note and the collection of it
for the benefit of the plaintiffs, while there is
no demand for damages for injury to the land.
This case does not fall under the principle of
equity announced by the court in the case of
Ijames v. Gaither, 93 N. C. 358. The plain-
tiffs, in their complaint, seek no such relief,
and there is not a word in reference to the
principle in Ijames v. Gaither, supra, in the
brief of the appellants’ (plaintiffs’) counsel.
Every contention of the plaintiffs is purely le-
gal, and for the possession of the note, and
an insistence that upon the face of the com-
plaint there is a sufficient allegation for dam-
ages. If, in the former suit of the plaintiffs
against Rowe for the possession of the land,
in which the plaintiffs recovered judgment
for the possession of the land and for their
costs, the defendants Rowe and Jerry Fox,
the surety on Rowe’s bond for costs, had been
insolvent, and unable to respond to the pay-
ment of the costs, then, in equity, the note
which Rowe had put into the hands of Jerry
Fox to indemnify him against loss, if any he
should sustain by reason of his having signed
Rowe’s bond for the costs, could have been
reached by the plaintiffs for their benefit to
the extent of plaintiffs’ costs, under the prin-
ciple enunciated in Ijames v. Gaither, supra.
The note was put in the hands of Jerry Fox,
not to indemnify him against loss on account
of any alleged connection of Jerry Fox with
the alleged injury to the land, for he had no
connection with it, but simply to indemnify
him against loss by reason of his having sign-
ed defendant’s bond for costs and damages in
the land suit under section 237 of the Code.
Was his honor’s ruling, then, that the note
could not be recovered, correct? We are of
the opinion that it was. Rowe was in adverse
possession of the land from which the timber
had been cut and severed. He sold the timber
to Granville Fox, and took notes therefor,
with Jerry Fox as security, one of which notes
is the one in controversy. The plaintiffs could
not have recovered the timber after it was
severed from the land, for, if they could, then
it would follow that they could recover the
value of the same from any person to whom
it might have been sold; and such a rule
would make every purchaser from a person in
possession, and claiming the land as his own,
a guarantor of that person’s title. Such a rule
cannot be the law. In Brothers v. Hurdle, 32
N. C. 490, the defendant had been the phaintiff
in a suit for the possession of a tract of land,
and, when put in possession, found thereon
growing crops, and crops gathered and stored
in the cribs. He took possession of both. In
a suit in trover by the defendant in the action
in ejectment for the gathered crops, the jury
found, under the instruction of the court, that
the plaintiff should recover the value of the
severed crops. The instruction was sustained
by this court. In the opinion in that case the
court said: “If the defendant had a right to
take the specific articles, he would, for the

in trover against the plaintiff, or any one to
whom he might have sold them; the amount
of which would be, where one, who has been
evicted, regains possession, he may maintain
trover against every one who has bought a
bushel of corn or a load of wood from the
trespasser at any time while. he was in pos-
session. * * * There is no authority for
it in our Reports, the invariable practice hay-
ing been to bring trespass for mesne profits
and for damages if there has been any de-
struction to the freehold.’’ And the court fur-
ther said in the same opinion, after drawing
the distinction between the wrongful act of a
tenant in cutting and severing trees, or dis-
posing of crops, or one having a particular
estate, and one in possession of land claiming
the property as his own: “But where one who
is in the adverse possession gathers a crop
in the course of husbandry, or severs a tree
or otber thing from the land, the thing sev-
ered becomes a chattel, but it does not become
the property of the owner of the land, for his
title is d@evested. He is out of possession, and
has no right to the immediate possession of
the thing; nor can he bring any action till
he gains possession. ‘Then, by the jus post-
liminii, or fiction of relations, he is considered
as having been in possession for the purpose
of bringing trespass quare clausum fregit
with a continuendo from day to day, in which
he recovers the value of the mesne profits
and damages for the injury done to his free-
hold by the severance of any part of it, or for
any other injury consequent to the breach of
his close.” The same principle is applied in
the cases of Ray v. Gardner, 82 N. C. 454;
Feuleon v. Johnston, 102 N. C. 264, 9 S. E.
394; Howland vy. Forlaw, 108 N. C. 567, 13 S.
E. 173. If the timber, then, could not have
been recovered by the plaintiffs, nor a pur-
chaser of the same have been made to account
for its value, certainly the note for which the
timber was given cannot be recovered; the
principle is the same. There was no error.

(125 N.C. 698)
STATE v. TRUESDALE.

(Supreme Court of North Carolina. Dee. 19,
1899.)
—PREMEDITATION—EVIDENCE—VER-
— DICT APPEAL RECORD.

1. There is sufficient evidence that defendant
committed the murder with premeditation, it ap-
pearing that deceased, on the day before her
death, had defendant arrested for bastardy; that
on the trial of the bastardy proceedings the agree-
ment was that he should make certain payments
to her, and find her a place to stay; that on the
evening thereafter they went to a house, where
he procured lodgings for her for the night; that
he returned later, and asked her to go to walk,
which she did; that she was never seen alive
thereafter; that she was found dead the next
morning in a woods three-fourths of a mile away.
her skull ernshed by some heavy substance; that
defendant returned to :nother house that night,
making conflicting statements as to what had
become of her; that he had in his possession a

same reason, be entitled to recover their value

pocketbook which she had when they went away;
and that there were splotches on his shirt te

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Sr OR SR PNP NEI EIGN I ay Ri ale: LI 8 ETI BONN IE ENE I STEEN SETI ET LI OM TO GS: leatitng

N.C.) STATE y. TRUESDALE. 647

sembling blood, and which the doctor thought
were blood, though they had been washed.

2. Statement in the transcript of the record
proper must prevail over one in the case on ap-
peal, there being a discrepancy between them.

3. Under Act 1893, e. 85, dividing murder into
two degrees, punishing the first with death. and
the second with imprisonment, and providing
that. while no change in the form of indictment
is necessary, the jury “shall determine in their
verdict whether the crime is murder in the first
or second degree.” a verdict finding defendant
guilty of murder in manner and form as charged
in the indictment is not sufficient to sustain a
sentence,

4, The verdict in a murder case, though not
specially excepted to. being insufficient, under
Act 1598, ¢. 85, § 8, because not stating the de-
gree of murder, there must be a reversal.

Appeal from superior court, Mecklenburg
county; McNeill, Judge.

Will Truesdale was convicted of murder,
and appeals. Reversed.

Chase Brenizer, for appellant. Shepherd &
Busbee and the Attorney General, for the
State.

I'URCHES, J. This is an indictment for
murder, tried in the criminal court of Meck-
lenburg county, in which the jury returned
the following verdict: “The jury say for
their verdict, upon oath, that the said Will
Truesdale is guilty of the felony and murder
in manner and form as charged in the Dill of
indictment.” Upon this verdict the prisoner
was Sentenced to be hanged, from whieh judg-
ment he appealed to the superior court of said
county. The judge of the superior court af-
firmed the judgment of the criminal court,
and the prisoner appealed to this court.

There does not appear to have been an ex-
ception taken during the whole trial. But the
prisoner asked for the following instructions:
“(1) From the testimony in the case the jury
cannot convict the prisoner of murder in the
first degree. (2) At most the jury can only
convict of murder in the second degree. (3)
There is no evidence of deliberation or pre-
meditation in this case.” The court ‘refused
to give either of these instructions, and the
prisoner excepted. The refusal of the court
to give these prayers was made the basis of
the argument before us. It was contended in
this argument that there was not. sutlicient
evidence of deliberation and premeditation to
authorize the court to submit the issue of
murder in the first degree to the jury, and
Wittkowsky v. Wasson, 71 N. C. 451: Spruill
v. Insurance Co., 120 N. C. 141, 27 S 39;
State v. Gragg, 122 N. C. 1082, 30 8. 306;
State v. Rhyne, 124 N. C. S47, 33 S. E. 128;
State v. Norwood, 115 N. Cc. 789, 20 8. BE. 712;
State v. McCormac, 116 N. ¢, 1033, 21-8. E.
698; and State vy. Thomas, 118 N. @. 1118,
24 S. KE. 431,—were cited to sustain this con-
tention; but, in our opinion, none of these
cases sustain it. Without quoting the evi-
dence in this case, it discloses these facts:
That the deceased was pregnant at the time
of her death. That on the day before she
was killed she had the prisoner arrested upon

a charge of bastardy, as being the father of
the child. That at the trial of the bastardy
case the prisoner and the deceased came to
terms of compromise, when the prisoner agreed
to pay her $10 in cash, and to procure a
place for her to stay in Charlotte. ‘That on
the evening after the trial the prisoner and
the deceased went to the house of Emma
Leopard (a colored woman), where the pris-
oner procured lodgings for the deceased for
the night. That he left this place about dark,
telling the deceased’ that he would return,
and bring her supper. That he returned about
9 o'clock, and asked the deceased to take a
walk with him, The deceased said that she
had not had any supper, when the prisoner
remarked that he would get her supper up
Street; that she was a stranger there, and he
Wanted to show her the town. That they left
tozether, and this was the last time she was
seen alive, so far as the evidence discloses.
That on the next day she was found, some
three-fourths of a mile from the house of
Emma Leopard, in the woods, dead. ‘That
from a severe wound on the left side of the
head, crushing the skull, she died. That from
this, and from other wounds, and from signs
of a scullle, it was apparent that she had been
murdered. This wound on the head, the
doctor testified, had evidently been made by
some heavy substance with square corners.
That it rained hard that night, and the pris-
oner returned, and went to the house of Rosa
Marks (another colored woman), in Charlotte,
about 11 o'clock that night, in a wet condi-
tion, where he stayed until morning.’ That he
Was asked by several parties where the de-
ceased (Janie Brown) was, to which he made
different and contradictory statements. To
some of the parties he said that she was
afraid to stay in Charlotte, and had gone to
Asheville; to others he said he had sent her
to Asheville; and to others he said that a
big black man had taken her from him. He
said he kihew the man, but refused to tell who
he was, as he did not wish to get him into
trouble, When arrested the next day, the
prisoner was found to be in possession of a
pocketbook which Janie had that night when
she left Emma‘s house with the prisoner,
containing at that time four dollars in silver,
but empty when found in the priscner’s pos-
session. The prisoner made other contradiet-
ory statements about the matter. There were
splotches on his shirt that resembled blood,
and which the doctor thought were blood,
though they had been washed, and he would
not give a positive opinion as to whether they
were blood or not. Without stating more, we °
are of the opinion that this evidence was
suflicient to carry the case to the jury, and
they have said that the prisoner was the mur-
derer. This being so, and there being no ex-
ception to the evidence or charge of the court,
it must be held that the prisoner is the mur-
derer; and, taking it as a fact found that the
prisoner killed the deceased, it seems to us
that there is an abundance of evidence going

ve

“O06T-Q-2 *ON fe990TZeUD peSusU *HoeTQ *WBTITIM “a IvasTONL

TRUESDALE, William, black, hanged Charlotte, North Carolina, February 8, 1900.

"(Special Dispatch to The Journal.) Charlotte, Ne Coy Feb. 8, - Shortly before noon today, —
William Truesdale, colored, was hanged here for murder, The execution was private, the
gallows being located inside the county jail building. About 75 people were admitted to
witness the death scene, The crime for which Truesdale ascended the flight of stairs
leading to the instrument of death today was a terrible deed, He took his sweetheart for

a walk one night last August and when on the outskirts of the city, in a piece of woods

near the Victor mills, he killed her with a club, When the body was discovered next day

all around it were evidences of a terrible struggle, the woman's clothes being scattered
around for some distance, Truesdale was immediately arrested on suspicion, and blood was
discovered on his clothes. He was convicted at the following term of the criminal court

and condemnéd to death, but on an appeal, the supreme gourt granted a new trial on a
technicality. The second trial, however, also resulted in prompt conviction last month,

and today the law was executed," JOURNAL, Atlanta, Gas, 2-8-1900 (5/3-)


Amen

+ ie A Ns ies a oom

102 Tue Nortu Carouina Historica REviEw

MURDERER DISCOVERED

NEWBERN, July 15.

By an authentick Account from Cross Oreck, the Perpetrator of
a horrid Murder and Robbery committed there some Time ago 18
discovered. And proves to be Mr. Patrick Travers himself, the
owner of the Store that was robbed, who is now in Jail, is soon to
take his Trial for that atrocious Crime. The Goods were the Prop-
erty of several Persons, and were found buried near Mr. Traver’s
Sawmill; and the Linens, and other perishable Articles, were mostly
spoiled. When we consider Mr. Travers as a Gentleman who had
long lived at Cross Creek and in Character of a worthy Member of
Society, and a Man of Property, we shall be much at a Loss to account
for his Inducement to murder his Storekeeper, and rob the Store.
Surely something more than Avarice must have tempted him to

his God and his Conscience.”

violate the sacred of Tie of Friendship, and so daringly offend asin |

BOUNDARY LINE BETWEEN NORTH AND SOUTH
CAROLINA; PROCLAMATIONS OF GOVERNOR
MARTIN

CHARLESTOWN, September 19

The next Day the General Assembly of this Province
(which have done no Business these twelve months) met, according
to Prorogation, and this Day his Excellency opened the Session with
a Speech, in which he informed the Assembly that his Majesty had
sent over his Royal Instructions confirming the temporary Bound-
ary Line that had been run between this Providence and North
Carolina, and ordered it to be farther extended to the Indian Bound-
ary, in a Line nearly similar to that which we have been soliciting
for; ‘
September 26. His Excellency Governour Martin from
North Carolina, besides the usual Proclamations, for continuing
publick Officers, &c. and one for proroguing the Assembly to the 25th
of November, has published three others, which, if properly enforced,

7 Virginia Gazette, August 18, 1774.

ee eD:

i nc ae ee

2 ERE. cepts 3

&

oe

Oe ee a athe ct eb Re hs

_ness $10, On his return the prisoner seemed

- noticing the change in his clothing, and that

134 85 SOUTHEASTERN REPORTER (N.C.

when his body was found there was only;of the circumstances which he testified to
$3 in his hip pocket; that on Tuesday before | on the stand. The prisoner in his own behalf

the homicide the prisoner left his boarding |
house because he could not pay his board!
bill and was in the habit of borrowing small |
sums of money and pawning his effects; that !
on that Saturday afternoon he went to his!
boarding house and, being asked to pay his!
bill, said that he would pay on Monday
morning; that at 10:30 that night he went
to a barber shop and asked to be shaved on
credit; that at 3:30 that afternoon he bor-
rowed 75 cents to buy a pair of shoes; that
about 12:30 that night the prisoner asked
the witness Barton to exchange suits with
him, and Barton let him have his coat, and
about 2 o’clock that night he was awakened
by the prisoner, who took off his pants and
put on another pair, and at the prisoner’s
invitation the witness went with him to sev-
eral places “to have a big time’; that on
objection by Barton that he had no money
the prisoner then replied that he had plenty
of money and would pay all expenses, they
visited several places, and the prisoner spent
considerable money, besides giving the wit-

much excited and nervous, and during the
the night repeatedly insisted on the witness
leaving town with him. The witness and
the prisoner were arrested early the next
morning, and just before the arrest the pris-
oner said to the witness that if anything
got out, and the witness said anything about
it, hé (the prisoner) would shoot him.

it appears from the testimony of the of-
ficers that, when the witness Barton and the
prisoner were arrested, $10.55 was taken
from Barton and $407.50 from the prisoner ;
that the prisoner said when arrested that
he did not know how much money he had,
and the prisoner’s pants, which Barton testi-
fied he had taken off and put in a drawer on
his return, had fresh blood on them; the
shoes taken from the prisoner were the same
which he had bought with the 75 cents bor-
rowed from Barton, and fitted the tracks
found near the body, the tracks showing the
five bars which were on the shoes; one of
the shoes had blood spots on it. There were
other circumstances in evidence, several wit-
nesses testifying that they saw the prisoner
about 12 o’clock that night, or shortly there-
after, in the vicinity of the place where
the deceased was murdered, some of them

between 11 and 12 o’clock the prisoner had
tried to borrow a pistol. Barton further
testified that, when they were arrested and
taken tothe police station, the prisoner beck-
oned him into the toilet room and suggested
how he should obtain testimony as to how
the prisoner had obtained money. The driv-
er of the patrol wagon testified that the pris-
oner beckoned to Barton, and they went to-
gether into the toilet room. The chief of
police testified that Barton in the prisoner’s

gave his account of his movements that eve-
ning, which it is not necessary to recite, and
accounted for his money by saying that he
had been saving it up for some time to go
to Hot Springs, Ark. for treatment of a
disease, and that he had put his money
around in different places from time to time,

boarding house, that he pulled a plank off a
store and had concealed some money there,
and that he had hidden money between Riles’
Store and the alley, and that that evening
he had gone around and collected up the

state the evidence more in detail.
D. B. Paul, of Charlotte, and Newell &

and T. H. Calvert, Asst. Atty. Gen., for the
State.

CLARK, C. J.. There are no exceptions
to the evidence. Exceptions 1, 2, and 3 are
to the refusal of the court to give three
special instructions requested as to circum-
stantial evidence.

{1] The first request was to charge that:
“Where the state relies wholly upon circum-
stantial evidence for conviction, it is incumbent
upon the state to establish each circumstance
beyond a reasonable doubt. In this case, the
state alleges that the deceased was murdered
by the defendant, the motive being robbery;
and it alleges that the money taken from the
defendant's person and also off the witness
Barton was the identical money that was taken
from the deceased at the time of his murder.
Therefore the state must satisfy you beyond a
reasonable doubt, first that the deceased had at
least $417.50 on his person at the time of the
murder, and that the money taken from the
defendant and also from the witness Barton is
the identical money that the deceased had. If
the state has not so satisfied you, you will re-
turn a verdict of not guilty.”

The court could not give this charge as
asked. This is not an indictment for rob-
bery, and if it were it would not be necessary
to prove the identical amount charged. The
court in the charge correctly instructed as
to circumstantial evidence all that the pris-
oner could have asked, as follows:

“Bach essential and material fact relied upon
by the state must be established beyond a rea-
sonable doubt.”

The court also charged as to circumstantial
evidence: ;

“When such evidence is relied upon to convict,
it should be clear, convincing, and conclusive
in all its combinations, and should exclude all
reasonable doubt as to guilt.”

And further:

“In passing upon such evidence, it is the duty
of the jury to consider all the circumstances an
determine whether they have been established
beyond a reasonable doubt.”

This was a sufficient compliance with the
prayer. State v. Brackville, 106 N. C. 701,11
S. E. 284.

[2] The second exception is to the refusal

presence gaye substantially the same recital

of the court to charge that, ‘where circunl-

that he hid some money in a mattress at his ~ -

money thus hidden. It is unnecessary to —

Newell, for appellant. The Attorney General 3s

stantial evidence connected the prisoner with
the crime, each circumstance depends upon
the truth of the preceding one, and the chain
is no stronger than its weakest link, and
when once broken becomes a rope of sand,”
and further asks the court to charge as an
application of the principle that unless the
state satisfied the jury that the defendant
did not have the money hid out as he said,
and that the money which he had when ar-
rested. was the identical money which the
deceased had on his person when he was
murdered, and that the prisoner and no one
else murdered him and took his money, the
jury should return a verdict of not guilty.
tut this was not a case calling for the ap-
plication of the principle stated. In State
v. Neville, 157 N. C. 596, 72 S. E, 800, Mr.
Justice Walker said:

“There was no chain of circumstances in this
ease which required the court to tell the jury
that each circumstance which constituted a
link * * * should be established to their
full satisfaction. A chain is no stronger than
its weakest link, it is true; but there is no se-
ries of facts in this case necessary to be con-
sidered by the jury in order to convict the de-
fendant.”

In State v. Flemming, 130 N. C. 689, 41
8. E. 550, the refusal of the court to charge
“every link in the chain of evidence must be
Proved beyond a reasonable doubt” was sus-
tained, when in lieu thereof the court in-
ftructed the jury, as in this case, that the
state must establish every circumstantial
fact upon which it relies beyond a reason-
able doubt.
ein State v. Shines, 125 N. C. 730, 34 S. E.
502, the court said:

: There are cases of circumstantial evidence
in which each circumstance depends upon the
truth of the preceding one, in which case the
evidence may be likened to a chain which is no
stronger than its weakest link; but usually that
simile is inapplicable. Ordinarily, the circum-
stances accumulate, each one by itself being of
ho great weight, but like the bundle of twigs
in the fable, or the several strands twisted into
a rope or cable, becoming, when united, of great
strength”—citing several cases.

om when a charge giving the simile of a
ebain may be properly used, it refers only
to the necessary links in the chain of evi-
> es State v. Carson, 115 N. C. 743, 20 S.
-. 384; State v.
es v. Crane, 110 N. C. 530, 15
we The third exception is to the refusal

the court to charge, in the identical words
of the prayer:

“Where circumstantial evidence i
; ce is wholl
ae upon by the state for conviction, as in’ this
age the circumstances so relied upon must be
~ reg and convincing as to point unerringly
2 e guilt of the defendant and must exclude

ety possibility of his innocence,”
Oy court in its charge substantially com-
P bi with this request, saying:

“Do these circumstances exclude fro

; m
“gation everything except that of guilt?”
whtiker (essential or material facts) so es-
detent must not only be consistent with the
Ant’s guilt, but these facts must be in-

N.C.) :
STATE v. TRULL 133

exclude every reasonable hypothesis of his in-
nocence,

The whole charge is carefully expressed
and fully conveys the idea set out in the
prisoner's prayer, often repeated.

[4,5] Exception 4 was for the refusal of
the court to grant a new trial on account of
alleged improper conduct of the jurors. ‘The
matters alleged were that the jurors were
permitted to sleep in separate rooms and to
read newspapers containing accounts of the
trial, and that the hotel bell boy was admit-
ted to the rooms while the jurors were oc-
Meise them. The court found as facts

at:

“The jurors wer
in the bance or epee SP oy: 0 —
but that at night they occupied five adjoining
rooms on the same floor. The jurors were al-
lowed to occupy the five rooms on account of
oppressive heat. No persons had access to such
rooms except the maid at the hotel and the bell
boy, and the jurors communicated with no one
except to order water from the bell boy, No
juror read any newspaper during the trial. The
court further found that, while the conduct of
the officer in keeping the jury in five different
rooms was improper, yet that no harm came
to the prisoner on, this account.”

The requirement that the jury should be
held together is not statutory, but the prac-
tice of the courts in order to prevent the
jury being tampered with. It must receive
a reasonable construction. There must be
necessarily some separation, for the jurors
do not all sleep in one bed, and in the dining
room where there are small tables they can-
not sit at the same table, but it is sufficient
if they are segregated from mingling with the
crowd, and there are other occasions which
necessarily require the temporary retirement
of a juror from the body of his fellows. On
this occasion, owing to the heat, and possibly
from the difficulty of procuring a sufficiently
large room, the jurors occupied 5 adjoining
rooms, and from the testimony those 5 roonis
were on the same floor and segregated from
the rest of the rooms on that floor by a bath-
room and toilet “setting off this lot of rooms
from any of the other rooms in the build-
ings,” and all five rooms opened on the same
hall. The judge finds as a fact that the
jurors did nothing improper during the trial
and communicated with no one, except to or-
der ice water from the bell boy. There was
no impropriety in this any more than in
speaking to the waiter at the table to bring
water or dishes.

Even if the judge were correct in finding
that it was improper for the jurors, under
the circumstances, to occupy five adjoining
rooms opening upon the same hall, still he
finds that there was no communication with
outsiders (except with the bell boy, as stat-
ed), and that no harm accrued to the pris-
oner.

[6] It has been uniformly held that when
the circumstances are such as merely to put
suspicion on a verdict (which was not the

consistent with the defendant's innocence and

case here) by showing, not that there was any

UMIVERSIT

sf or er "Ata

i a a

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ica on

ang

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. betel

"(469 N. C. 74)

. he was estopped to claim under any chain of

132 85 SOUTHEASTERN REPORTER (N.C,

After giving the matter very careful consid-,16, 1873, and conveyance to plaintiff by deed
eration, we are of opinion that the judgment | April 24,1912. The defendant claims under

should be affirmed ; and it is so ordered. a grant to Thomas Henderson issued October
No error. 11, 1783, upon an entry taken out by Gov.
——— Alexander Martin, and mesne conveyances

down to defendant. The question at issue in

MOORE. vy. CURTIS. (No. 489.) . this action is: Which has the better title?

(Supreme Court of North Carolina. May 5,

There is testimony that the defendant and

1915.) those under whom he claims have been in

1. JUDGMENT €=>681—ReEs Jupicata — TITLE
«TO LAND.

possession of the small tract in dispute for
more than 20 years before the beginning of

Where ejectment between the predecessors | this action, and the plaintiff has not had
in title of plaintiff and defendant had resulted seisin of the land in dispute within 20 years,

in judgment adverse to defendant’s predecessors,

unless the possession of the defendant was

title originating previous to the judgment. the possession of the plaintiff, by estoppel, as
{[Ed. Note.—For other cases, sée a eRe was held by the court.

Cent. Dig. § 1202; Dec. Dig. €=68

There was an action in 1873 by Jesse

2. ADVERSE Possess1oN ¢=>41—DuRaTION— Moore, under whom the defendant claims,

TACKING OF INTERESTS—STATUTE. 3
Where defendant in ejectment held unin-
terrupted adverse possession of land through

against Richmond Moore, the grantor of the
plaintiff, putting in controversy the title to

himself and his grantor for 40 years, exercising | the land now in dispute, and at September

dominion over the tract as ge thee permite term, 1873, the cause was referred to an ar-
est or interruption from the plaintiff or ‘ g

pte agin ee 3 P bitrator, whose award was to be a rule of

those under whom the plaintiff claimed, defend-

ant acquired title under Revisal 1905, § 883,|court. Such award was filed at spring term,
providing that no action for the recovery of real| 1874, of Caldwell, and by this award the
property shall be maintained unless the plaintiff line in controversy was determined as now

had possession within 20 years.
(Ed. Note.—For other cases, see Adverse Pos-
session, Cent. Dig. §§ 184-206; Dec. Dig. ¢=>

claimed by the plaintiff.

{1,2] We need not consider the objections

41.] raised by the defendant to the regularity of
3. ADVERSE PossEssIoN €=16—UntTILLaBxe | that proceeding, for, conceding that it was

LAND—EVIDENCE.

regular in all respects, it was an estoppel of

Where defendant in ejectment and his gran-| that date, and the defendant cannot claim

tor fenced a tract of untillable land, used it as
a@ pasture, and took timber, barn lumber, and

under any chain of title reaching beyond the

firewood, such use was evidence of adverse pos- | judgment entered in 1874. To that extent it
session to go to the jury on the question of|is an estoppel. But there is evidence here

whether defendant had title thereby.

of uninterrupted adverse possession of the

{Ed: Note.—For other cases, see Adverse Pos- land by the defendant and his grantor, ex-

session, Cent. Dig. §§ 82-89; Dec. Dig. ¢=10.]

ercising dominion of an owner over the locus

4. JUDGMENT €=617—Res JupicaTa — D- in quo, claiming it as his own without pro-

FENSES BARRED.

Judgment in ejectment against defendant’s |test or interruption from the plaintiff in

predecessor in title did not estop such defend-
ant from setting up title by adverse possession,
secured through the continued possession of
himself and grantor, since the rendition of such
. judgment.
[Ed._Note.—For other cases, see Judgment,
Cent. Dig. §§ 1062, 1130, 1134; Dec. Dig. @=
617.] ,
Appeal from Superior Court, Caldwell
County; Harding, Judge.
Action by D. P. Moore against E. P. Cur-
tis. Judgment for plaintiff, and defendant
appeals. Reversed.

W. C. Newland and Edmund Jones, both of
Lenoir, for appellant. Squires & Whisnant
and M. N. Harshaw, all of Lenoir, for appel-
lee. 4

CLARK, C. J. The land in ‘controversy
contains about an acre, and it seems is bro-
ken and too rough for cultivation, and valua-
ble only for what timber grows upon it and
as a woods pasture for stock on adjoining
land. Both the plaintiff and defendant claim
under grants from the state and mesne con-
veyances. The plaintiff claims under a grant
to his father, Richmond Moore, issued April

this action, or those under whom he claims.
Taking this evidence ‘as true, the defendant
has acquired a new estate by disseisin ac-
quiesced in for 40 years by the plaintiff.
Such new estate can thus be acquired. Call
v. Dancy, 144 N. C. 497, 57 S. BE. 220.

{3] There was evidence that the defend-
ant and his grantor fenced up the locus
in quo, used it as a pasture, and got timber
from it, barn lumber, and firewood. The
land being unfit for cultivation, such use
of it was evidence of adverse possession
which should have .been submitted to the
jury, for it was evidence of an appropriation
of the land for the purposes for which it
was best, if not solely, adapted. If the jury
had passed upon the question and found that
such possession was adverse and continuous
for more than 20 years prior to the begin-
ning of this action, the plaintiff could not
recover. Rev. § 383.

[4] The court below, however, instructed
the jury that, in view of the finding of the
jury to the third issue (1. e., that the line had
been established by the proceeding and judg-
ment in 1874), the court held, as a matter of

eel

@—For other cases seo same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes

¢
&
3
a

N.C) STATE

v. TRULL 133

law, that the jury should respond to issues; work a reversal that jurors asked bell boys for

6 and 7 (which the jury had left unanswered)
that the defendant had not been. in posses-

water.
[Ed. Note——For other cases, see Criminal

sion of the land under colorable title for 7 am, Cent, Dig. §§ 2048-2053;' Dec. Dig. e=>
years next preceding the commencement of wee

this action, nor had held it adversely for
more than 20 years prior to the commence-

ment of this action.

The court evidently was of opinion that
the proceeding in 1874 having adjudicated
and settled the line, as between the parties

' under whoin the plaintiff and defendant re-
spectively claim, such adjudication was an
€stoppel, and that the defendant could not

STATE y. TRULL, (No. 425.)

t

of accused, and that such money was the identi-

(Supreme Court of North Carolina, May 5,
% 1915.)

5. CriminaL Law €=925—New Triat—Con-
DUCT oF .JuRY.

Where accused was in no way harmed by
the jurors sleeping in adjoining rooms and re-
questing the bell boy to bring them ice water,
ne Was not entitled to a new trial on that
ground.

FOU tg ng 2 soe ones, see Criminal
w. Cent. Dig. 2247, 2250; Dec. Dig.
$=925,] 2 hit

6. CriminaL Law €=911—New Trrar—Ver-

set up possession since contrary thereto, how-! DICT.
ever long continued. The evidence of such Rey og Pond ‘ima merely put sus-
; Sea ‘ ‘ yerdict, the anting

oo should have been Submitted to the! trial rests in the diporetioe’ of tae iia cone
= : [Ed. Note.—For other cases, see Criminal

rror. Law, Cent. Dig. § 2134; Dec. Dig. €911.]

7. CRIMINAL Law €>636—TRIAL—PRESEN
(169 N.C. 363) OF ACCUSED, oI

W here accused was present during all pro-
ceedings, though at times he seemed sleepy,
and the court had his condition investigated,
the fact that he might have been using opiates
smuggled to him was no ground for disturbing
a conviction.

(Ed. Note—For other cases, see Criminal
pall Dig. §§ 1465-1482, 2120; Dec. Dig.

8. Criminal Law C938, 1156 — AppraL —
NEW TRIAL. :

(Ed. Note—For other cases, see Criminal

cal moncy that deceased had, was : i
1 ; Proper, for; Law, Cent. Dig. 2306-2315, 2317 it—
the prosecution Was not for robbery, and, if it | 8071; oe Dig @ose tikes" pgitiensa

d been, the exact identity of the m y
Rot have been established. se ee:

{Ed. Note—For other case Honici
Cent. Dig, § 594; Dec. Dig. $289 ,] =a

+ Criutnar Law €—784 — InstTRucTIoNs —
TART TAL EVIDENCE.

Z ere the state relied on circumst i
evidence. to show _that accused apedandl ae
ae and took his money, but there was no
. les of interrelated circumstances, the refusal
; a request that, where circumstantial evi-

ence is relied upon, each circumstance depends

(Ed. Note.—For other cases, see Criminal

Law, Cent, Di ES ; i
Dig. oni} §§ 1883-1888, 1922, 1960; Dec,

3. CriminaL Law €=829—Triat—
A I ~
Pe ALREADY: GIVEN, a eres
» Here it was charged that the circumstance
a relied upon should exclude every conclusion
that’ that of guilt, the refusal of a request
tin where circumstantial evidence is wholly
ana on, the circumstances must be so clear
ruil ropvincing as to point unerringly to the
a of accused and exclude every possibility
innocence, Was proper.

{Ed. Note—For other ca imi
: 5 ses, s
Law, Cent. Dig. § 2011: Dea’ Dig. Paar

4. Crisinan La
aY—Seranapee €=855—Custopy or Ju-

nay (3 & capital case, it is not improper. to al-

roms, all being on the same floor and sepa-

—— from the rest of the hotel; nor will it

9. CRIMINAL Law €==950 — New TriaL —
NEWLY DIscoverED EVIDENCE,
A motion for a new trial for newly dis-
covered evidence cannot be made in the Su-
preme Court.

(Ed. Note.—For other cases, see Criminal
ban Cent. Dig. §§ 2345-2348; Dec. Dig. >

10. CriuinaL Law €=1082—AprEaL—Docx-
ETING,

_ The state’s solicitor cannot extend the

time for docketing an appeal from a conviction

by consenting to a delay, that time being fixed

by statute and rules of court,

[Ed. Note—For other cases, see Criminal
Law, Cent. Dig. § 2727; Dec. Dig. €>1082.]

Appeal from Superior Court, Mecklenburg
County; Thomas J. Shaw, Judge.

Charles E. Trull was convicted of murder

in the first degree, and he appeals, Af-
firmed.

The prisoner was convicted before Shaw,
J., at June term, 1914, of murder, in the
first degree, of Sidney Swain, who was killed
by a blow on the head with an iron pipe, after
midnight on Saturday April 16, 1914, while
going home from his store. -It was in evi-
dence that the deceased before leaving his
store about 12:20 at night took from the
money drawer all the cash therein, about
$225, having been taken in that day, besides
there was in the drawer the cash taken in
for three or four days previously, and that

F
@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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136 85 SOUTHEASTERN REPORTER

undue influence, but merely opportunity, the
granting of a new trial rests in the discretion
of the trial Judge. This was fully discussed
and decided in State v. Tilghman, 33 N. C.
553, and. very pumerous cases in the cita-
tions thereto in the Anno. Ed. Among many
in point are State v. Brittain, 89 N. C. 504,
and State v. Crane, 110 N. C. 537, 15 S. E.
231, and cases there cited, and State v. Mor-
ris, 84 N. C, 765, and citations in the Anno.
Ed. At this term the court has reiterated
in Lewis v. Fountain and in Cook v. High-
land Hospital that, where the circumstances
are such as merely to put suspicion on the
verdict because there was opportunity and a
chance for misconduct, this is not sufficient
to set aside the verdict unless there was in
fact misconduct. When there is merely
matter of suspicion, it is purely in the discre-
tion of the presiding judge, citing Moore y.
Edmiston, 70 N. C. 481; State ¥. Brittain,
supra; Baker y. Brown, 151 N. C.17, 65 S. bk.
520, and State v. Tilghman, supra. In Baker
vy. Brown, this proposition is fully discussed
and sustained by Walker, J. In State v. Har-
per, 101 N. C. 761, 7 S. E. 730, 9 Am. St. Rep.
46, where 11 of the jurors went to dinner un-
der charge of an officer and the other remain-
_ ed in his room under the charge of a sworn
deputy, but the court found there was no
effect on the verdict caused thereby, this
court sustained the judge below in refusing
to set aside the verdict. That case was a con-
- viction of a felony, though not capitzl.

Under the ancient common law, after, the
jury were charged they were kept together,
both in civil and criminal cases, “as if they
were prisoners, until they are discharged.”
Bannister, J., in Bishop of N. y. the Earl of
Kent, 14 Henry VII, ¢. 29, quoted by Thompson
& Merriam on Juries, § 310. In those times,

_ trials of causes lasted but a single day, and
the power of the court to adjourn from day
to day to give jurors opportunity for rest
and refreshment was doubted or denied. In-
deed, the jurors were denied “meat and drink”
until they had agreed. In modern times, there
has been a great amelioration, owing to the
greater intelligence of the jurors, the greater
respect for their intelligence, and the changed
conditions of modern times. Indeed, in civil
cases, the separation of a jury after being
charged, though without leave of the court,
before they have agreed upon their verdict, is
not now, as a mere matter of law, ground for
a new trial. Thompson & Merriam on Juries,
§ 315. In some of the states this has been
extended to prosecutions for felony, and even
in capital cases. Thompson & Merriam, §
318. In this state the jury in felony cases,
after the charge, are required to be kept to-
gether, though there are many cases in which
the jurors have been, and must be, permitted
to separate during the progress even of a
capital trial under the charge of sworn ofli-
cers. One or more of the jury in a capital

(N. 0.

visit their homes under the charge of a sworn
officer. See Thompson & Merriam, § 321,
and cases there cited. We would not be un-
derstood as approving or encouraging such
practice. We merely hold, in this case, thac
on the facts found there was no legal separa-
tion, and that even if there was the judge
having found that there was no communica-
tion with outsiders, and that no harm accrued
to the prisoner, he properly refused to grant
a new trial. It will be noted that there is a
distinction between the discharge of a jury
before verdict, and a temporary separation,
for purposes of necessity, or a quasi separa-
tion, as in this case, where the jury is really
still kept separate from outsiders and the
judge finds that no prejudice accrued to the
prisoner.

[7] The prisoner also excepted to the re-
fusal of the court to grant a new trial on
the allegation that the prisoner was under
the influence of an opiate’ during a part of
the trial. The court finds as facts that while
the court was charging the jury the defend-
ant was asleep a part of the time, but that
the court did not know of the fact, and that
the counsel of the prisoner did and failed
to call the attention of the court thereto;
that late one afternoon during the trial the
court discovered that the prisoner did not
seem to be right and at once adjourned court
for the afternoon and had the prisoner ex-
amined by the county physician, who the next
morning reported him in good epndition ; that
then the trial proceeded, and the judge with
the aid of the county physician observed the
condition of the defendant thereafter during
the trial; and that he was in full possession
of all his faculties and entirely capable of
conducting his defense; that, if he was un-
der the influence of an opiate at any time, it
was smuggled to him without the knowledge
of the officers and was taken by him volun-
tarily. Though the court finds that the pris-
oner appeared drowsy at times, it also found
that he was throughout the trial in full pos-
session of all his faculties and capable of con-
ducting his defense. The court could not
have taken more precautions than the care-
ful judge appears to have taken in behalf
of the prisoner in this case.

(8, 9] The refusal of the court to grant a
new trial for newly discovered testimony
rested in his discretion and is not reviewable.
State v. Jimmerson, 118 N. C. 1173, 24 S. E.
494; State v. De Graff, 113 N. C. 690, 18 S.
E. 507; State v. Morris, 109 N. C. 820, 13 S.
E. 877. The findings of fact by the court on
such motion are not reviewable. State v.
De Graff, 113 N. C. 690, 18 S. E. 507; State
y. Morgan, 120 N. C. 563, 26 S. E. 634; State
y. Lance, 109 N. C. 789, 14 S. E. 110; and
State v. Dunn, 95 N. C. 697.

This court has uniformly held that:

“A petition to rehear, or to grant a new trial
for newly discovered testimony, cannot be en-
tertained in this court in criminal actions.

case have been permitted, in some states, to

State v. Ice Co., 166 N. C. 404, 81 S, E. 956,

* ,120 N. C. 277, 26 S. E. 782, citing numerous
.| cases and with numerous annotations in the

. that the case might be postponed and docket-

N.C.)

FINGER

62 L. R. A. (N. S.) 219, citing numerous and
uniform decisions.

After careful consideration of all the as-
signments of error and scrutiny of the en-
tire record, we find no error.

(10) We note that this trial was had in
June, 1914. Under the statute and rules of
the court, this appeal was required to be
docketed at the fall term of this court before
the call’ of the docket of the district to
which it belongs under penalty of dismissal.
Rules 5 and 7 (140 N. C. 654, 656, 53 S. B.
v, vi); Rev. 591; Pittman v. Kimberly, 92
N. C. 562, and numerous cases thereto cited
in the Anno. Ed., and Burrell v. Hughes,

_ Anno. Ed. It appears in the record that the
_ solicitor agreed with the prisoner’s counsel

ed at this term. This was an irregularity
“and was beyond his authority. The statute
“must be complied with, and the cause docket-
_ed at the next term here after the trial be-
4 low. If in any case there is any reason why
this cannot be done, the appellant must dock-
et the record proper and apply for a cer-
tlorari, which this court may allow, unless
, it dismisses the appeal, and may then set the
‘case for trial at a later day at that term or
Continue it as it finds proper. It is not per-
mitted for counsel in a civil case, nor to
the solicitor in a state case, to assume the
functions of this court and allow a cause to
be docketed at a later term than that to
which the appeal is required to be brought
by the statute and the rules of this court.
No error.

(6 N.C. 72)
FINGER v. GOODE. (No. 485.)
(Supreme Court of North Carolina. May 5,
1915.)

1. Contracts €=147—ConstRUCTION—INTENT
OF PaRrTIEs.

In construing a written contract, the: in-
tent of the parties as expressed in the entire
instrument, giving effect, if possible, to every
part, must prevail; and, where the language
expresses clearly the meaning of the parties,
se means of interpretation are not permis-

(Ed. Note—For other cases, see Contracts,
Cent. Dig. §§ 730, 743; Dec. Dig. @=147.]

2 Locs anp Logcine €==3—CoNnTRACT FOR
Cuttinc—SaLe or LAND.
W here a contract between a landowner and
& sawmill owner for the cutting of timber on
e land provided that if the owner should sell
apy or all of the land, the contract should at
once become null and void as to the part sold
and conveyed, and contained nothing to indicate
at there was to be any period of time between
the execution of the contract and the commence-
ment of operations thereunder, the landowner
pip sell part of the land without liability to
the sawmill owner, even if the latter had begun
e cutting.

(Ed, Note.—For other cases, see Logs and Log-

v. GOODE 137

Appeal from Superior Court, Lincoln Coun-
ty; Adams, Judge.

Action by O. B. Finger against J. A. Goode.
Judgment for defendant, and plaintiff ap-
peals. Affirmed.

On the hearing it was properly made to ap-
pear: That plaintiff owned and operated a
sawmill, and defendant owned a body of
land lying in Lincoln county, known as the
“Derr lands,” composed of different and co-
terminous tracts and amounting to about 700
acres, and, in December, 1909, the two en-
tered into a contract, in terms as follows:

“This agreement made this the 11th day of
December, 1909, between J. A. Goode, of the
county of Lincoln, state of North Carolina, of
the first part, and Calvin Finger, of said county
and state, of the second part, witnesseth: That
the said J. A. Goode does this day contract and
agree to let the said C. B. Finger saw with a
sawmill and convert into lumber, all the timber
now standing on the said J. A. Goode lands
known as the ‘Derr lands,’ containing about 700
acres, adjoining the lands of M. A. Ewing, J.
P. Mullen and others. And it is further agreed
that each of said parties shall pay one-half of
all expense in chopping and hauling all logs to
sawmill and delivering all lumber to market,
and expense of collecting pay for same. And
it is further agreed that the sawing of said
timber into lumber shall be a rebuttal in full
against the timber, as it now stands. And it is
further stipulated and agreed that each of the
parties herein named shall receive one-half of
all the proceeds derived. from the sale of all
said lumber. It is further agreed if the price of
lumber should decline below one dollar per hun-
dred f. 0. b. railroad, the sawing shall cease un-
til the price shall again advance to one dollar
per hundred f. 0. b. railroad: Trovided, the
said J. A. Goode shall sell and convey any or
all of the land herein mentioned and described,
this contract shall at once become null and
void, as to the part sold and conveyed. It is
further agreed that in case the said J. A. Goode
shall sell the timber in a body, then and in
that case the said C. B. Finger is to cut and
saw said timber at customary prices.”

Signed and sealed by the parties.

That plaintiff placed his mill on the said
lands of defendant and began cutting the tim-
ber, and while there defendant sold 377 acres
of the land to one J. Smith Campbell, and
plaintiff was thereby prevented from cutting
the timber on the 377 acres. The case on ap-
peal further states that it was agreed by
the parties that if, upon a proper construc-
tion of the contract, defendant had’ a legal
right to sell said 377 acres, after plaintiff be-
gan to cut the timber, plaintiff had no cause
of action, and, the court having intimated
an opinion in favor of defendant on the prop-
osition as submitted, in deference to such in-
timation plaintiff submitted to a nonsuit and
appealed.

C. E. Childs and C. A. Jonas, both of Lin-
colnton, and S. B. Sparrow, of Dallas, for ap-
pellant. Ryburn & Hoey and D. Z. Newton,
all of Shelby, and K. B. Nixon, of Lincoln-
ton, for appellee,

HOKE, J. [1] In the recent case of Gil-

sing, Cent. Dig. §§ 6-12; Dec. Dig. €=3.]

bert v. Shingle Co., 167 N.C. 286-288, 83 S.

>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TAM A

7

x

17Y OF a:

“¥

SE, Cem ey cme

UMIVER

Fi]

»
44


Watt. 119.
nm, 152; Web,

sLE.

Brenizer, 48°:

A. McRae, 74.
tives—R. Cc.
8 Hutchison,
Ot. T. J) Ren-

+ C. Moore,

anss8s 0 Te.
ton, 44; N.. W-

son, 16%. =.

rues | fut te ae
sheriff —W) “O. Cechran, $4) J:
“ttunter..4 8; E).0, Johnston, 26)
We Wallace, T78.0 i. eee
i Treastirer—J. \W.) Stinson, 201).
Register of Deeds—W.. M.. Moore.
f204 rie ae ied
t Surveyor—-J, .E. Walker. °'139, ;
{. Coraner—Zy A.’ Hovisy; 1bieC, B;
Sikes, 143.) a ha

‘ ai:

'
}
{ ryhill,./133;

Uwe My) Garrison, 7

{ Dorfald, 154; Wis

} AL Newell, .:150;) J.
hat SW Phillips,.24; “A.

SPST. Smiths 219; Jy

$ 3 \ “ B . *
Board .;/af Fducationi—James. P-

Ws MM. ee E.. Sustar, 175.

ker, 168.
8, 123; Vv. B-

. Withers, 145.

John A. New-
22: 3. W.-Phil-
6; Z. T. Smith,
E. Sustar, 58
James P. Ar:
192;° We
nderburk,

fayes, 183.
, 1373, Prestéen

»hnston, 63;

tinson, 367.

-W. Bo Moore, f

eiker, 358.
vis, | 252: C. 1,

s. Withrrs,

lern—D. Cy Tet
Dradford, 24”;
A. Morria | Mc-
cKee,182;cohre
Parks.) 15¢; 4
iM. Rhyne,

lentatives—-R..
rt A Mute
162; T. Je mer)

rt24, Moore, |
pak
ii

Ardrey, 78)... T: Beard, 131;/W. B.

| Batridge, 94; B.D. Funderburk, 134;

J Arthur |Henderson, 14tin We *d-
Hutenison, 126; W.:M. Morrow, 11
J. Cy Reidy 81,0. We Watt:

For Congress—Webb, 130; ) Pres

12G.c134°* vig deve
Se caer enema te

WHITE MERCHANT =
AND ROBBED

}
}

i

: iddey, Swain

tho: operates a ‘small’ SF ee ‘Men Wounded at the} ahead in Carteret,» Craven. Onslow

the intersection: of | Mint

he #raiiroad. was wayiald),
hit

k this morning) while
; store: to «his

head with’ aj):
hy

+
hized’ nd. | left
} throw’ o

} houses

} the money that,
} bon, 8 ated:
and $3! :

dastardly”

mitted 2 in the annals aot

; ity }.3
The miscreants, of whor? there-must tric car at~the-station, ahout 11:30.' Hern Jate tonight. Mr. Abernathy az-
L haves, béen . several, | waited “in the{:MeDuffie, shot in: the abdomen, WS; se: fn that ne. was confident ot Dew if

shadows in. the. rear: of <thé “store:
the slity, leading: into. the:
Garibaldi’sistd yon Mint)

‘al ‘wittith = 60) fee!

@a' ‘street,

nt was. ed, hit ove

bed and lft for dea

feet, ati hig

kroana.¢mana

the ‘store }In dttestion
discovered” hér “h

in’ his own:

gash,

: : « famicted with ‘ferrtite | i
N ~~ skull) wae Ita dare! 1 BP Sy ea
‘for. eeVeral inches and | blood was) ma Pl :

“"\ wae noted, for the money wich hep Sct stomp aes ae Faison wele.
| edrtied about on his person and this},

‘ ta fatally wounded by an unknown} Mr. Thomas said.
*tobbed of ~ all],
+

deed Was one. of othe -mostijat |
; tazen ever’ -com~='_ dane.

bP
e

nirg). on September 3, 1915.

~~

coring trotm the wounded man’s eyse, |

nose, And ears, mie : a eh :
“Mra, Swain immediately save the;
atdzm and tie officers were notified.) # j
 autontobile patrol Was rushed + Og; ‘ 3 Pitan
to. the sscene) and. the wounded man : TEI pA EE
owas’ removed to the Presbyterian} :
Hospital and several physicians were)
aummoned.: No statement could pal
vouchsafed there this morning as to;
whether’ the wounds would: prove
“fatal or not but the worst ts feared,
f Oats ry Fae cs a clerk employed ih mares aig
in yr; Swain's store, testified that! Sa OWN TR Se ’ ;
‘Mr. Swain had left the store about, | ere M3 ie Sep ehY SFR eT
12:15 with between $250 and $300; ) Newbern, May 18 Incomplete re
_on -his person. “When the officers! turns from th arious« i precincis
searched him . they could discover} rt ven, Onstaw, ‘Pamtice and)
only -@ few: dollars ‘in change Jeftsteret Counties anew that Hon. Charle
he.“ pockets had © evidently been) R. Thomas is in. vhe lead in the ces,
astily rifled: geesvional rats an Newbern Gue
Mr. Swain is about 45 years of aze leau Thomas oy % sonal majority, aod
dnd has a wife and one child” He| invthe entire “cpugty tra vote. waft

divided one thelr vote. while
while Wallate

undoubtedly) led to the assault this; ang white received some ballots.

orning.. (There® were no chres that’. ’
is |» In, Carteret. County,
ed “up by the officers, with Thomas and Hood fo
' Faison and «Guion seoming next. ss
oe “oi. |} Onslow County the réturn, show thai
Ps Thomas. is well yin the, lead ‘on “tn

ran } aa ~ {first choice: votes, while Hood and
’ > 5%} Fatgon receiyed about anyequal nun:
: f , } per df. first and sécord-chvice votes
i ia-2 aa In \Pamlice | County 2Thomas N's”

_ hth ran‘abo

ould be, pick
ut developments ;may be expected

‘i

Hood bout even on the first ang

3 seccnd-choice ballots, followed” vy
re > Faison and Guion... Wallace, with the”
, A exception of Cart County. secured — =
: Hela hc ia ~. Ya small vote,

‘| Charles 1 pernathy of Beautart
‘ig in the. lead for, sdlicitor. golng tar”

' “ : ; and: Pamlico Counties of Rawls Turn.
Faw, inate oey by, Re- © a wees :  eeasar> AA +s pvp 98 :
iv ; : ow that. he will receive at “GO:
Eexere st - “nes >. fd per_cent/ of, the votes ‘in, these coun

‘Charles McDuffie. negro, was probz| Yer an. interview given. out tonigh

or

hite )man last night, and - Bert} tecn am confident that A oe wins 3
“RteVeneon| piso’ a negro and the for-| yor from. Cour ave. already:
‘mer's’ companion, was less seriously Saas Soe ed oe era va np mig :
owounded; at’ the Interurban station) +; Serie the past fow er tee { ao
Creek. The -shooting “was on ante ‘
4 ie \Ts think. there is any doubt but |that

“waw stated, by a white’ Man} wij) cet the nonitnation.”

chp had iuat alighted from an ¢léc<). “In a long-distance mesuee to New-

r
: ght> to, Charlotte and placed’ in) ing « nominated and “beleves-4Bat. He. 77)
the™ Good Samaritan Hospital: for! would get at. least:75 pet. cent) of”
‘treatment. His condition Was” re* votes cast. (°°  ? 24
Stevenson > Friénda ‘of O. 4. Guion confidentiy —

his; sawn that. he ieads Thomas in Crav-|

4 ounty and that pe has polled a”

fe district); 55"

learned by’ the! large vote all over
hey went out, boo .( oy

, cother _ than Ds

tioned above. ~

trouble presi:

ik, on.
the ot ;
tos tales} eh 7
ed ete ON,
ifoorm the °
Palace LD’

Re SSeS

mh sober ete
~ , * pS % y Ur

ae |


CHARLOTTE DA
DAVIDSON, : : ;

—— e--~— Pub. SE *

Sept. 1.—While no defi- |
nent as. yet exists. it: is
xpected that Dr. Wilbur,
da Mr. Alexander — bart

Octobér and conduct'a'} have no right: to that nobl OF,
series of services. . The |name wharescts carte ete han twes
¢ for their coming is Oc- | one will ever-again remember or link.
t berg to peg oy "9 ve them together, hd Ky ae .
ere they are. to condyct}).” MES NEON Vict :

It is likely that the’ tew| FREES BARTON OF BLAME.

t’ Barton: di

ng the Chapman-Alexan ! ‘not kill or, have any
wil}, be used: by othér | part or knowledge of ithe robbery, I

isters s0 ag to give the
rhole week for the meet-

: t5 Pied

. Beaty: class of °03; of

formerly engaged in mis~

h Cuba, is here today, in-
the campus and his

nters Davidson. this ses-
Medina, another Cuban.
ere last session; will. be

s late In returning. i
tial faculty meeting, held
| the members wete pres-
Prof. John L. Douglas and
putkle. who are expected |
|

“My, noble: parents): — ;
sisters do not déserve such @ disgrace
and I fee? ynworthy to: breathe their:
namés, ‘To all those’ who TD uninten-
tionally ‘wronged | by ny deeds, espe-
Clally the, widow and “her son) and
loved ones, I feel Indeed sorry for and
fully repent, witht all any;aching heart

of the year. , for .my sins and wrongs. Seek
Dupuy and daughter. Miss| “To Mr. Jake (and ’Mr, na ove tp

ung Cuban. Del Rio :

Wood of the University
new associate In applied
and sciefice ix in place

leave Davidsow. today.4 leave only my best wishes and the fgrt
will teach again in Lex~/ that. rou never won my case was that
this Winter. : ‘) Eo never):tolad you the truth.“ l-am
ning and. daughter, Miss); but) a’ poor, weak, deluded and "mis-
Owen Manning have -re- | guided human* who-in a! moment ‘of
1 Mirginias “Mra). /Man- | weakness sinned, and ‘for the’ sake of
cupy. reoms in her Yown | my. people and self and all made it
South street, Miss Man- | still -worse) by: never, admitting: the
ntinue her studie@ fn: the | truth. DE Se 3 Mae reetesins
3 oy 15°" beseech* every: one who, has a@
4 school opens tomorrow. H mother Or respeet’ for home to! let my
imming jn charges: ¢The) misfortunes be-an example that: they
«are Misses Maud Vinson!) may live right. and learn/a» lesson
bf Greenwood, 8 C, 7) from my end. Again do [cask® you
D. Vinson will be absent land the world not *to judge me for
yet, remaining at Mone} my) folly, for: the’Good ° Book \says:
“+p Judge not that ye be not fudged.” at
uneral services: were con- ; ~ THANKS FRIENDS, 9S 25
ev2 John. W. Lafferty this !°.“T admire you,.-Mr- Clif, asa
ihe grave ov the sbody Brother, Also, @Mr, Bteve: ndiMr: Jake,
Mra. Hobert ‘Qarry) The} and my prayers and best wishes: are
ipanied by, @ Apmber of) that L shall’ meet in-glory, where
A trends trom Charlotté, | are!'no. sorrow no ; nor parting
the! 8:45 train, imous i Hy See
ere the immediate. mem:
‘famby,.. Messrs” Hugh
1, Jameg Steele Arid sisters
aville. § aE Sas
in OF Camden and kh Pi) for’ yourssov
arshville are among thé |too late).
recent graduates, present! © *'To the: true Ch
ing of college. eet ‘Pink especia'l To wish h
ind Mrs. A. ‘A. MeGearhy, | ty have: thought” deeply. fall: letters,

meen spending their Vack- advices and s mons.2-1 have carefully

ts. McGeachy's parents:at| read daily his Uttle Testartient, that
turn to Charlotte-tomors| hé in hia) noble-hearted thoughtful-.
: oo. Veep ness. gave me and it has brought me

nai nig IE »° | nany: comforting thoughts) always
LLAKUF CREEK. ~”Y 4| reverting tatk to the #ervices he onte
> 2 held in fai hen: he scyght jane 20

“reek, Sept. 1.—-At the} earnestly ‘sonl’s welfare. Also,
ek manse | -Migg) Inde | Mrs. Lene Tr. Bpeir, Mt. Walsh, Mr.
t oMro Mark Be Whitley! Miller: Cartép and all, especially feel
ed Sunday by Mev. John H indebted totheir noble Christian. ef-
he, young couple will live | forte, And ‘while it. waa apparently
: ''seéd sown in stony gran na, thank God

CTBT Y OP TENE |e hae heli n ea and aafeet that T

‘reg OA.
1 on waht acid cep}

appreciate kindly. and |sincefely your | de

“I -teel doubly ‘grateful to Mr. and

|) Mrs. Fesperman and fam!-y for kind-

‘hess shown me during. my. long con-:

{ finement' fn their chafge, and to Mrs.<

HD." Sones, who ever » proved ©

| Christian “noble-hearted | mothér» to.
every prisoner in jail while I> was?
‘ther. May God give her peace, ever, |
for’ hers kind? motherly attention “has”
never ceased ‘since ‘her acquaintance.
withs me,

feel as happy and) ;

. although I am sitting here with

a fertain awful end only 2 few hours

ay when I shalt leave you; but I

old you, to your promise which Wag
meet me. there... And (3

shall one, sweet day meét you, In

Paradises “And t. wish: to ‘clasp* you

“

and* Mr, Jake and. Mr,’ Steve by. the}...

hand. and “recalls this night upon
earth on which £ write this anda. be-
gin to make my peace with God. /
‘Ask the newspapers to deal gently
ithime, especia‘ly: The: Charlotte
bservér, which has ever knocked
me.from the start. Farewell, every
friend.\,,Bear ‘in’ mind ‘none of. my
stories previously told, were true, Dut
this \ is “my dying,’ true <confession.
Prayi God's intinite metcy>on” tiy
soul and blessings for, my noble pa-
rents, brothers” and sister. - Fare-
well. ; “CHARLES E. TRULE”
> WRITES, POSTSCRIPT: Uh ©:
In’ a postscript Traut writes Jaks
Newell that atl he (Terull) had) said.

j concerning hia ‘case involving Cleves

Jand and Smith’ was a mistake, and
that he: is humb'y sorry: for alt he
“go weaklytold the Governor's secre=
a, and alf of: it was untrue except
$4 to his good .conduct in. jail and
the fact that he wanted to lay before
Governor Craig his appeal in place

‘of waiting on’ the Su

He -adds that alt»
Wils6n. was untrue.
neVer. told any one the truth except
hig Spiritual adviser, Revo My, Potter:
He pays tribute to Dogtor Wishart
baying he (Trull) was merely work~
‘ing for a collecting agency. that was
‘handing Doctor: Wishart’s accounts
for conection sand \that Doctor Wis-
hart never/qarte hun dope and al-
Ways urged him_against all evi! and
pele emanly cdmrduct, even smoks:
ng. Cea ghyan tet
He qyotes a’ number .of Psalms,

WANTED—Automebtio roadster: Mu
cheap on terms, or will | trade | «
Grand’ piano or veveral sets fine new 4
tore and? Rodney, care Observer

WANTED— buy *mall National

Register.” State.cize, price and con
in Jetter. News Candy Kitchen, Lanc
SCh ;

WANTED—Threa of four rooms for
a Keeping.) preferably downslatra.. “R,’
PI cone ‘

WANTED—Shipments of good, clean.

‘cream, to test: around 30. per vent,
weet market pric#a paid for butter fat.
ling Creamery Ca, Greensborn, NLC.

WANTED—To tuy=ntce” home ‘fn

, Pines’ aqetion. Give price, locatio
description. Addreas Mr. Newcomer,
‘Observer, D

axe m2 small apar
July 1. Must be
vers! '
ies eae:
WANTED—Room with modern conve
oGated Near business sectton, for
“man. Address X, care Observer.

WANTED—To do yourswork night
except Sunday’ W. G.° Jarrell M
a... a
*
a»

. 4

WORK WANTED,


. eI Ro
Medina, another
eineres ian seasion, will. be
rn bakk late“ in returgio

he Initial faoulty nreeting: fh
ght al! the members wete pres
‘ept Prof, Joha Ll. Denese
> Arbuckle, who are Mab:

work of the year.

J..¥. Dupuy and anheeee ‘irae
Jupuy leave . Davidson today.
Jupuy will teach again«in Lex,
. Va, thie: Winter...

Manning and daughter, Miss
. and Gwen Manning have re-*
from | Virginia. Mras* Man-
rill oceupy
ce on South street.) Miss Mans]
vill Continue her studies in th
graded dnoat opens: ‘tomelhee!
pal Cummins'in chargé. © The}
hachers are Misses Maud Vinson
nes of Greenwood, 8. Cx”
WD. Vinson will be abeent
weeks’ yet, remalning at Mon-

ple funeral nervices were con-
by Rev. John W. Lafferty this
ng at the gtave over the body
late Mrs. Robert Query. . The
accompanied by a number of
es and friends from) Charlotte,
d-on. the 8:46 train. > Among
here were the immediate: mem-
of the family. «Messrs Hugh
Ervin, Jamey Stecle aa
Mooresville.
% Dunn ef Camden and-
of Marshville are. “aniong’ the
‘rs of recent graduates present,
> opening of college.
Dre and Mrs, A. A. Me
have been spending their) Vaca-.
ith Mrs, McGeachy’s parents af
son, return to Charlotte tomor=

MALLARD CREBK.
i ig goo

lard: Creek, Sept. “1A
rd Creek manse*Miss --Izel-a’
vr and Mr. Mark: B. Whitley.
married. Sunday by Rev.’ John
rol.) The young coupte will: live
hTitas ¥

» Young People’s Solely of the}
rd Creek Chureb! will’ give: an
ream Rite Jeld at the Ma&tpwe “tu-

the

i Ehe Sick
willbe given
ight By the lington students,
@}i mlso be .givel Again! a Arling-
aturday night 4 wy
xR, rd Spare:
is visiting relatives here.
s. J. Eo Oliver, who “Mas. been
ting some. time with her daugh~
irs. Ramon = has Sees
r home in Erle» Pa.
Evilahlia -Causart and™ bce
Gregory of Charlotte are Ruestay
ixvew Velma god. Clemmie, Flowe. |
s Ruth Flowe. of Spartanburg.
has been visiting her cousin:
Annie Hinson, fetorneh | home,
eek. :
isa Madeline ike: of Charlotte is
est Of Mise Rachel Hinson; i

PI N EN, IDUB,

arora

Se pit. Py eM re AS ca “Lyles
her MeterseMrs, 9B
Mise Herta,

reville.
ag guest
wrees daughter, of:

em Straup xfnned the ‘firat bele

sisters’ :

“Unelel
i Matthews Fris{

guben, |

vitae de

Fait teats i a

a D. Jonrts, who. ever
in _tobleshearted |:

her acquaintance }.

with mes on that’could be done ta

i} bring wunshine Inte my Weaty, dark

dened }ife ane, did and
heart | Zalned b&

iat you never won my. cane was the
Lo never tele you! tag
but a poor; weak

guided» ha

rooms in her own |:

every
mother or respect’ for home to let my.
misfort unes*be ‘an example. that. they
may (live right’ and: learn a lesson
from my~ end.” Again do I ask you
andthe world not to judge. me for
my folly, for the. Good, Book.-says:
‘Judge. ot that-yé be not judged.’ y
*\ THANKS FRIENDS. |<

. “Tadimire - you,< Mr." Clift,” asta
brother,/als0,4Mr, Bteve and’ Mr.;Jake,,
and omy) Aiki be. and: best. -wishes “are
sees hall meet ‘you in glory where

toate, nor parting.

‘Enot only}
it but syery. white. nals
prisoner n 2

“Mp: Clr, feel as “harry
tree, -although Tam “sitting: are with

away when 7 shal! leave you; bet T
hold you t6 your promise which Was
to: meet’ me there; And ¥ ‘truah I
shall‘one sweet “day. ‘meet “you in:
Paradine. “And I wish (0 clasp | you
‘and «Mr. Jake and Mr. Steve: by the
hand: and -recall this . night upon
4 earth on which f write this and. “bed
gin to make my peace with God.)

“Ask the newspapers to deal gently
with me, ‘especialy The Charlotte
Observer, © which has ‘ever. knocked
me from thé. start, Farewell; every
friend. Bear in mind ‘noné. of my
stories previously told, were true, but
this is my dying, true” confession.
Praying God's infinite *‘metcy. on. my
soul and blessings for my noble pa~
rents, brothers. -and “sister.
welk 24). “CHARLES E, TRULL

postectipt Traut writ ‘Re
that’ all he (Tpull) had ‘said

4 concerning his” case Involving iCleye-

tee eet eck s

5 the true 0 dati

“ink especiatty, Twish him to know

T-have;-thought deeply. ofall letters.
b

‘read daily his’ Httle’ Testament, that
hevin his: ‘noble-hearted © thotghtful-
ness, gave me and it haw brought me
“many “com orting-~ ‘thoughts, always
reverting back tothe services: he once
held In: jail “when jhe. sought me ‘so
earnestly for. my soul's welfare. ‘Also;
Mis: Lenoir, Mr.SpeitomM

f

fr. Walsh, Mr/

Miller,‘ Carter ‘and vally.es ally. feel
indebted to their noble C ita
]

forts.” And “while it was’ appayently
| seed sown in stony +gtound, thank God
on has sprung up and °f ‘feel that, I

ill soon be.tn peace and at home: ‘in

zl bry where I hope'to meet evary one

| of my ‘acquaintances’ and* I beseech.

above call things: that every one! will
remember that Ihave'a noble mother
atid (father and. brothers: and- sisters.
Ana please remember Tam: in no wise
worthy ofthem® and ‘confine afl. re’

| marks to me, If: yoy must’ need Te=~

buke ahyone and: hot im any way

bec TO. CONDITION,
inv) condition,” both
vane es T pave never held. murder
in my, hest against anyone when at
my -Even, if there: wag ever mur-
der in, my heart, thén at’ was not me
but! whiskey. | God's “hand hag been
Taid heavi:y upon me and I. seriously
theught of’ faking my) own life as T
was fully “prepared=to do aes ite ig
recelved a letter: ftom
Fink télling me again. of God
wonderful’ love and J began’to: ay hy
hee and ‘think. © * Now, therefor
confess all. Iblame ‘no one bu raat
and bear sin mind: tt’ was Not-T) but

otto wef the weason -yeaterdy y. }

dotton belonged to’ Lark oH. Robe }
ss Louse “Durant of Clinton, 8.
a Visiting At the bome of) ber:
. Mrs, Wo BL Warwick:

alter Hetmé. who has been ant-
& acutely from some affection ott
rone of the left arm for the past |

days, war carried to the Pras-3
. ~ Wa ett

hy Ying count

rd | 4nd and Smith’ was: a ‘mistake,| and

that. he is humb’y.sorry for: all he
“so weakly told the Governors secre-

Is. taryand alf of it was ‘untrue except.

As, to “his: good’ conduct in jail: and

the fact that he wanted to lay before |
<plaece p
ourt. ij

Governor Craig his appéal. i
‘of |waiting “on. the’ Supreme C
He adds that alt he’ told - Solicitor
Wilson was auntrue.: In’ fact’ that’ he’
never! told any one the~ truth except
Ais spiritual adviser,:Rev: Mr,’ Potter.

He’ pays tribute.to Doctor ‘Wishart!
saying he (Trull) was merely! Work=
‘ing for a collecting agency: that: was
Aand:ing Doctor Wishart'’s acéounts
for collection and ‘that Doctor Wis-
hart’ never gave him dope - and’ als:
Ways urged*him against: all evi} and
Ait bettie ee conduct,» e¥en “smok-
ng.

‘He: quotes a number ot Psalms,
gives advice to friends ‘atid repeats
overjand “over confidence that he has
obtained forgiveness for, his own sins
ris is ready to die.”

"The news that Trull had fone tema
everything. admitting’ his entire guilt
of the murder and,robbery of Sid-
ney Swain. the Mint street merchant,
and completely. absolving Barton, of
alt blame, will be read with extraor- |
dinary ‘interest. heres* That) Trull
wielded thé heavy cast iron pipe with
which hé crushed Sidney Swain to the
|} ground on «that Saturday night in
May, 1914; was believed to be certain
by $9 out. of every 100 citizens of
the county. but there. were some who
felt a hesitancy about the matter in
view of the fact that. every bit of
the - evidence .-was’ circumstantial,
strong though that might be. -Fur-
thermore everybody believed: that the
young man was fabricating story af-
ter’ story about the homicide; hig re-
cent statement seeking to involve an-

other young man in°the crime,” the
condemned man seemingly not fully
realizing his plight. It is - hardly
thought that the: Governor will in-
tervend and, if he does not, according
to custom “in such cases, the exécu-
tion wil} take’ place: early. omorrey
morning. °

Wid CMRP dee»
* Compulsory Schoo 1 Taw.

Montgomery. Ala&.. Sept. 1.—The
lower house of the Alabama Legisla- }
turgAtoday \paseed @ bill which, re-

3 ajtendance of all chiiren
"hehween nd. 15 in institutions of
igarhing for at least 160 days a year.

“hildren whoge “parents are poor
would be granted exemptions provid-
“inle approve.

“end l*
t}S® certain awful end only 4 few hours}

WANTED—Autamutie ‘Foudater

cheap, 00 féeriox or will tre
Grand plant or xeVeral sete Bre
ture and rugs Recher. fare ©

‘Fares 2S

WANTED-—Threw of! fpur’toom
thar ie. referably oadetpaaeld
ha

WANTED—Bhipmeanta’ 6t géot,

ream, to test around 89 per
eatomarket prices paid for butte
Hina Creamery Co.,.43r Fensburo,

WANTED—To buy nice - hom

Y pPiness:section.. Give price, |

testi ae Addroas. Mr... New<
beerVer.

WANTED—To reat ae
from: Oct: I to: Fuly) 1

‘and icohiventent.” Addr

MOR iat de

WANTED—Room with iinedern
\ Tocated “near business: seetion

man.) Addréas X, cath, Observe

WANTED—To do yout work +
except -Sundeyi: Wy G, Jar
Co: Bonen roe

"WORK WANT

FXPERIENCED@ginner and
wants Jobs. Can give refere
“Ginner,* ‘caro Observer.

WANTED—Position as. cashie
work iof any kind. | Can come
mended and have had 7 yrare
perience-in* different branches.
nish bond which can be pag
cee Aoh. Hamiet, No c. ;

FOR REN’

FOR xt ol Baer hy t- room
1290-L

ES SS SE ee Oe
FOR RENT OR LEASE—A v

‘in-Columbes County, North
interested, write Ed''Troy, Ind

cottage, East Seventh stree
front of playground, J, H.

_MISCELLANE

YES—Five and reven-paasen,
hire any time: "Phone 298.

TWELVE-CENT. Cotton, A
'owhy “it's bound to come.

4th Progtessive Farmer, Ra
peewee copy free to any fa

HIGHWAY. CONSTRUCTION-
received at. Dobson, rry
Menday, Sept. 6, at 2 f'clock,
way Comminzstoners of Siloam
Townships, on constructing
townships. under their bord
009 and. $30,900, Poem arertin fi
be required to fie céertand
kum per $500 for each nah)


ere 3)
Woraink
Cleveland

: ae z : is last month © :
ys FS % : “Ep there has been no oF
1) He ihe teetilngl 3 / vance: Domestic trade
ste pe Aree ed normal. Crops are sate
: ¥

ce What from wet westher,

there have’ ine Soulless: duels pnd ; Ee Py Peo The Chicago re
some infantry atticks bug ho gains of re ; :
importance aré recorded, The French
and. Grit sh still are at grip! with: the

ha ns. in-—-Kamerun,Wext-Arries, : sa
The Allied ‘troopsy according to Taina : bs : : Ping 2 moths hdes in iondifioas 3 the
con, are vigorously on the. offensive, : - ; : Louis district are for the eater th
and capturing towns and forcing the i ‘ A + & stil more elearly.” defined. eee

“nde . of ‘confidence. “There is inet
surrender of eh Buin hces of their efvity in generat Dustheas

opponents, bhi: sate Bie BP fae “}- “The Northwest is Hacventl ia" its ‘ote :
Paris announces the captore’ otithe |: - pe ae “i grain erop, Minneapolis. reporte and’

island of Ruad, in the Mediterranean wholesale and \ retail business ts re=.” “J

off the coast of Syria,” < : sponding prompuy to seed re noted

rs ae N
A Berlin semj-officiat a tic: aye 4 important

an AB ed -criiver had‘ fotindered
the coast ~ of) i

Sigs cee
Staite tee

eT

; seach ea of therein ,:
change etrebe i bape erected the Sa
Franctsto—

tress of duitzk,’ which With thése
Dubnoe and Rovus- forms a fovrityert
triangle on Russ’an) territory. oj
north of the Gali¢ian frontier.
captured by the Austriang tod; Ayes ; i a
cording “to ‘the ofeiat ne Poet ; a the Ge ~thodias
Vienna. : h een ying and
i g ie ron fosrian: Sadmits
be Alstro- eink ibe Sirk prvetieh Hy alt “at” Ae Mtatement’ he
een the nos ‘ madp-ta Goternor Craig’a  sienog-
past | rapher last eter k fn ‘effort toCindnice {
separate the sad ‘Agniy retrante, the Governor fovrecensidet his refuial
ing through the Pripet marshes from; to extend: bxecative” Glemency> was |-
that in. Galicia fatke and  declare® that only.“he ist ©
The capture of butsk. hw ver. fe f Pexponsible top the. Sunder And rob ti (Special t> ‘The Observer.

considered. kelly to compel the ik of old nian Sat y: S ‘ Donn eBepe fee y: EB. tind dewdod

sians, déspite the! shecent, Victory) ie THR wt tte nm canfesaian which -
Galicia, to evactaty jthnicdart of Gas} wrote. out Monday ini oa: handed eS gets seen nenters nh ota bate oc
| man Godwin to fill’ the yacancy catised.
Hela still hehkt® b+ thems athe rwise) too tev: Mr. Potter his Afrernnon, ote hy t death ofp t ter Hale at
their Nank yperyi wonld be xértius) Leven more ranibli and d a pe recen x) Ltt gh het hha
teinwit x Hg and digconnecte Fayetteville, 2S
vena thé ‘restsof. the froks Sere Senne made ES, Ube Gost Mr, Godwin has returned here
. bi bie tek hs . mpernor's stenographer, He jmakes ee froma Visit to Fayetteville, and “sata
cept in the: etnter- where the “Tey clears however» that: ‘Rarion. did ti
; said # « ariond.G Nol that Mr> Underwood) was chosen: be-
tons Cont nites, slaw advance the bear Swain or/ have any part or knowl. 1 x h h
{uss ans appedr to abe hblding, Cheir | | eae, of the. robbery.” cause of his great’ service to the party  #
own! They have thi far Preverted ek éontednion's iat ed ie fin, former years, but that it was hard* .
the Gerinane Tram eréesiing ‘the Dv ing) gas shatrehy inne tee Few. to Clit /to'turn down ‘the application of oth
gt Fitedrichstadtowhere o battle haw) gent wind bet ne Bre ment se MY j crs, who: are men of sterling charac-
been in progress FOR ne vera) ays, }, “Pepe vechat 7, cm NA the ter. and »genuine worth to t cause
they, hive arrested the Gh ¥imiin -ofe4 rashiy: didsstide= nga ad of Democracy.” He thinks the ‘recom-<
fenaive beiwetn “that po nt and ‘the | nthe £3! inp vray that: m) Foulen may mendation will meet. with « universitet
Gulf. of Risks and: wut. ae hota: ng}. thacchawer oF that #in, foro have approval.
thelr. grourld'-"netwearrt Kavnis and} eho py Hive at nd humbly repen ‘ed for | Mr. Underwood ia secretary to’ ‘hau
Vilna and. before: Grodin, Wiliougn| 42 I Dawe said, Tt ts. true sonrefatal) State Election: Board, © has beer.’ a
the Germans have aipegiihed the) M™stithes “were made: However, con- | niember of the State See, Com~-
outer position of Grodno tories, | sidering: ever¥things U will) say that ti inittes: and: was. delegate + the
In the opinion of mil'ta writérs | FOU advined Man Tibel'eve, “ur © yow | Baltimore convention. © go +)
here the Russinns now stand “a” ced; thought Bent, Alo, that you -did' not Lions gic SE EE
chance of withing the rie# for the: | WboWw- of, my > gullt--aa, Fo should BAY. 7: “‘nderwood Simmons’ Charce, |
Within a2 few: weeks the Antamn | facta Inany, eave, whatever. | I-did not Vuyetteyition Sept. l:~Speetal.
rans -wiklbeg A and. tH Ia pelted out, | nis Fea an fetter tu Gevernor Craig | 7,
unledathens cay ancteéd jn. eainins a | skeet Peanust AY > VOus acted /bonorably & information”
dectai¥e® renalt Jrefore that timecthe:. Powe t te Ui realty do, not think Tam wag conveyed to this city this after.
Austra-Girmanea etn’ hardly, hayen tol my Coxince hearing that) To was Te-)} noon by means of a telephone mea-
atk Cae Retesiun  iriniok beca tee | tse Merey, i xage from _Congressaian Hook. Gods
pider cemena? the Jone Winter” ms } SHOW: Taha Yeti ret Fou tanta never} win: \
are reformed and releiay’ ppd think, knéw 46r, Pealian tT wth te say Beyond the: announcement no par~
The Thisdiat« according 40 Péptin. ears Lest ty, ‘tor AHL Wave) ticulars as-to when the nominacen
have tush Java gee in ore rere Since. AY a J “pray that Goa Tn have will be made vor the alipointment “bae®
Mat tothe Tah ob wh th the drive: ; T Dave sinned | come ‘effective are xnown Mr, =
begun Ty Wratern Galichi. White tired ag indeed. soa ane man.) Godwin sald that Mr., Underwood was’ J
ind Anuans! alone the ta ptires inetd ru ; Senator Simm :
ed more thaten quarter of a. milite 2 sitlon.. It ta ge
men atid 2.300 cannon, Thy Petes 8 it was Mrp
Coriwa loses. Toa Nave heen heavy: % spite of all Christian | time to leave. ;
in kied and wounled: white: the: bpp trdhing-—which Y received} tor Simmons on account: nt of ah
train on the troofbe hax heen tarr fe,” es y . ¥ yielied
at Nomes led datray. E never did, 2} ator's ba ing
They sift chavg. acearting to Metro. | Bt Ww, intand, to-kilt Mr. Swain, wha
rrideXtimates, about 2 900 690 men} Re 1 t nf 4 i
make 4 the MP front 200 ONO Hetn EVER Gott mucky un mbes tig f
in The Higa region mere than ge al (2 Tovaruely “by evtesg Oe hg

Wentinved on Hage th),

atta, SS
ser


°

. he be Min clak
merce @ ume eerie

an LS i re C= =m

aying. ae ‘€Grel

es God Will ‘he & he. Rene

» endea vor=-

aid me,-et¢c and’ “is@ Your in-

‘Thanks Them ‘For ree

, -s Comnient upon my ease. oy mi Fu-

feat T
Services, In. His a ane
‘ ms wd - .

ah Apparently: thege: pag
fen: eo ‘eee pa when».

Swajn’s Stayer. Expec to Find Peate | |
in That Bourne From Whi ich No
Traveler Has Ever. Ket

ate tell. Serrurice and to
abase himself’ din “confession. as» ¢om=-
Dletely. as possible. f there-is any-
erste ; y | thing else-h “shotid-telt thats 1 have-
“Here are those letters by that aff | Tarts out gd ate gue ee
flicted boy.” Raid “Mr ANION
one of the attorneys “tar Chari a
Trull, under aenfance to Kel electro-
cuted “thig “morting “ar. Raklenetsr’ wrot erof es: ne
the killing’ éf Sidney Swain, an ered}
Charlotte: groter Trulve attoteys
honestly helievene nim utbalanesd, in
addition Sto} he? tedethy “confession, |
published * {ny ier (
there are*ma thy poatseripra to
attorhey Trolls name> etr
Aligned atethe bottom Hf each. Ass
"Mr. CHG! he owrete, wk
you feel -blué or dekslate re
3rd Pealiny “the ° fth: Ten l ms shith.
ISth. 19th, 234,.and 27th lighne avid | bresar at Ww
expeciahy <the fas a R pian | aS y tis being? seriou
huve a copy MASS HF 2 Twos years" time
mal] {¢ ta al’ or ny peoprica allan ai, to;
Iteh oat tally inte 4 the: q th&tinatal ofthe necessary
You rare ta! ys oJ} chinvry Soule sreqistr: .
; ‘ : i : ‘ t enative of = Great}
& i tus a5, to sdincuas
Toit: dayst hx ae tim

eo: last’ page he Sh tea a in ful!

tempted by. the: opportustity
Moffatt ‘esi veuter=

h ow, pits I
Lenk repenti “1 2
Are nit thy The reing Letie tet Pees ¥ ©
tte ool ao Sinn trust fn thee tie ;
Cr WP: greet, Det dont warp Peciications cate foe
The po , * ; < ie
at Oi hy Malas? path euad, He eMeRee ety ince Saameter. |: 2
So let Thy, bardbuing dnve De tend s: Sfantiaee othe ane % ee
£ Pag s Ss wou ve
; bre ed n dey as prob
“Arse sais at

rad totln Fee.

thy Carian fe offers ar Made (te |
iy vieristinn ta th: r : ¢ ar es coe They Will Rave “the children of the | anes trom. the

home as. their guests xt ey eect
eramieal) ra yor Rirky a:

Mr. Sake, ‘a i: 5 avin Uhtoushout thi
Cho ue RIBS ORE San flea UNTnese that j ag thé iat Y
Tomah? Work Lo We ats VOU heart UY ie! rn
ako lrret. ) tree reinver  me® enc fag Kort : m it etin.
tion “for Sine knew si tanare folly thant) antec machtn

those docsters. that oueeety glangra at . aes nee Pant on

ane ane Sit
WCCO D Sache
scrrawtul for Z : ; es z
Sing Aga’ pitaw tied he Vda € : W Digon
UPON FOUL ME epee at renal st ter vbr leredt sore
Mr Marrivon, may our Bable wbi iter moves “poatoits es bullding
ALE Hye he ond of Beeat Rood ode ; ‘onfethe Fite Digs plaeved ‘the
“ at sate fas A ek ¢.t-
soo ty TePEy na ce fnor “Of the» State encamn:
Ss tort a wak? mentor: Contederrnte veterans new In
6 hi tty ei oe Wit js Session Ligon is a Witson APpointee

tre, though: FR Se A ROA ‘bu ahs ep . ; tbat mae,
a i ; eae ‘ 5 ,

400° in keeping down. titer

rd Be pea and Underneath this’

chinmittee 2 Which decbrated the |

pt

‘ghtest Idea of running for. Co

Or any other ~ political offite
Such. was the ~ statement. af, Jobn
Sprunt Hiul.of Durham: when, asked
about the’ rumors thi it was possible:
that he would be in the race against,
Maj.’ Charlés oM. Steadman. ©
“AO seat at Congress on. periodig
easions ‘may sémetimés’ be desirable,
but) a. seat’ in. 2A raglan ‘isa dite)
ferent,” the banker cGontintied -
lieve that I can-do. more
get bettér” rekults. as “a> priv te vciths

+:zen for the measures I. am interested |;

in. that Tocan as Be Congressman: from
‘North Carglina.~ Since $01 vanrs very

much ‘intefested in the jrural. credits, |. -
and.cun always get) a hearing! before ;

} the congressional committées,” hear
ings that ‘some of the. Congressmen
have falled to get. "and am not> es~
pecially anxious to take on the burden
of congressional“ duties, You may set
‘at rest these’ rumors that Ihave any
‘congressional? bee »buzzing © in my.
ears.” ix :.

MEMORI?,

=~ @ "

Booster Pei to Be Made’ bj Salisbury
" ~ Business Men. fi

; (Specla ; 2
Salisbury, Sept. ?.—The" East’ Spen-
heer camp of Woodmen of} the: world
i Will unyell-a “monument ‘in “Chestnut
his cemetery. Sunday. afternoon= at
[the grave of “the. Yate Soveréien!
salen Knéebure. ‘The degree team |
hich will take Ppartsin thesceremony
; WILL Teave ‘immediately. for: Chariot‘e
toventer the encampment of the, de~
«Bree teams from North. Sand South
(Prarolina.. 4 ett f ap
E A mee thie: of husiness. ymens) and t
others was held tonfcht :

pdetinie arrangements LO

tripit fs proposed to p
pthe interest: 6f “the, business” o
city in general and the. Pcople's

helpfnl,

rs Methodists ot: Saltehdiry ty in ware
} stembers WilP visit «che Children’ M

i Hone. at “Winstan-Satem | tomorrow, |

edinner.” ‘The oceasion «

‘picnic of the Sanday=sehool of! the
' First’ Chureh? - i
}, Walter H. Jenkins, tines some-years

a member of the Seuchetn’s machin’ st
forge at Spencer and a prominent of- |

| pardon for th

AT. THE 2A
“Bold Emme
a three-ree) Lat!
at the “Amuse-1
is Onee-ot a se
tt. produced &
pany, on the so
in. the pictur
takes the triple
tor and Jeadin

pqnuch to the

ad excite,
TRe stormy a
ett. tried. in
rom her yoke

A’ stmilar- trip. last" year proved \wery | At, areries

of hedirt-throbs
The. stor¥. tel
ing Nora Doyle
er ‘ot: his
friend * of. then)

plans.. Once,
perately wound
health’ by ebro
shows this) gr:

heur, when the

ticitl of tha Machin iats*’ Union, hay! hung fervattie:

‘dle wen wp his Position and whl take

a three-yea® “Course” (in Vette Finety

s [Ur sery sare H¥eienéiat Washington.
ae

{

BE: AN VER- v \N POOLE,
°
| Poyiilae”tatire dt Ww eds Salisbury
ae Maudic Teacher,
(Special ti The Ovseétver.)
}- Salisbury) Se Wednesday

=fevening at ay Yetloo hare Reine of;
athe. bridets “fs pingse B) r PAN |

pPeate, on -South Elis stteeti oo ms on

ieremany oof Nubile). iviand 4am}

jae RALS STE RA Mase Hilzabethy Van |
. HI Me ata rng ¢ BReave

revolution.’
An-exciting |
of the rope,
neck,» by a frie
daring feat fr:
top, before the
; Melt escapes. t
pe a chimney.
{
{

COMING > T

Aneontire ba
‘and oa bh
i huisitioned’
is, ofhithe Hess
Pat Stiston; for
ey eas tion of Rd
Sitop se she

She Le pr pe


TURNER, L.

(Nged a confirmation.)

"W understand that at the late term of Granville Super-
ior Court, L, Turner, of Halifax (who removed his trial
to Granville) was convicted of the mrder of Capt. Har-
well, and sentenced to be hung. = Messrs. Badger and RaXK
Poindexter for the S ate. = Mr, W. H. Haywood, Jr., for
the Prisoner." REGISTER, Raleigh, NC, 9-20-1836 (3:2,)

Lemuel Turner contirmed executed or 1-6° 1837
per Tarborawh Free Fress, |/14/87 2:3

ik NEW OQOVERNOR’ at
AMUBE-U MONDAY 5) ©

@ geerm ure anticipating © the

ef thie grest pictiife; which

& @2 8.ee00ns to “Tie Birth
Soe gs a World's greatest. pic-

cing #0 great that the mManage-
mcould only secure it for® the

my: 10 Richmord, » Va.’ “The },
Hovernor’” played six: repeated

ments or @ total of seven if.
engagements, au aS &
following figures: and facta
onclusively that no attraction
revjously shown at. thé New
Hippodrome. which has a seat-
pacity of 6,0, ‘beat the record

© Now Governor’ aitracted in

ring the recent run: of “The }-
overnor,” During its ‘six-day mn

__

t given out: Wednesday”

: Sel
confession: the statetit at
wy ontght |.
he -assumed: adle gull” in

murder and robvery ot stapey |.

in Charlotte on. the night. bf |

May 16, 1914) Chaties & Trul went
electric Chair tn the, Btate’s,

6. otk” 4

numberg: 150,000. paid admis: |
and the Box office receipts were |

2.50. atte :
“first. performance at the
a Peg begin promptly. atl0 a

4: — o— A Me
AT EB BROADWAY,
feat of
reel detective
on pena
ng as well as some
This Universal acto a
lf famous through
er parts as no.
oe patenertsite.
bility. especia
uch ag this
dience ‘with

rs.all iin’ one
big juicy program, 99")
—_—~o— ‘ "

EN DREAMS COME: TRUE
t there is unusual! intérest | at<
H to the opening of ‘thé ‘Char-
heatrical seoson. Monday, mat-
nd night, at the’ Academy of

is clearly evident:‘trom ,.the
demand for,\tickets for both

ances ..of. “When. Dreams
True,” the big musical comedy:
8, which has heen selected: by
anagement to ‘start’ the: new
A Of In a blaze of glory. > -)
Star of Wilmington, Del, un-
ate of August 29; gave the fol-
BE siowing account \ of:

s Come True”’’ when |{

ted tt that: cltysi 056 hea
‘When Dreams. Come. True,’

opened the regular jseason. - at’}

ayhouse Jast night is a‘criterion
to*fallow. then: Wil
3 Can expect”

heatrical season. Then. on the
hand if the remarkable) bnai-
Hone last ight by this charming
al play,da.to be accepted by the
gement ag to what-he may ex-
n return for a high class of at-
on then all concerned should be

he magnigcenl... DuPont. Play-
was filled to overflowing and It:
pbable that if a. consensus: of
pn “were taken there would ‘not

rent.< These “muscular disturbances

4 °
emorial Methodist Church,
Statement afterwards
Ned thoroughy penitent
t-thatehe had obtained
“Trult received the, rite

: Have ‘you looked for:

oa

i well worth

fror Potter. Tuesday |.
| and ‘was enro £8 a member of Jen<}.

‘kina “Memorial (/:Church.. “< Then:on
Wednesday he received ‘the commun-
fon service at*the hands’ of. his: pas-

tor...” He turned over to Mr. Potter’
this: morning 4” Bible: that he had |)
‘used during his imprisonment’ and aj ©

Packaxe of letters,- all.of which he

requested the minister to deliver: to ah

his\mother.* (6)
“It was exactly 10:30 °
Trull entéred the ~ death
walking between two: priso ‘
However, headvanced to: the deéth
chair ‘unsupported, while a silénce
pervaded ‘the crowded chamber that
was distinctly oppressive: As‘he ad-
vanced with somewhat unsteady: step
he muttered prayers such’ as .""Lord,’
‘haye mercy on! my: soul ,, and “Lord, |)
less my poor mother,” « ‘

' The straps’ were quickly adjusted
about ‘his body:and limbs and, the sig-
mal given;for thé application of, the
deadly current.*) His indistinct pray:

ies

‘ers Continued after the death. cap had | ~

beef radjusted soverwhis’ head. After
the \applicationvot—thefirst shock of
current 2 Ro Rogers-examiined

*

“ BIG SWEET “TATER" CROP.
% 3 TO met t

Catawba County Expected to Beat
: “200,000 Bushets. bike

- (Special.to The Observer.)
- Newton, Sept. 3.—-What may prove
tobe ‘the largest sweet potato ¢rop
ever Produced in’ Catawba County | is

the body, Heb deiacting what he ‘sald Fa ppromeching maturity and’ new pota-

poh og tae rat ae ga of a mus-
ocular quaver about’ thé. heart, rather
than any real heart beats, he signaled
for another application) of the cur-+

continued >=throug
shocks that Were applied and it waa
only after ‘the fifth application that
Doctor: Rogefs. was satisfied that dife
‘was absolutely

For the electrocution Warden T, P.
Sales was at.the*switch for the'ap-.

‘plication. of :the| death-deaing i Gur

rent.) It) isan! interesting fact; that
the prison dynamo was being operat-
ed for the electrocution by James Wily
Cox, the prisoner from Elizabeth City”
who is serving 30 years:for thé mur

der. of Nell Cr

in’a local cemetery instead ot
havin& the remains carried either to
Charlotte!'or Columbia,” Sper

au AY Oe 2
| MISSIONARY “INSTITUTE. te

Ce EU nn

to’ houses are springitig-up—through-
Out the potato belt, no less than eig

of these being on a singlg route lead-|_
Ang west from. town. mers are
four» separate | making every preparation for housing

and saving an increased yield,
o<The season up to now has been very
favorable; but dry weather is needed
to round .out the crop to. perfection,
The county is supposed to turn out
200,000 bushels and § this year the
prospect {is that the figtres wil) \-go
beyond that. 0 -) 7 ;

‘The growers, especialy those who’

shipped through the co-operative ‘as-.
sociation, made a. good. thing last
year, holding till Spring and reaping

the top of the market at the lowest,

expense of distribution. One farmer
here today has 12 acres in the tubers
and guesses his crép cannot - fall be-
low 2,000. bushels. .As high sa 400
-bushels the acre is sometimes, made?
at & cost of around $25. the ‘acre,
and the price runs anywhere. from

60 cents to $1 a bushel. oN
The Southern» Power Company
closed up two water-tight deals today
on the tawba River, paying to A.
nhunt $637.50 for tights on

The (-pot
/ PEPPERMINT — RED WRAPPER
CINNAMON ~ BLUE WRAPPER

‘Suitable rewards for the discovery of the 1h poins will be offered

ANd seven-tenth acres
County Treasurer W. A
has recetyed from the Stat

check for $1,100.40, the

tomobile tax é¢otlected. |
County.’ Advorates of
road Arous ore ata.
litte andy For ridge
erily ate rd Could ‘cust |
Commissioners wotild -| ex
thar highway, i ;

KILLED BY
Clarence Black> of “Tones
Was Riding Motor
(Special ta The O
Spartanburg §. €., Rep
ence Black, son! of Jame
we)l-ktiown cligen of Jor
instantly, killed this after’
@ o'olock when, while «c
track of the Squthern Ra
a motoreycle at a point a
delow «Jonesville, he w
passerrgtr train No. 41.
whan, 24 years old, was
from Union to Joneaville,
‘count of a curve evident
eee the approaching train
Pieces of the motorcy¢
firat evidence of the
strike the engineer's e
the train was stopped
Was found in a marngte
The dead man's brother,
employe of the Sduthe
Was @ paseehger on the

time:|The body + 1
train .to Jonesville, wher Fs


UPTON, Jesse, white, hanged Greensboro, Ne Ce, on November 8, 1828,

"The case of Jesse Upton, convicted of murdering his wife, at September term 1826
before Judge Joseph Daniel, shows that less than a hundred years ago learned lawyers
allowed superstition of the rankest kind to creep into the law courts, Upton's
case came from Randolph, where he could not get a fair trial, Frederick Nash was
counsel fot the accused, Upton was promptly convicted and prayed for a new trial
on these grounds: 'Thirdly. The defendant's cousel offered the Almanack to show
what time the moon fulled and changed. The court stated to counsel in the hearing
of the jury that it was laid down by modern authors that the moon had no influence
upon the system in producing or increasing mental derangement and that the ancient
doctrine was deemed a superstition, But the court let the counsel introduce the
Almanack and examined two physicians as to their opinien what effect the moon had
on the human system in increasing or affecting a derangement of the mind. The
counsel remarked fully on this testimony to the jury. The court when it came to
¥% charge the jury gave no opinion upon the effect of this S#Xa&WaE evidence,!

"The Supreme Court gave Upton a new trial and his case was removed to Guilford,
From Hone We Ce Hammer we learned that Upton was convicted and hanged in Guilford
County. So it was KKK that neither the moon nor removal to three counties saved
this guilty man, though many people believed him insane at the time," CENTENNIAL
HISTORY OF DAVIDSON COUNTY NORTH CAROLINA, by Rev. Jacob Calvin Leonard, DeDe;
HAYTER Raleigh: Edwards & Broughton Company, 1927; pp XXBXKKKX 153-15).

"Hillsborough, NC, Oct. 29, 1828=At the Superior Court of Guilford county, held last
week, Jesse Upton, who has twice been convicted of the murder of his wife, and as
often delayed the sentence of the law by appeal to the Supreme Court, was ordered to
be executed on Friday, the 7th of November next." COURIER, Charleston,SC, Nov. h,

1828 (2/3.})

"About twelve months since, Jesse Upton, of Randolph County, in this State, killed
his wife and immediately fled = thus, eluding, for a whilte, the pursuit of justice,
It was not known what had become of him until about weeks since; = some travellers
to Tennessee from that section of our State, accidentally discovered the murderer
ploughing near the road, He was immediately arrested, and carried to Knoxville,
where he is now in prison, = RALEIGH REGISTER, 25th inst,"

COURIER, Charleston, SC, )-29-1826 (2:6.)

"PUBLIC EXECUTIONS. = Every day's experience bears evidence to the mischtevous tendency
of public executions of human beings. The New York Lecislature is about passing a law,
or has already done so, to do away with public hangings. It is to be the duty of the
Sheriffs to conduct all executions of malefactors in as private a manner as practicable «
within some yard, or enclosure, We should be pleased to see such a law enacted in North
Carolina = and, indeed, in every State in the Union, A flood of vice and crime would, in
our humble opinion, be thereby stayed, At the execution of Jesse Upton, in Creensborouch
on the 7th ult, for the murder of his wife in Randolph, a great concourse of people
attendeds and, as usual on such occasions, we presume there was much levity, revelling,
and tippling, for a man by the name of Nath'l, Small was accidentally killed #% among

the crowd, Thus it frequently turns out, that the condemed culprit is not the only
person whose life is forfeited, to comlete the scene of a PUBLIC EXECUTION! - WEST.

CARO," REGISTER, Raleigh, NC, January 16, 1829 {3:5.)

"Jesse Upton was tried last week at the Superior Court for the County of Tavidson,
Judge Daniel, presiding, he was found guilty. Sentence was suspended until next
court. Some time since Upton mrdered his wife in Randolph county and absconded to
Tennessee, where he was apprehended and brought back to Randolph, His trial was
removed to Davidson, where there is no doubt he has received justice," REGISTER
AND NORTH CAROLINA GAZETTE, Raleigh, NC, October 20, 1826 (173)

XE "About twelve months since, JESSE UPTON, of Randolph County, in this State, killed his
wife, and immediately fled - thus eluding, for a while, the pursuit of Justice,
It was not known what had become of M& him until about three weeks since, some travellers
to T nnessee, from that section of our S;,ate, accidentally discovered the murderer
ploughing near the road, He was immediately arrested and carried to Knoxville,
eis Pete prison." REGISTER & NORTH CAROLINA GAZETTE, Raleigh, North Carolina,
2 Jan sl.

N.C 25 SOUTH EASTERN REPORTER, 2d SERIES
194 G. “0s =
i i iberty fuse to answer any questions,
ather-in- liberty to re re
eS e Staf- and that such refusal could not thérea {ter
“both be used to his prejudice, it is enough tv:
the provisions of C.S. § 4561 are app ica-
ble only to preliminary judicial ae
tions. State v. Grier, 203 N.C. 586, 166
S.E. 595. Here, the questioning of —
fendant was not in a judicial prosee g
father-in-law before the latter was shot. aegis at AE ee hire
Lat Sees that night, the defendant told NC 106. cited and relicd upon by the
8 i ‘ : .C, 106, cit em Pooh
the officers, one of whom was the coroner tc (eRe, CE. McNabb - United si Hes,
of the county, “I went down there to kill 63 S.Ct. 608, 87 L.Ed. —, decided aa
them and that is what I done on gt “4 1, 1943.

i gret ¢ it, that I didn .
ait fag i eae ee [2] Second, as to the alleged drunken-
Oe ee oss » defendant when the confessions

On the trial, the defendant ppt eG ness pin ti se ee Ee ae ion
i in sclf-de- were ¢ ; allens
at he s is father-in-law in sclf-de- were Sraperes
ae Ca . i sister-in-law was ac- to have been made on ae ero ee
scRee, “ey “ey Ile stated that he did not © true, the defendant eS eee ease
eaeeny 5 ocean the crime and that was drunk when preston le ta
aire ET ‘ a: rag made while he which the officers denied, fessions or
Lp aha i ae no request to strike out the confessions
to withdraw them from the comniers
of the jury, as was done in the ete
State v. Anderson, 208 N.C. 771, 182 S.E.
643.

went into the room whe
law and his wife's sister, Annie Le
ford, were and opened fire, killing
of them.

There is evidence that the deme =
ceased was shot first, and that a abi
ensued between the defendant and his

was drunk.
Verdicts: In No. 2326 wherein the 7
fendant is charged with the murder ©
Annie Lee Staiford, “Guilty of murder in
. : : ”
the second degree. ; os
ae : T tency of an_ allege
In No. 2326A wherein the defendant 1s [3,41 The competency n cd
! rig l \ ith the murder of W. A. Godwin, confession is a preliminary hag C
CN sae obey Rit dna tancege. 2? “ial court, State v. Andrew, 61 N.C.
“Guilty of murder in the first degree. the trial court, ee vee ad bade “cei
lg t In No. 2326, imprisonment 205, to be determined 1 npener paint
rments : No. 2326, n he determined th pa
i tt ae te’s prison for a_ period of 30°) ed out in State v. Whitener, a ” il
: ate s : ? tt) As ming
ae ae. oh run concurrently with any 132 S.1. 603, and the court’s ns of sat
nie ; i ricwable appeal, unless ac-
As ets i tence and not to postpone of 4s not reviewable on pps Me spd
other sente ‘nce of death in the other companied by some imputed ¢ Saas
fosaaten te or legal inference. State v. Manning, ¢¢
N.C. 70, 18 S..2d 821.

alfect
case consolidated herewith. he
No. 2326A, death by asphyxtation, a
Mee ce appeals, assigning errors, [5-7] It is to be neti a nln
? ‘Mullan, Atty. Gen., and are not assailed for invo isnt et Se
gist Ing eta ches Rhodes, Jess challenged, the voluntariness 0: a | re:
Be ee ae fession will be taken for granted”. State
v. Wagstaff, 219 N.C. 15, 12 S.E.2d $5,
659. A free and voluntary cointessiog. ae
one guilty of a crime affords ee 0
the highest credibility and usually es
(1) character which may be casily vores i
the other hand, open and frank responses
by innocent persons arrested under mis-

George eS
Asst. Attys. Gen., for the State.

A. A. Tarlton, of Charlotte, and J. F,
Sossomon, of Concord, for defendant.

STACY, Chief Justice. a
We have here for determination,
the competency or admissibility in eae
of certain alleged confessions, and (2) the
correctness of the charge. ;
The testimony of the officers, gece: ben
a oes i a Aad i acie V ary and admissible im
to statements made rs: < is challenged on prima facie voluntary cas Dab Seto
ly after the homicides, 1s i te Feciikaick evidence, unless the party ag st nig
Eacwrschie hie 1 ts they are offered allege and show 5 a au
: ’ fere ~ » con-
riz 3 ‘yal inference to the
ired by CS. § 4501, and, second, yang rie econ
ae . fe ole S . S339 ; St: ; ‘
He thee the statements were made by the nbd = te ae ,
; c IN... Oy “a.
fendi hile he was drunk. 8 ae
wate The exceptions in respect of the ruling
on evidence are not sustained.

ae 3 aids
apprehension are generally powerful aid
in securing their prompt discharge from
custody. “Confessions are to be taken as

, s, first
two grounds, st, ™ reais
was not cautioned or advised of his rig

[1] First, in respect of the failure to
inform the defendant that he was at

STATE v. UTLEY

25 S.E.2d 195
[8-11] We now turn to the defendant’s He was reaching for the gun barrel when
principal exception or the one upon which I shot him. * -* * Mrs. Stafford was
‘he chiefly relies. In charging the jury, the shot sometime during the wrestle, a few

court used this expression: “* * * and if seconds after her daddy got hold of the
you find that in shooting and killing the de- gun”,

ceased Godwin he did so with premeditation
and deliberation, that would constitute mur- [12] The defendant admitted on cross-
der in the first degree”, The vice in this in- €Xamination that he had been indicted 12
struction, so the defendant contends, is OF 15 times, and that he had served three
that it incorrectly states the intensity of road Sentences, one for whiskey, one for as-
proof required to show the elements of pre- saulting his wife and the last for manu-
meditation and deliberation in a capital facturing whiskey. “I haven't missed 2
case. If the instruction stood alone, there “@y for the last six months drinking”.
might be substance to the eXception. How- However, it was not contended that the
ever, it appears from a reading of the defendant was drunk at the time of the
charge in its entirety, that the court prop- Shooting. He says he took several drinks
erly instructed the jury in respect of the after the shooting and was drunk when
burden of proof, and repeated the instruc- he made the statements to the officers
tion several times: ‘The TT ARE ARS beit the officers failed to detect any drunk-
quired to prove the case in all of its ele- ©" condition. The case presented was
ments “beyond a reasonable doubt’, the largely one of fact determinable alone by
degree of proof required in a criminal pros- the trial court and the jury.
ccution. State vy. Schoolfield, 184 N.C. 721,
Il4 S.E. 466. The quantum of proof was
correctly stated in a number of instances,
“An exception of this sort must be consid-
ered in connection with the entire charge,
and is not to be determined by detaching
clauses from. their appropriate setting”,
Adams, J., in State vy. Ellis, 203 N.C. 836,
167 S.E. 67, 68. The charge is to be con-
strued contextually. State v. Lee, 192 N.C,
225, 134 S.E. 458. So interpreted, the pres-
ent charge appears to be free from success-
ful challenge. State y, Smith, 221 N.C.
400, 20 S.E.2d 360.

, al-

No reversible error has been made to.
appear, hence the verdicts and judgments
will be allowed to stand,

No error.

KEY NUMBER SYSTEM

°
aume

223 N.C. 39
STATE v, UTLEY,

The remaining exceptions are equally No. 361

Tesolvable in favor of upholding the trial,
a course we are enjoined to pursue in bal-
ancing the scales between the State and
the individual.

Supreme Court of North Carolina.
April 14, 1943,

aa ; ; f. Criminal taw C>662(1
The jury rejected the defendant's plea ¥

N.C. 195

of self-defense, which was mildly supported
by the defendant, and strongly contradicted
by the State’s case. After arming ‘him-
self with a gun, the defendant says, “I
went over there to run him off”, meaning
that he went with a gun to run his father-
in-law away from his home. This was in
the middle of the night, about 2 a.m. The
deceased was in bed at the time. Defend-
ant says: “I woke him up and told him
to get up and get his clothes on, he was
fetting out of there. When I called him
he kinder raised up off his pillow on his
elbows, * * * He scooped the covers
all at once and came after Ney > * es

Defendant’s constitutional right of
“controntation” carries with it, not only
right to face his accusers and witnesses
against him with other testimony, but op-
portunity fairly to present his defense, and
such right, observed according to form, but
at variance with substance, is right denied.
Const. art. 1, § 11.

See Words and Phrases,

Kdition, for all other
“Confrontation”,

Permanent
definitions of

2. Criminal law ©=577

A reasonable time for preparation of

defendant’s case should be allowed counsel
appointed by court to defend him.

*EN6T“8E-9 (Azouesquoy) GSon *xtydse ‘72 SyoeTq fsower ‘ITTIN

OL?

L?

YY

t-te, CF Eee

FeSi
wt wee

AY

zee


halide hedtees nde baat eae kekek er a oe

198 N.C. 25 SOUTH EASTERN REPORTER, 2d SERIES

after he was stabbed * * *. Collins did
not attempt to do anything to James, and I
did not sce Collins have any weapon. When
James stabbed his wife * * * she had
no weapon and I heard him say nothing
prior to time he stabbed her * * *. I
was standing between J. T. and Cora Lee
and saw James when he struck at J. T.
J. T. had nothing in his hand; I could have
seen it if he had had one.”
Cc. A. Campbell, also witness for State,
_ gave this narrative of the occurrence: “T
saw James walking in the field * * *.
James said ‘You are picking peaches?’ I
said ‘Yes’. He said, ‘They are right pretty’.
I said ‘Yes’. Tle said ‘What kind art they?’
I said, ‘EIbertas’. I was very close to him
at the time. Some one asked him if he
did not want a job. He said, ‘No, there
isn’t enough of them for me’. Cora Lee
came running around me and James ran
against me running. I said, ‘ere, don’t
do that, don’t do that’.. She ran in front of
me and stumbled and fell face foremost.
She rolled over right quick and he ran and
dropped down on her with his knee on her
and stabbed her one time through the right
arm, and then *-* * T saw him stab
her five times. J. T. ran around there and
grabbed up a peach basket with about a
gallon of peaches and hit James with it, and
James jumped up and. said, ‘L will finish
yow. They ran out 18 feet away and J.
T. grabbed a peach limb off a dead peach
tree and struck at James. At this time my
son-in-law came by on a pick-up and J.T.
caught the back end and went off. James
ran the pick-up down the field 35 or 40
yards and then he turned around and came
walking back to where I was. standing.
‘Cap, Lam sorry I done it, but I had to do
it’, he said, ‘Those damn Collins’ have been
running over me for the last ten years’. I
said, ‘James, you have done the wrong
thing’. He said, ‘Do you know where I
can get the law?’ T said, ‘They will be here
in a few minutes’, Ile said, ‘ET will walk
on down and wait for them’. Tle said, ‘If
she ain’t dead, | will finish her’. I said,
‘James you have done plenty’. * * *
I didm’t see what occurred between J. T.
and James before he got to his wife. I
had my back to them, and I did not hear
anything at all except what James said to
me * * *, James was arrested about
500 yards from where the killing took place.
So far as I know he made no effort to get
away.”

Sheriff Bruton, who arrested defendant,
described the wounds on the body of Cora
Lee Utley as “one at the shoulder, three
cuts in the right arm, one right above the
hip, two stabs in the back a little to the right
of the back bone that were to the hollow
4 he seven-~F ) *— altgwether,, aod
those on the body of J. T. Collins, as “one
cut across the stomach about 6 inches long
that went to the hollow”; and “a stab
wound on the right side of the stomach; it
went to the heart. They appeared to have
been made with a knife.”

On the other hand, defendant, after testi-
fying that he married Cora Lee Collins in
1934, that he had been assaulted and threat-
ened by J. T. Collins on several occasions;
and that on the night before the homicide
he upbraided his wife for her conduct with
aman, whom he saw that night but did not
know, related this story of happenings on
the night before and at the time of the hom-
icide: “IT shaved and went back to my wife’s
father’s house. They were all sitting on the
porch. When I sat down on the porch, J. T.
got up and went through the house and
asked what was that I put in the water
bucket. I told him T hadn't been in the
house. J. T. had a double-barrel gun and ]
told him I had not been in the house. I was
pleading for my life, and his sister told him
that I had not been in the house and was
pleading for my life. His sister took it away
from him and later on that night they went
to bed. I stayed on the porch until about 3

Vo’clock. J. T. took the gun in the room

with him and slept with it across his bed.
I was frightened and did not sleep. The
next morning my wife asked me to come
to the peach farm where she was so that
we might talk this thing over, and the next
morning I went to the peach orchard
where they were. I admit being afraid of
J. T. I went there with the intention of
apologizing to J. T. and to get my wife so
that we could live together. I didn’t go
there with the intention to kill or hurt any-
body. Thad never had thatin mind * *.
When I got to the farm J. T. asked me if
I wanted a job. I told him there was not
enough to pick. I said: ‘J. T., I come to
apologize to you about drawing a gun on
me’. Ile said, “Tonight you won't only get
it drawn on you, you wilt get shot’. 1
was afraid of him, to tell you the truth
about it. I grabbed him with this hand
(indicating). He ran his right hand in his
pocket and made a swipe at my neck with

STATE y.

25.8.E.2d 195

a knife. I grabbed his hand and he split
my-finger * * *, When he cut me on
the finger, I cut him. When I looked
around, my wife was coming at me with a
peach bag drawing back like that (in-
dicating). I do not know whether she
meant to hit me or not. At that time I
guess I was a little madder than I should
have been. I don’t know how many times
I cut her,—and then I went on down the
road and sat down. I went * * * and
got a cloth and wrapped my thumb up.”
Then on cross-examination, deféndant con-
tinued: “TIT have been cooking * * *
in Greensboro. * * *, I came back with
the intention to take my wife. Me and my
wife had a big argument the night before
and T slept across the bed. She left the
house about 8 o’clock and I left * * *
about 10 o'clock. She didn’t strike me with
anything, but when I turned around, she
was in arm’s reach with a peach bag
drawed back * * *, JI got the knife
on the porch at Robert Collins’ (father of
Cora Lee, at whose home he had spent
the night) * * *, I was not drinking.
[ am right-handed and the only wound
J. T. inflicted on me was a nip on my left
thumb. When I grabbed J. T. in the breast
he ran his hand in his right-hand pocket
and had a switch-blade knife and made a
sweep at me, I took this hand and blocked
the knife. J. T. weighed about 160 pounds
* * *- T weigh 190 pounds. I am about
6 feet 2 inches tall and J. T. was about 5
fect 10 inches.”

Sheriff Bruton, recalled as witness for
defendant, stated: “At the time I took
the defendant in custody he had a cut on
his hand. I brought him to Troy and got
Dr, Harris to fix it up”, and defendant
testified that “Dr. Tarris put four stitches
mat’.

When the case was called for trial it
appeared that defendant had issued sub-
Poenas to Hloke County for two men, and
to Scotland County for another, by whom
he proposed to show his good character,
and a subpoena to Scotland County for Ben
Leach “who would be offered for the pur-
Pose of showing threats made for this de-
tendant’s life by J. T. Collins, one of the
deceased, and also to corroborate the de-
fendant's testimony that defendant on one
“ccasion came to Ben Leach’s home stating
that he wanted to spend some time and get
away from J. T. Collins, who was threaten-
inv to kill him’. Whereupon,.the Solicitor
Stated that he would admit the witnesses,

UTLEY N.C. 199

if present, would testify that the defend-
ant’s characer was good, and that Ben
Leach, if present, would testify in corrob-
oration with the defendant’s statement,
“without admitting the truth of any state-
ment made by any other witness”. There-
upon, it appearing that subpoenas were
issued for the witnesses referred to a week
before the date of trial, and that the de-
fendant had been in custody since July
24th, the court declined to grant a con-
tinuance. Exception No. 1 by defendant.
And before the close of defendant's case,
the court specifically and in detail instruc-
ted the jury in accordance with the agree-
ment of the solicitor,—that the jury should
consider that the witnesses had so testified,
and that the jury should consider same as
evidence for defendant just as if the wit-
nesses had been present and testified in
court. This constitutes defendant's Ex-
ception No. 4.

Verdict: “That the defendant is guilty
of murder in the first degree in both
counts”.

Judgment: In case in which defendant
was “indicted, tried and convicted * *
of the murder in the first degree of one
Carrie Lee Utley”: Death by asphyxia-
tion.

In case in which defendant was “in-
dicted, tried and convicted * * * of
the murder in the first degree of one He
Collins’: Death by asphyxiation.

Defendant appeals therefrom to Supreme
Court, and assigns error.

Marry M. McMullan, Atty. Gen., and
George B. Patton and Hughes J. Rhodes,
Assts. Attys. Gen., for the State.

Bradley Welfare, Jr., of Troy, and Mal-
colm McQueen, of Fayetteville, for de-
fendant-appellant.

WINBORNE, Justice.

Careful consideration of the several ex-
ceplive assignments, upon which defendant
relics on this appeal, fails to show cause
for disturbing the judgments in the trial
below.

[1-3] The first asssignment relating to
the refusal of the court to grant motion
for continuance on account of absence of
material witnesses, and the fourth relating
to the court stating to the jury the agree-
ment that the jury should consider as evi-
dence what the absent witnesses would
testify, if present at the trial, may be con-

é

¥

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a

ia


200 N.C,

sidered together. Defendant contends that
although generally the matter of a continu-
ance is addressed to the sound diserction of
the court, the refusal of continuance in this
case denied to him his constitutional right
in a criminal prosecution to be informed of
the accusation against him and to confront
his accusers and witnesses with other testi-
mony. North Carolina Constitution Article
I, Section 11. Ile relies upon State v.
Whitficld, 206 N.C. 696, 175 S.E. 93;
Whitficld v. State, 293 U.S. 556, 55 S.Ct.
144, 79 L.Ed, 658, where denial of petition
for writ of certiorari is recorded, of which
netation appears in 207 N.C. 878. In that
case it is stated that [206 N.C. 696, 175
SE. 94] “the rule undoubtedly is, that the
tight of confrontation carries with it,
not only the right to face one’s ‘accusers
and witnesses with other testimony’ (Sec-
tion 11, Declaration of Rights, Const.), but
also the opportunity fairly to present one's
defense * * *3" that “a right observed
according to form, but at variance with
substance, is a right denied”, citing cases,
among others Powell v. Alabama, 287 U.S.
45, 53: SCte295 2.77 “L.Ed 1582-84 ALR.
527; and “that a reasonable time for the
preparation of a defendant's case should be
allowed counsel appointed by the court to
defend him commends itself, not only as
a rule of reason, but also as a rule of law,
and is so established by the decisions”,
But, continuing, the court there said: “On
the other hand, it is equally well established
in this jurisdiction that a motion for a
continuance is addressed to the sound dis-
erection of the trial court, and _ its ruling
thereon is not subject to review on appeal,
except in case of manifest abuse”, citing
State v. Lea, 203 N.C. 13, 164 S.E. 737,
State v. Banks, 204 N.C. 233, 167 S.I-. 851,
and other cases,

[4] Applying these priniciples to the
case in hand, we cannot say, as a matter of
law, that, in denying the motion for con-
tinuance, the court took from defendant
his constitutional right of confrontation.
To the contrary it appears that the court,
through the agreement of the solicitor,
went far in giving defendant the benefit
of what the absent witnesses would have
testified if present. In absence of a clear
showing of error, the exception must be
overruled, See State v. Whitfield, supra,
and cases cited.

[5] Ixception is taken to the ruling of
the court in sustaining objection by State

25 SOUTH EASTERN REPORTER, 2d SERIES

to this question asked the witness Ross:
“Did you ever hear J. T. Collins threaten
the life of the defendant?” If this ques-
tion were proper, the record fails to show
what the witness would have answered.
Ilenee, the ruling of the court must be sus-
tained, as no error is shown. State v.
Thomas. 220 N.C. 34, 16 S.12.2d 399, and
numerous other cases.

Other assignments relate to the charge.

The court, in defining murder in the first
degree, murder in the second degree, and
mansliughter, instructed the jury that “it
is the law of this State, * * * that
where one admits or it is proven that he
has killed another with a deadly weapon,
then that raises a presumption of murder
in the second degree, that is, it raises a pre-
sumption that one has killed unlawfully and
that it was done with malice, and from
there on, to create murder in the first de-
gree, the State must establish premedita-
tion and deliberation. To create man-
slaughter, the defendant, not the State, has
the burden of showing that there was no
malice, in which event it is reduced to man-
slaughter; and if he would be entirely ab-
solved, he must go further and establish
that the killing was not unlawful, that is,
that it was done in self-defense”.

[6] Defendant challenges the correct-
ness of the last sentence of this instruction,
that is, the sentence beginning with the
words “To create manslaughter”, contend-
ing that under the law defendant has no
euch burden, and citing as authority the
case of State v. Howell, 218 N.C. 280, 10
S.E.2d 815. The Tlowell case is distin-
guishable from case in hand in factual
situation. There the defendant, upon being
arraigned, entered a plea of not guilty, and
did not testify in his own behalf or offer
any other witness. The law as discussed
there must be read in the light of the facts
in that case. “The law discussed in any
opinion is set within the framework of the
facts of that particular case”. Barnhill, [.,
in Nantahala PL & Light Co. v. Moss, 220
N.C, 200,17 S.1.2d 10, 16. In the present
case, while he pleaded not guilty, defend-
ant testifted in his own behalf and stated
that when J. T. Collins ‘‘cut me on the fin-
ger, I cut him’, and that “when I looked
around my wife was coming at me with a
peach bag, drawing back like that * * *,
At that time I guess I was a little madder
than L should have been. I don’t know how
many times I cut her.” Moreover, it is not

STATE vy.

contended that J. T. Collins and the wife
of defendant did not die as result of. the
wounds intentionally inflicted by defendant
with a butcher knife; nor is there any
contention that the deaths were accidental.
On the contrary, defendant pleads self-de-
fense.

[7-11] Murder in the first degree is the
unlawful killing of a human being with mal-
ice and with premeditation and deliberation.
Murder in the second degrce is the unlaw-
ful killing of a human being with malice,
but without premeditation and deliberation.
Manslaughter is the unlawful killing of a
human being without malice and without
premeditation and deliberation. These defi-
nitions of murder in the first degree, mur-
der in the second degrce and manslaughter
are too firmly imbedded in the law to re-
quire citation of authority. Moreover, the
law is well established in this State that the
intentional killing of a human being with a
deadly weapon implies matice, and, if noth-
ing else appears, constitutes murder in the
second degree. And when this implication
is raised by an admission or proof of the
fact of an intentional killing, the burden is
on the defendant to show to the satisfaction
of the jury facts and circumstances suffi-
cient to reduce the homicide to manslaugh-
ter or to excuse it. State v. Capps, 134 N.
C. 622, 46 S.E. 730; State v. Quick, 150 N.
C. 820, 64 S.E. 168; State v, Benson, 183
N.C. 795, 111 S.F. 869; State v. Gregory,
203 N.C. 528, 166 S.E. 387; State v. Keaton,
206 N.C. 682, 175 S.E. 296; State v. Ter-
rell, 212 N.C. 145, 193 S.E. 161; State v.
Robinson, 188 N.C. 784, 125 S.E. 617;
State vy. Mosley, 213 N.C. 304, 195 S.E. 830;
State v. Debnam, 222 N.C, 266, 22 S.E.2d
562.

[12] In the Keaton case, supra [206 N.
C. 682, 175 S.E. 298], the rule is stated in
this manner: “If a defendant who has in-
tentionally killed another with a deadly
Weapon would rebut the presumption aris-
mg from such showing or admission, he
Must establish to the satisfaction of the
jury * * * the legal provocation
which will take from the crime the element
of malice and thus reduce it to manslaugh-
ter, or which will excuse it altogether on
the ground of self-defense, unavoidable ac-
cident, or misadventure”,

[13-15] Therefore, when in the light of
these principles, applied to the facts in the
Present case, that portion of the charge to

25 8.E.2d—13%

UTLEY N.C. 901

25 S.p.2d 195

which the exception relates, is read in con-
nection with that which immediately pre-
cedes, there is no error. “An exception of
this sort must be considered in connection
with the entire charge, and is not to be de-
termined by detaching clauses from their
appropriate setting”, Adams, J., in State v.
Ellis, 203 N.C. 836, 167 S.E. 67, 68. “The
charge is to be construed contextually”,
Stacy, C. J., in State v. Grass, citing State
v. Lee, 192-N.C, 225, 134 S.E.-458.

Applying this principle to the present
case it is true that, in that portion of the
charge immediately preceding that to which
the exception is directed, the word “inten-
tionally” does not appear before the word
“killed” in the clause “that where one ad-
mits or it is proven that he has killed an-
other with a deadly weapon”, upon which
the presumption of murder in the second
degree arises. But, as the correctness of
the portion to which exception is taken is
predicated upon that which precedes, that
which precedes must be a correct charge.
Nevertheless, as it is not here contended
that the deaths of the deceased persons
were accidental, and as defendant admits
the cutting and resultant deaths, and pleads
self-defense, that the cutting was inten-
tional is apparent, and, hence, there is no
error, State v. Debnam, supra, for which
a new trial can be ordered.

There are other exceptions to excerpts
from the charge, which standing alone may
be subject to challenge, but, as in the fore-
going, when severally read in connection
with the portion of the charge immediately
preceding, or immediately following, cach,
as the case may be, that is, construed con-
textually, they are free from error. To
treat them seriatim would be mere repeti-
tion.

[16] It is proper to point out, however,
that, while no objection is taken, and no
exception is directed thercto, a discrepancy
appears upon the face of the record. In
case No. 731 defendant is charged with the
murder of one Cora Lee Utley, and the
judgment in that case reads “James Utley,
you have been indicted, tried and convict-
ed by a jury of your county of the murder
in the first degree of one Carrie Lee Utley,”
ete. Nevertheless, the evidence in the rec-
ord shows that the real name of the mur-
dered woman, wife of defendant, is Cora
Lee Utley as named in the indictment.
Furthermore, the record shows that. the

«

“

SMO. CF Le

Siar

is pape: » i

hai aise

202 N.C.
court, in its charge to the jury, referring to
the indictment and to the evidence, gives
her name as Cora Lee Utley. And the ver-
dict of the jury is “that the defendant is
guilty of murder in the first degree in both
counts”,—one of the counts being the
charge of the murder of one Cora Lee Ut-
ley. Manifestly, there is no uncertainty
in the identity of the person. ‘Therefore,
the name as used in the judgment comes

within the rule of idem sonans and is not a

fatal variance. For cases in which, upon
identity being established, the principle has
been applicd in this State see State v. Up-
ton, 12 N.C. 513, “Anne” and “Anny”;
State v. Patterson, 24 N.C. 346, 38 Am.Dee.
699, “Deadema” and “Diadema”; State v.
Houser, 44 N.C. 410, “William Michaels”
and William H. Michal”; State v. John-
son, 67 N.C. 55, “Susan”, “Susanna” and
“Susie”; State v. Lane, 80 N.C. 407, “J.
B. Runkins” and “J. B. Rankin”, and
“Dulks & Helker” and “Helker & Duts;”
State v. Covington, 94 N.C. 913, 55 Am.
Rep. 650, “Hawood” and “Iaywood”;
State v. Hare, 95 N.C. 682, “Willis Fain”
and “Willic Fanes”; State v. Collins, 115
N.C. 716, 20 S.E. 452, “Major Vass” and
“Major Vase”; State v. Hester, 122 N.C.
1047, 29 S.E. 380, “Thomas R. Robertson”
and “Thomas Robertson”; State v. Drake-
ford, 162 N.C. 667, 78 S.E. 308, “Lila
Hatcher” and “Liza Ilatcher”’; State v.
Chambers, 180 N.C. 705, 104 S.E. 670, mis-
spelling of Tolbert; State v. Donnell, 202
N.C. 782; 164 S.E. 352, “R. B. Andrews”
and “R. B. Andrew”; State v. Whitley, 208
N.C. 661, 182 S.E. 338, “Cannon Mills Com-
pany” and “Cannon Mills”; State v.
Dingle, 209 N.C. 293, 183 S.E. 376, “Gernic
Williams” and “Germie Williams”; State
v. Reynolds, 212 N.C. 37, 192 S.E. 871,
“Oakes Clement” and Okes Clement”;
State v. Vincent, 222 N.C. 543, 23 S.E.2d
832, “Vincent” and “Vinson”,

[17] The setting under which the homi-
cides were committed, as revealed by the
evidence, lends little if any support to de-
fendant’s plea of self-defense. Yet the
court fairly presented the question, and
gave to defendant full benefit of the prin-
ciple. The jury, however, were not satis-
fied, and rejected the plea. Moreover,
there is strong evidence to support the ver-
dicts of murder in the first degree. No re-
versible error appears on this record,
Il[ence, in the judgments below we find no
error,

25 SOUTH EASTERN REPORTER, 2d SERIES

223 N.C. 49
GENERAL AMERICAN LIFE INS. CO. y,

STADIEM et al.
No. 377.

Supreme Court of North Carolina,
April 14, 1943,

1. Pleading C189, 214(5, 8)

The office of a “demurrer” is to test the
sufficiency of the pleadings, admitting for
the purpose the truth of factual averments
well stated and such relevant inferences as
may be deduced therefrom, but it docs not
admit any Icgal inferences or conclusions
of law asserted by the pleader. CS. § 511,
subd. 6.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Demurrer”’,

2. Banks and banking €>140(3)
Pleading ©=8(5)

In action in contract to recover the
face amount of a check which defendant
bank had refused to honor, allegations of
complaint that bank was indebted to plain-
tiff in the face amount of the check was a
mere “conclusion”, and in absence of ac-
ceptance or agreement to pay the check, the
bank assumed no liability to plaintiff. C.S.
§ 511, subd. 6.

Seo Words and Vhrases, Permanent

Edition, for all other definitions of
“Conclusion”,

3,"Banks and banking >140(1)
Bank’s agreement with depositor im-
plics no agreement with the holder of a
check and being liable to the drawer to ac-
count for failure to honor the check, the
bank cannot be held at the same time liable

to the holder of the check. C.S. § 3171.

4. Banks and banking =140(1)

The payee of a check unaccepted can-
not maintain an action on it against. the
bank on which it is drawn. C.S. § 3171.

5. Banks and banking C=140(1)

Payee of check having no right of ac-
tion against drawee bank on an unaccepted
or uncertified check could not maintain tort
action against bank to recover damages for
bank's failure to honor check, since no
action at law can be maintained except
there is shown to have been a failure in
the performance of some legal duty,

GENERAL AMERICAN LIFE INS. Co, y. STADIEM N.C. 203
25 S.E.2d 202

6. Banks and banking €>140(1)

Where bank failed to honor check
drawn by insured to pay insurance premium
and upon death of insured insurer denied
liability on ground of nonpayment of premi-
um, cost of defending action on policy was
not recoverable by insurer from bank on
ground that insurer’s refusal to pay policy
was induced by careless action of the bank,
since the “proximate cause” of insurer’s
loss was not negligent dishonor of the
check but the subscquent independent act
of refusing to pay the insurance.

See Words and Phrases,:. Permanent

Edition, for all other definitions of
“Proximate Cause”.

7. Negligence =62(3)

“Proximate cause” requires a continu-
ous and unbroken sequence of events and
where the original wrong only becomes in-
jurious in consequence of the intervention
of some distinct wrongful act or omission
on the part of another, the injury is to be
imputed to the second wrong as the proxi-
mate cause and not to the first or more re-
mote cause.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Proximate Cause”,

8. Negligence C62(1)

Where causes and effects intervening
between the original wrong and the final
consequences might reasonably have been
foreseen, the last result as well as the
first and every immediate consequence is
considered in law as the “proximate cause”
of the original wrong.

9. Negligence €>62(1)

When a new cause intervenes, which
is not itself a consequence of the first
wrongful cause nor under the control of
the original wrongdoers or foreseeable by
him in the exercise of reasonable pre-
vision, and except for which the final in-
jurious consequence would not have hap-
Pened, then such injurious consequence
must be deemed too remote to constitute the
basis of a cause of action against original
wrongdoer,

-—-—§_<>
Appeal from Superior Court, Lenoir
County; H. A, Grady, Emergency Judge.

Civil action in tort by General American
Life Insurance Company against Yettie
Stadiem, and others, to recover damages

for alleged wrongful refusal to honor check
and in contract to recover the amount of
the check. From a judgment sustaining a
demurrer to the complaint, and dismissing
the action, plaintiff appeals,

Affirmed.

Civil action in tort to recover damages
for alleged wrongful refusal to honor
check, and in contract to recover the
amount of the check.

The complaint, in substance, alleges:

1. That on September 3, 1933, the plain-
tiff issued to David P. Cauley a certificate
of insurance under a group policy taken out
by the Federal Postal Employees Associa-
tion in the face value of $3,000, and payable
to Ruth Sutton Cauley, wife of the insured,
as beneficiary.

2. That in August, 1939, the insured
mailed to the Federal Employees Postal
Association, collecting agent for the plain-
tiff, a check for $21.38, drawn on the First-
Citizens Bank and Trust Company (Kin-
ston, N. C.), in payment of the semi-annual
premium due on his certificate of insur-
ance August 1, 1939,

3. That on September 1, 1939, the in-

sured deposited with the defendant, First-
Citizens Bank & Trust Company, the sum
of $21.38 “for the specific and sole purpose
of covering the $21.38 premium check
* eK Cand -Dayvid= P. Cauley instructed
the agents and employees of the defendant
bank that said funds were to be held solely
for such purpose, thereby creating a special
deposit”.

4. That theretofore on July 13, 1939, the
said David P. Cauley had drawn a check
on the Branch Bank & Trust Company
(Kinston, N. C.) for $5.25, payable to the
order of H. Stadiem; that this check was
written in pencil, signed “D. P, Cauley”,
and was delivered to the manager of the
business known as “H. Stadiem” and agent
of the defendant, Mrs. Yettie Stadiem,
with the understanding and agreement “that
said check would not be presented to the
bank upon which it was drawn or any other
bank for payment”,

5. That on September 4, 1939, the man-
ager of the business conducted by Mr.
Yettie Stadicm altered, changed and forged
the $5.25 check above mentioned by chang-
ing the name of the drawcee bank from
“Branch Banking & Trust Company” to
First-Citizens Bank and Trust Company,
and presented said check so altered and
forged, to the teller of the defendant bank,

VERSITY

fiers

mene

er. CF trie:


a

Os Taye ae:

~ te RORRIME LS ceva

ee

196 N.C

3. Criminal law €=586, 1151

A motion for continuance is addressed
to sound discretion of trial court, whose
ruling thereon is not subject to review on
appeal, except in case of manifest abuse.

4. Criminal law €=662(1)

In murder trial, court’s denial of de-
fendant’s motion for continuance because
of absence of material witnesses, by whom
he proposed to show his good character and
threats against his life by decedent, did not
deprive defendant of constitutional right to
confront his accusers and witnesses with
other testimony, in view of instruction, pur-
suant to solicitor’s agreement, that jury
should consider that such witnesses had so
testified. Const. art. 1, § 11.

5. Criminal law =1120(3)

The trial court’s ruling sustaining
state’s objection to question asked witness
by defendant’s counsel must be sustained on
appeal, in absence of record showing what
witness would have answered.

6. Courts C107

The law as discussed in Supreme Court
opinion must be read in light of facts in
particular case.

7. Homicide C=22(1)

“Murder in the first degree” is unlaw-
ful killing of human being with malice,
premeditation and deliberation.

See Words and Phrases, Permanent

Fuition, for all other definitions oft
“Murder in the First Degree”. ;

8. Homicide €=23(2)

“Murder in the second degree” is un-
lawful killing of human'being with malice,
but without premeditation and delibera-

tion.
See Words and Phrases, Permanent

Fdition, for all other definitions of
“Murder in the Second Degree”.

9. Homicide C=31
“Manslaughter” is unlawful killing of
human being without malice, premeditation,
and deliberation.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Manslaughter”.

10. Homicide ©=23(1), 146

Intentional killing of human being
with deadly weapon implies “malice”, and,
if nothing else appears, constitutes “murder
in the second degree”.

25 SOUTII EASTERN REPORTER, 2d SERIES

See Words and Phrases, Permanent
Fuition, for all other definitions of
“Malice”.

11. Homicide €>146

When implication of malice is raised
by admission or proof of intentional kill-
ing of human being, burden is on defend-
ant to show to jury’s satisfaction facts
and circumstances sufficient to reduce homi-
cide to manslaughter or excuse it.

12. Homicide C>146

To rebut presumption of malice aris-
ing from showing or admission that de-
fendant intentionally killed another with
deadly weapon, he must establish to jury’s
satisfaction legal provocation which will re-
move element of malice, thus reducing
crime to manslaughter, or excuse it al-
together on ground of self-defense, una-
voidable accident, or misadventure.

13. Criminal law ©=822(11)

In murder trial, portion of court’s
charge to jury that, to establish manslaugh-
ter, defendant has burden of showing ab-
sence of malice, and that, to absolve him en-
tirely, he must establish that killing was
not unlawful, but done in self-defense, was
not error when read in connection with
immediately preceding portion, stating that
admission or proof that defendant killed an-
other with deadly weapon raises presump-
tion of second-degree murder and that, to
establish first-degree murder, state must
show premeditation and deliberation,

14. Criminal law €=822(1)

An exception to portion of trial court’s
charge to jury must be considered in con-
nection with entire charge and is not to be
determined by detaching clauses from their
appropriate setting.

15. Criminal law C=822(1)
The trial court’s charge to jury must
be construed contextually.

16. Criminal law C=991

Names C16(2)

Where indictment charged murder of
woman with Christian name of “Cora,” evi-
dence showed that that was her real Chris-
tian name, court's charge, referring to in-
dictment and evidence, gave her Christian
name as Cora, and jury found defendant
guilty of first-degree murder as charged in
indictment, name “Carrie,” used in judg-

STATE vy. UTLEY N.C.
25 S.E.2d 195 197

ment, was within rule of “idem sonans”
and not “fatal variance”.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Fatal Variance” and “Idem Sonans”.

17. Homicide ©=253(1)
Evidence held sufficient to support two
convictions of murder in the first degree.

ed

Appeal from Superior Court, Montgom-
ery County; J. W. Pless, Jr:, Judge.

James Utley was convicted of two mur-
ders in the first degree, and he appeals.

No error.

Criminal prosecution upon two _ indict-
ments, chafging defendant in No. 731 with
murder of Cora Lee Utley and in No. 732
with murder of J. T. Collins, consolidated by
consent for purpose of trial and tried to-
gether. See State v. Grass, N.C., 25 S.E.2d
193, at this term.

Upon the trial below the State offered
evidence tending to show that on morning
of July 24, at time homicide in question oc-
curred, “a picking crew”, composed of Cora
Lee Utley, age 24 years, wife of defendant,
J. T. Collins, age 21 years, brother of Cora
Lee Utley, Willa Mcta Pugh, age 18 years,
Elco Covington, who married niece of Cora
Lee Utley, and perhaps others, under C.
A. Campbell as foreman, were picking
peaches at the Montgomery Orchard; that
defendant, armed with a butcher knife, the
blade of which was 12 to 14 inches long,
came into the orchard and approached “the
crowd”; that J. T. Collins asked defendant
if he wanted a job, to which defendant re-
plied, “No, I believe not”, “No”, or “No,
there isn’t enough of them for me”, as
variously stated by witnesses, and that de-
fendant immediately assaulted J. T. Collins,
and then Cora Lee Utley, inflicting wounds
from which they died.

Eleo Covington, as witness for the State,
described the occurrence in this manner:
“LT saw James Utley come down one of the
peach rows toward where the crowd was
picking. Cora Lee was picking and J. Ty
and the other girl was picking another row
above them. J. T. moved up to the other
side and asked James Utley if he wanted a
job. Utley said ‘No, I believe not’. Then
J. T. moved to another tree. James, the
defendant, walked from the tree he was at
and did like that and walked by J. T. like

he was going to back up, and when he did
he grabbed J. T. im the back of his belt and
stabbed J. T. in the side with a butcher
knife * * * in the right side, and if
J. T. was doing anything or saying any-
thing, I “didnot. - bear St.) *4= *. FF
went across the orchard. I saw him catch
the pick-up. He was bleeding in the side.
I did not see him any more. James pulled
around the tree and went to his wife, Cora
Lee. Cora Lee ran to Mr, Campbell, and
he ran after her. She tripped and fell, and
when she did, I seen James stab her through
her arm with a butcher knife. He ran 12
or 15 feet after Cora Lee. * * * Inext
saw her standing up and James had walked
off and she said he had killed her and fell
back on the peach tree * * *. I heard
him (defendant) ask Mr. Alex Campbell
if she was dead and he told him Yes. He
said if she wasn’t he was going to finish her.
Mr. Alex caught him on the shoulder and
told him not to do that he had done enough.
Cora Lee did not strike at the prisoner at
the time he stabbed her, and had no weapon
in her hand, and I did not see any weapon
in J. T, Collins’ hand. Cora Lee died under
the peach tree in about twelve minutes
after she was stabbed * * *, James
made no effort to render any assistance
after he stabbed her * * *, I was about
18 feet away when James caught J. T. and
about 12 feet when he caught Cora Lee
* * *. I did not see J. T. pull a knife
from his pocket and did not see James get
cut on the thumb.”

Willa Meta Pugh, also witness for State,
gives this version: “I was in the orchard
and saw James when he walked in the field.
Ie stood in the row opposite the tree where
we were picking, and J. T. asked him if he
wanted a job, and James said No. When
J. T. turned his back James grabbed him
and stabbed him one time. He pulled the
knife out of Collins and ran over to where
his wife was; then he chased her around
the tree and she fell, or he knocked her
down, and-then he stabbed her five or six
times while she was on the ground. She
did not say anything * * *, James did
not say anything after he stabbed his wife;
he left and went down behind the pick-up.
He came back after she fell and wanted to
know whether she was dead or not. ~ He
asked Mr. Campbell * * * said if she
wasn't he was. going to finish her. Cora
Lee was not quite dead * * * she died
a few minutes later. J. T. Collins left

ft

#3¢

CIVERSITY OF

‘


VALENTIN", David.

(Need confirmation. )

'Pavid Valentine, 3 free.man of color, convic-
ted at the late Term of. tuilforid /NO) Superio
tourt of the murder of Mrs. “West and her grand.
son, in thet county, wes..sentene:d to--be-hung
Friday the (10th or 17th) instant." WEEKLY
REGISTER AND NORTH CAROLINA GAZETTE, Nov. 109,
1847 (1:1.)

Executed 11/19/47.
The Greensboro [atric Nf26/47 3:

“ prisoner is not permitted to take parts of sen-

’ words, it must be taken in its setting. As has

430 187 SOUTH BASTERN REPORTER Wa

excepts contained all that the judge said in
regard to the burden of proof, which it does
not, clearly the instruction would be erron-
eous, for in every criminal prosecution the
prisoner's plea of traverse casts upon the
state the burden of establishing his guilt be-
yond a reasonable doubt before a verdict can
be rendered against him. State v. Tucker,
190 N. C. 708, 180 S. BE. 720; State v. Single-
ton, 183 N. C. 738, 110 S. EB. 846; Speas v.
Bank, 188 N. C. 524, 125 S. E. 398. But the

tences, or select detached portions of the
charge, and assign errors as to them, ‘when,
if considered with other portions, they are
readily explained, and the charge in its en-
tirety appears to be correct. Every instruc-
tion must be considered with reference to
what precedes and follows it. In other

so often been said, the court’s charge is to
be considered contextually and not disjointed-
ly. State v. Lee, 192 N. C. 225, 134 S. E. 458;
In re Hardee, 187 N. C. 381, 121 S. EB. 667;
Milling Co. v. Highway Com., 190 N. ©. 697,
130 S. E. 724, and cases there cited.

By correct interpretation, we think the
court, in the above instruction meant to say,
and, when read in the light of the whole
charge, did say, that, before the prisoner
could be convicted of murder in the first de
gree the burden was on the state to satisfy
the jury beyond a reasonable doubt of every
element necessary to constitute an unlawful
killing with malice and with premeditation
and deliberation, or a murder committed in
the perpetration or attempt to perpetrate
some other felony such as arson, rape, or
burglary.. As thus understood, the instruc-
tion is in keeping with the language of the
statute, C. S. § 4200, and accords with the
pertinent decisions on the subject. Hence the
prisoner has no valid ground for complaint,
so far as this instruction is concerned. State
v. Steele, 190 N. C. 506, 130 S. E. 308; State
vy. Benson, 183 N. ©. 795, 111 S. E. 869.

[6,7] The court also instructed the jury, to
which exception is taken, that when a killing
with a deadly tveapon is admitted or estab-
lished by the evidence, the law raises two
presumptions against the slayer, first, that
the killing was unlawful, and, second, that
it was done with malice and that an unlaw-
ful killing with malice is murder in the second
degree. This instruction is free from error.
State v. Benson, supra; State v. Fowler, 151
N.C. 732, 66 S. E. 567. An ax when vicious-
ly used, as under the circumstances of this
ease, {s certainly a deadly weapon, and the
trial court was fully justified in so instruct-
ing the jury. State v. Smith, 187 N. ©. 4689,
121 S. E. 737, and cases there cited,

The special instructions, relative to the
prisoner’s alleged intoxication or voluntary,

conform to the law as declared in State y.
Ross, 193 N. C. 25, 186 §. E. 193; State v.
Allen, 186 N. C. 302, 119 S. E. 504; State vy.
English, 164 N. C. 498, 80 S. E. 72; and State
y. Murphy, 157 N. C. 614, 72 S. E. 1075. The
court committed no error in this respect.

A careful scrutiny of the record convinces
us that the prisoner has had a fair and im-
partial trial—one entirely free from rever-
sible error or valid criticism.

The verdict and judgment must be upheld.
No error. 2

HARRIS v. PROVIDENT LIFE & ACCI-
DENT INS. CO. (No. 281.)

(Supreme Court of North Carolina. April 6,
1927.)

1. Insurance €=>668(11)—In action on accident
policy, question whether plaintiff’s injury was
due to fall or old gunshot wound held under
evidence for jury. .

In action on accident insurance policy, ques-
tion whether plaintiff’s injury was due to ac-
cidental fall or to an old gunshot wound held
under evidence for jury, and directed verdict for
defendant erroneous.

2. Appeal and error @=-927(3)—After nonsuit,
evidence must be viewed most favorably to
plaintiff.

In cases of nonsuit, plaintiff's evidence must
be viewed most favorably to him.

Appeal from Superior Court, Hoke County;
Midgette, Judge.

Action by Hector Harris against the Provi-
dent Life & Accident Insurance Companys.
From a judgment of nonsuit, plaintiff ap
peals. Reversed.

The evidence tended to show that the de
fendant issued an accident insurance policy
to the plaintiff in December, 1923; that on
or about October, 1924, while said policy was
in force, the plaintiff accidentally slipped in-
to a hole, and as a result suffered serious in-
jury, and has not been able to work since the
accident.

The plaintiff testified that about twentr
years prior to taking out the policy he had
suffered a gunshot wound in his hip, and
that at the time defendant's agent solicited
him for insurance he notified the agent of bis
injury and of the further fact that he was &
“sort of a cripple’ by reason of the fact
that one leg was shorter than the other.
“* * ® J told him about my wound, and
that it had been cured up twenty years 8£°-
I told him it was a gunshot wound. He took
my money and gave me a note for it, and {s
about three or four days the policy come
back.” At the time of the trial, the plaintl®
was suffering from a chronic pus and infec

drunkenness, were properly modified so as to

tion of the bone in his right leg.

@=For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes

NOC) BOARD OF EDUCATION vy. FORREST 431
(137 S.E.)

The defendant contended that plaintiff’s
injury was not due to the accident in falling
in a stump hole, but was due to the gunshot
wound. In this connection plaintiff testified :

or death resulting from the accident, the acci-
dent is to be considered as the sole cause.”

“3. When at the time of the accident there
was an existing disease, which, co-operating
with the accident, resulted in the injury or

“After the gunshot wound cured up, I did not| death, the accident cannot be considered as the

suffer any from it. * * * That wound began
to run about a month after I fell in the hole.
This leg had not hurt me in twenty years be-
fore. It gave me pain several times when
I would work, and in about four weeks after
the accident it began to run. * * * If any
skin was broken, it was on the inside. I would
not say whether jt broke any bones or not;
some shattered or thin pieces of bone came
out.’

Dr. Murray, witness for the defendant,
testified:

That plaintiff “claimed he fell and injured
his leg, and it started up some old trouble that
he had before from a gunshot wound. * * *
I could not tell how long this wound had been
running. I do not have an opinion as to how
long it had been running or whether it was
an old or new wound. * * * Falling into
this hole, as he claimed to you he did, could have
caused this trouble. He told me that this old
gunshot wound had not given him any trouble
prior to the injury in several years, Taking
‘nto consideration his statement to me, the
primary cause of the running condition was the
runshot wound. It started up the old trouble.”

At the conclusion of the evidence, the mo-
tion for nonsuit made by the defendant was
sustained, and the plaintiff appealed.

; W. B. Whitley, of Raeford, for appel-
ant.

: Smith & McQueen, of Raeford, for appel-
ee.

BROGDEN, J. [1] The accident policy up-
on which the plaintiff brings this suit in-
fires the plaintiff against “the effects re-
sulting directly and exclusively of all other
causes from bodily injury sustained during
the life of this policy, solely through exter-
nal, violent, and accidental means,” ete.

[2] Viewing plaintiff's evidence in its most
favorable light, as we are required to do in
eases of nonsuit, the question to be determin-
ed is whether or not plaintiff’s injury “re-
fulted directly and exclusively of all other
causes * * © golely through external,
“lolent, and accidental means.” The rule of
law governing the cause of action is thus
summarized by Justice Walker in Penn v.
Tas. Co., 160 N, ©. 404, 76 S. E. 263, 42 L. R.
A. (N.S) 597:

pe When an accident caused a diseased con-

ties which together with the accident resulted

: the injury or death complained of, the acci-
“*nt alone is to be considered the cause of the
Scary or death,”

mt. When at the time of the accident the in-
"red was suffering from some disease, but the

sole cause or as the cause independent of all
other causes.”

See Penn v. Ins. Co., 158 N. C. 29, 73 8. B.
99, 42 L. R. A. (N. S.) 593; Fishblate y. Fi-
delity & Casualty Co., 140 N. C. 593, 53 3. B.
354.

The plaintiff asserts that there was no
causal connection between the gunshot
wound and the accidental injury. Upon the
contrary, the defendant asserts that the
plaintiff’s injury was the result of the pre-
existing injury occasioned by the gunshot
wound. The evidence of the plaintiff tended
to show that the gunshot wound was thor-
oughly cured at the time of the accident.
The evidence of the defendant was to the
contrary. Conflicting testimony does not
warrant a withdrawal of the case from the
jury. It is for the jury to determine what
weight shall be given to the evidence. Shell
v. Roseman, 155 N. C. 90, 71 S. E. 86; Christ-
man vy. Hilliard, 167 N. C. 5, 82 S. E. 49;
Lee vy. Brotherhood, 191 N. C. 359, 131 S. E,
729; Smith vy. Coach Line, 191 N. C. 589, 132
8. EB. 567. :

We conclude upon the whole record that
there was sufficient evidence to be submitted
to the jury upon the issues arising upon the
pleadings.

Reversed

|

BOARD OF EDUCATION OF ORANGE
COUNTY v. FORREST et al. (No. 329.)

(Supreme Court of North Carolina. April 6,
1927.)

!. Eminent domain @==254—Board of educa-
tion cannot appeal from award of appraisers
in proceeding to condemn property for school
site purposes; “person aggrieved” (C. S. §
3949, subd. 6; C. S. Supp. 1924, § 5469;
Const. art. f, § 19).

Under C. S. Supp. 1924, § 5469, and in view
of Const. art. 1, § 19, board of education, seek-
ing to condemn private property for school site
purposes, has no right to appeal from award
of appraisers, not being a “person aggrieved,”
in view of C. S. § 3949, subd. 6.

[Ed. Note.—For other definitions, see Words
and Phrases, First and Second Series, Ag-
grieved.)

2. Eminent domain @€=>167(4)—Statute author-
izing taking of private property for school
Purposes must be strictly construed (C. S.
Supp. 1924, § 5469).

c. S. Supp. 1924, § 5469, authorizing the
taking of private property for school site pur-

é P: ‘
“ease had no causal connection with the injury

poses, must be strictly, construed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Jndexes

we 4

= Sasa! eeten oak. So ee Saga Shae Re iat :,

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pee
as Ss

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ek

Pv Biiihy rae SSR

CRAP RANE es Bisse

js


428 137 SOUTH EASTERN REPORTER

Appeal from Superior Court, Pender Coun-
ty: Grady, Judge.

(N. oO.

the trunk were given to witness “by some of
the womenfolks that were in the room the
morning” testatrix died; (5) that the tin box

Caveat proceedings by F. M. Foy and others in which the paper writing was found con-
against Robert L. Foy, administrator and oth- tained insurance policies, gold pieces, and re-

ers, to set aside the last will and testament
of Nora D. Foy. Judgment for propounders,
and caveators appeal. No error.

This was a caveat to the will of Nora D.
Foy. The will was executed on August 11,
1921. The testatrix died on Friday and on
Monday after her death R. L. Foy, chief bene-
ficiary and executor named in the will, togeth-
er with a neighbor, went to the room of the
deceased, unlocked her trunk, and found her
will in a tin box in the tray of the trunk.
The will was contained in an envelope,
marked on the outside, “The Will of Nora D.
Foy.” The tin box in which the will was
found contained insurance papers, some gold
pieces, returns from real estate, and records
of her business transactions. The wedding
rings of the deceased were also in the trunk.
The deceased had an iron safe in another
room of the house and also had a lock box at
the bank. There was abundant evidence to the
effect that the paper writing and every part
thereof including the notation on the back of
the envelope, and also including certain inter-
lineations, were all in the handwriting of the
deceased.
The issues and the answers of the jury
thereto were as follows:
(1) Is the paper writing offered for probate,
and each and every part thereof, in the gen-
uine handwriting of Nora D. Foy; and was
said paper writing found among her valuable
papers and effects after her death? A. Yes.
(2) Is the paper writing offered for probate
and each and every part thereof, the last will
and testament of Nora D. Foy? A. Yes.

From judgment upon the verdict the cavea-

tors appealed.

turns from real estate; (6) that all the busi-
ness transactions of deceased were kept in the
tray of the trunk in which the will was found.
The trial judge properly admitted the testi-
mony. Cornelius v. Brawley, 109 N. C. 542,
14 §. B. 78; In re Will of Jenkins, 157 N.C.
429, 72 S. B. 1072, 37 L. R.A (N. S.) 842; In
re Will of Cole, 171 N. C. 74, 87 S. E, 962;
McEwan vy. Brown, 176 N. C. 249, 97 S. E. 20;
In re Will of Saunders, 177 N. C. 156, 98 S. E.
378; In re Westfeldt, 188 N, C. 702, 125 S. E.
531.

[3] It is urged that the testimony relating
to the keys of the trunk and the record of
business transactions contained therein must
have been based upon personal transactions
with the deceased. We do not think this con-
tention can be maintained. These were inde-
pendent facts, and, so far as the record dis-
closes, were based upon independent knowl-
edge, not derived from any transaction or
communication witb the deceased, Sutton v.
Wells, 175 N. C. 3, 94 8S. E. 688; In re Will
of Saunders, 177 N. C. 156, 98 S. E. 378.

[4] In item 11 of the will, the testatrisx,
among other bequests, bequeathed to Melvina
or Mellie D. Foy, one of the caveators, “my
trunk with its contents after taking out the
articles that I have mentioned for others.
In connection with this bequest, the caveators
requested the court to charge as follows:
“That if the jury shall find from the evi-
dence that the will was found in her trunk and
that under the terms of the will the jury shall
find that the trunk and its contents were given
to Mrs. Melvina Foy, the jury have the right
to consider this as an intent to give the will
to her that she might destroy or do with it as
she pleased, and that she did not intend it to

John D, Bellamy & Sons, of Wilmington, for | operate as a-will.”

appellants.

Bryan & Campbell, of Wilmington, for ap-

pellees.

BROGDEN, J. [1,2] The caveators assign
as error testimony of a devisee in regard to:
(1) Handwriting of the testatrix; (2) that he
found the script propounded, in a tin box in
the tray of a trunk in the room occupied by
the deceased; (3) that the deceased carried

The court properly declined to give this in-
struction. The legal effect of such an instruc-
tion would be equivalent to holding that &
will could be revoked by gift of the receptacle
in which the will was found. The acts which
constitute a revocation of a will are defined
and prescribed by statute. C. S. § 4133 et sea.

We hold that the case was properly tried
and the judgment as rendered must stand.

No error.

the keys of the trunk; (4) that the keys to

:
H
z

&
=

N. C.) STATE v. WALKER 429
(137 8.E.)
Ernest Walker was convicted of murder in
STATE v. WALKER. (No. 322.) the first degree, and he appeals. No error,

{Supreme Court of North Carolina.
1927.)

1. Homicide @=270—Issue of insanity held for
Jury in murder prosecution.

In prosecution for murder, evidence tending
to support plea of insanity held properly sub-
mitted to jury.

2. Criminal law €==33!—Defendant has burden
of proving Insanity to jury’s satisfaction,
Where insanity is interposed as defense,
burden of proof is_on defendant to prove in-
sanity to satisfaction of jury, though proof be-
yond reasonable doubt is not required.

3. Criminal law €=>822(16)—Instruction that
state had burden to satisfy jury that killing
was done in premeditation or in commission
of felony held not prejudicial, where charge
as whole required proof beyond reasonable
doubt (C. S. § 4200).

In prosecution for first degree murder un-
der C. S. § 4200, instruction that burden was
on state to satisfy jury that killing was done
in premeditation and deliberation or in at-
tempt to commit felony held not prejudicial for
omission of requirement that proof be be-
yond reasonable doubt, where entire charge
taken as a whole required proof beyond rea-
sonable doubt before defendant could be con-
victed.

4. Criminal law ¢==327—State must prove guilt
of defendant beyond reasonable doubt.

In every criminal prosecution prisoner's
plea of traverse casts upon state burden of es-
tablishing guilt beyond reasonable doubt be-
fore verdict can be rendered against him.

5. Criminal law @=822(1)—Detached portions
of charge attacked must be considered with
reference to entire charge.

Every instruction must be considered with
teference to other instructions before and aft-
er; defendant not being entitled to assign error
’s to detached portions which are explained
by other portions of charge.

April 6,

6. Homicide @=>152—Unlawful and malicious
killing constituting murder in second degree
is presumed on proof of homicide with dead-
ly weapon.

: Where killing with deadly weapon is ad-
mitted or established, it is presumed killing was
talawful and malicious constituting murder in
*econd degree.

7. Homicide @¢=>16—Ax viclously used held to
Constitute “deadly weapon” in murder prose-
tution.

In prosecution for murder, ax when vicious-

‘7 used constituted deadly weapon; instruction

to that effect being proper.

(Ed. Note.—For other definitions, see Words

‘nd Phrases, First and Second Series, Deadly
*apon.]

Appeal from Superior

Co: Durham
unty; Lyon, Judge.
ee 9

Court,

Mel. J. Thompson and B. Ray Olive, both of
Durham, for appellant.

D. G. Brummitt, Atty. Gen., and Frank
Nash, Asst. Atty. Gen., for the State.

STACY, C. J. [1] There is evidence on be-
half of the state tending to show that on the
night of July 25, 1926, the prisoner, Ernest P.
Walker, a colored man, burglariously entered
a dwelling house in the city of Durham, in
the nighttime, with intent to steal the goods
and chattels of another then being in said
dwelling house, ravished Louie Cassidy, a col-
ored woman, one of the occupants therein,
murdered her husband, Joseph Cassidy, also
an occupant of the house, by striking him
three times on the head with an ax, success-
fully made his escape, and was arrested at
his home three or four days thereafter. The
murder, for which alone the prisoner has
been tried and convicted, was committed in
the perpetration of rape, robbery, and burg-
lary. The charge is not denied; in fact,
the corpus delicti, with all of its attendant
atrociousness, is admitted. The defense in-
terposed by the prisoner amounts to a plea
of insanity alleged to have been aggravated
by intoxication or drunkenness at the time.
The evidence tending to support this plea was
properly submitted to the jury, and was re-
jected or found to be unsatisfactory. State
v. Campbell, 184 _N. C. 765, 114 S, E. 927;
State v. Terry, 173 N. C. 761, 92 S. E. 154.

[2] It is well settled, by a long line of deci-
sions, that, in this jurisdiction, as well as in
many others, in a criminal prosecution, where
insanity is interposed as a defense, the bur:
den of proof is on the defendant who sets it
up to prove such insanity, not beyond a rea-
sonable doubt, but to the satisfaction of the
jury. State v. Jones, 191 N. C. 753, 133 S. E.
81, and cases there cited.

The only questions presented by the de-
fendant’s appeal relate to the correctness of
certain instructions contained in the court's
charge to the jury, and to the refusal of his
honor to give, without modification, as re-
quested, two of the prisoner’s prayers for
special instructions.

The first exception is directed to the follow-
ing portion of the charge:

“Now before you can convict the defendant
of murder in the first degree, you must be sat-
isfied beyond a reasonable doubt (and the bur-
den is on the state to satisfy you that the kill-
ing was either done in premeditation and de-
liberation or was done in the commission or at-
tempt to commit some other felony, burglary,
rape, or arson).”

(3-5] The prisoner excepts and assigns as
error only that part of the instruction in pa-

renthesis. If the part to which the prisoner

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4

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314 N.C,

son, 82 N.C. 541. To bring up the matter
in this way would be to accomplish by in-
direction what the statute expressly for-
bids. The case-is not one in which the
alleged error appears on the face of the
record proper, which might be corrected in
our supervisory power, Const. Art. IV, Sec.
8, State v. Lawrence, 81 N.C. 522, but it
is to review a ruling of the court entered
on motion after trial. Alexander vy. Rich-
mond Cedar Works, 177 N.C, 536, 98 S.IE.
780. This would require a “postca or case
* .* * to be made up.” Ex parte Biggs,
64 N.C. 202; State v. Moore, 210 N.C. 686,
188 S.E. 421.

It results, therefore, since the case is one
in which the State has no right of appeal,
a dismissal must necessarily follow. State
v. Tripp, 168 N.C. 150, 83 S.E. 630. “As
no appeal lay, a certiorari, as a substitute
therefor, cannot be granted.” Guilford
County v. Georgia Co., 109 N.C. 310, 13
S.E. 861, 862.

Appeal dismissed.

Certiorari denicd.

° KEY NUMBER SYSTEM

sume

224 N.C. 760
STATE v. WADE.

No. 580.

Supreme Court of North Carolina,
Dee. 13, 1944.

1. Rape ©=59(9)

In rape prosecution where evidence es-
tablished that prosecutrix was under 12
years of age, defendant’s testimony that
prosecutrix stated she was 12 years of age,
and that she gave her consent to sexual in-
tercourse, did not warrant a charge on stat-
tite relative to rape committed upon a per-
son over 12 years of age. G.S. $$ 14-21,
14-26,

2. Rape C13

One who has carnal knowledge of a fe-
male child under the age of 12 is guilty of
rape, and that the offender may have be-
lieved the child was above the age of con-
sent will not mitigate the crime. G.S. §§
14-21, 14-26.

32 SOUTIT EASTERN REPORTER, 2d SERIES

3. Criminal law €=419(4)
Rape 41
A_defendant on trial for rape may
show that prosecutrix is above the age of
consent, but he cannot prove this fact by
her declarations. G.S. §§ 14-21, 14-26.

—_——___-—___—_—_

Appeal from Superior Court, Scotland
County; F. D. Phillips, Judge.

Melvin Wade was convicted of rape of a
female child under 12 years of age, and he
appeals.

No error.

Criminal prosecution tried upon an in-
dictment charging the defendant with rape.

Verdict: “Guilty of rape as charged in
the bill of indictment.” Judgment: Death
by asphyxiation. The defendant appeals,
assigning errors.

Harry McMullan, Atty. Gen., and Hughes
J. Rhodes and Ralph Moody, Asst. Attys.
Gen,, for the State.

Thos. J. Dunn, of Laurinburg, for de-
fendant.

DENNY, Justice.

The defendant excepts and assigns as
error the failure of his Honor to charge
the jury that it could return a verdict un-
der G.S. § 14-26, C.S. § 4209, the pertinent
part of which reads as follows: “If any
male person shall carnally know or abuse
any female child, over twelve and under
sixteen years of age, who has never be-
fore had sexual intercourse with any per-
son, he shall be guilty of a felony and shall
be fined or imprisoned in the diseretion of
the court,’ and further excepts and as-
signs as crror the failure to submit to the
jury both counts in the bill of indictment.

The first count charges the defendant
with assaulting Annie Mae Terry, on 13
June, 1944, against her will and of unlaw-
fully, wilfully, violently and fcloniously
ravishing and carnally knowing her. The
second count charges that on 13 June,
1944, the defendant “wilfully, unlawfully,
felonious and violently did carnally know
and abuse one Annie Mae Terry, a female
child, she, the said Annie Mae Terry, be-
ing then and there under the age of 12
years.”

The mother of Annie Mae Terry testi-
fied she was born 31 March, 1935. No-
vella Terry, with whom Annie Mae Terry
has lived since she was one year old, tes-

STATE v. WADE N.C. 315
Cite as 32 S.E.2d 314

tified that she was present when Annie
Mae Terry was born and that she was
born in Robeson County 31 March, 1935.
The State also offered as corroborative
evidence a certified copy of the records of
Vital Statistics, tending to show that An-
nie Mae Terry was born in Robeson Coun-
ty, 31 March, 1935.

[1] There is abundant evidence to the
effect that the prosecutrix was ravished
and carnally known and that the defend-
ant is the party who ravished her and car-
nally knew her. The. defendant testified,
however, that the prosecutrix.told him she
was 12 years oki, and in his confession
to the officers shortly after his arrest, he
said the prosccutrix consented for him to
have sexual intercourse with her. Did
this testimony of the defendant entitle him
to have the Court charge the jury that
they might return a verdict under G.S. §
14-26, the statute hereinbefore quoted?
We do not think so. We think, upon the
evidence disclosed on the record, it was
proper to submit only the second count in
the bill of indictment.

The pertinent part of the statute appli-
cable to the facts in this case is as follows:
“Every person * * * who is convicted
of unlawfully and carnally knowing and
abusing any female child under the age of
twelve years, shall suffer death.” G.S.,
§ 14-21.

[2,3] We think the principle of law
applicable to the facts in this case, together
with numerous citations in support there-
of, is clearly stated in 44 Amer.Jur., Sec.
41, p. 926, which is as follows: “It is a
well-settled rule that where the law pro-
vides that sexual intercourse with an un-
married female under a certain age shall
constitute the crime of rape, ignorance of
the age of the prosecutrix on the part of
the defendant in a prosccution for such
crime committed on a female under the
prohibited age constitutes no defense, no
matter whether such ignorance was based
on a good faith belief that the prosecutrix
was above the prohibited age, or on an ex-
ercise of reasonable care to ascertain her
age, or whether the defendant was misled
by her appearance or her misrepresenta-
tions. In any event, he has committed a
rioral wrong, and he was bound to know,
at his peril, that her age was such that
consent on her part would prevent the act

from being rape. The fact of such belief
cannot be taken into consideration in miti-
gation of punishment.” A defendant on
trial for rape may show that the prosecu-
trix is above the age of consent, but he
cannot prove this fact by her declarations.
52 C.J., Sec. 99, p. 1074; Bryan v. State,
18 Ala.App. 199, 89 So. 894; Renfroe v.
State, 84 Ark. 16, 104 S.W. 542; Heath v.
State, 173 Ind. 296, 90 N.E. 310, 21 Ann.
Cas. 1056; Campbell v. State, 63 Tex.Cr.
R. 595, 141 S.W. 232, Ann.Cas.1913D, 858.

One who has carnal knowledge of a fe-
male child under the age of twelve years is
guilty of rape, and the fact that the offender
may have believed the child was above the
age of consent, will not mitigate the crime.
The statute does not require the State to
charge or prove that a person indicted
thereunder must have known the female
child to have been under the age of con-
sent; one having carnal knowledge of
such a child, does so at his peril, and his
opinion as to her age, is immaterial. In
the case of Heath v. State, supra, the Su-
preme Court of Indiana, in considering the
same question presented here, said [173
Ind. 296, 90 N.E. 312]: “The law ab-
solutely forbids carnal intercourse with a
child under 14 years of age, and no belief
respecting the age of the girl, however
well founded, will excuse the transgressor
if at the time of the sexual act she is in
fact within the prohibited age. People v.
Ratz,115. Cal. -132, 46 P. 9155--State- v:
Sherman, 106 Iowa 684, 77 N.W. 461;
Commonwealth v. Murphy, 165 Mass. 66,
42 N.E. 504, 30 L.R.A. 734, 52 Am.St.Rep.
496; Smith v. State, 44 Tex.Cr.R. 137, 68
S.W. 995, 100 Am.St.Rep. 849; State v.
Houx, 109 Mo. 654, 19 S.W. 35, 32 Am.
St.Rep. 686; Lawrence v. Com., 30 Grat.
[845, 71] Va. 845.”

As required by the law, his Honor stated
in his charge to the jury that the jury
must find from the evidence, beyond a
reasonable doubt, that the prosecutrix was
under twelve years of age at the time of
the- offence, before a verdict of guilty
could be returned under the count sub-
mitted. These exceptions and assigninents
of error cannot be sustained, and the re-
maining exceptions and assignments of er-
ror are without sufficient merit to disturb
the verdict below,

No error,

*MtT61T *6c dequieceg ue (puetzeos) GSon °xAudse SxoeTq SuTaToW SadVvM


WALLACE
According to Tarborough Free fress ' ee hd duit fataen We — JULEALL — 4, )
f the murder of Mr. B Ebon,

6/2/38 2:4 Kills was executed “Negro Wallace, convicted o
113 d Wallace respited was executed © ‘Bshington, Ne C., on Friday, the 20th
on SAS a (July 20, 18°. RALEIGH REGISTER AND NORTH CAROLINA
tor a while.. GAZETTE, Ralei. "C, Aug. 6, 1838 (3:h)

"BEAUFORT SUPE: | URT was held week before last, Judge

‘illis and Wallis, slaves of Margaret
‘icted for the murder of Benj. Eborn
executed on the 20th instanteecee"

and sentenced ©
RALEIGH REIL ND NORTH CAROLINA GAZETTE, Raleigh, NC,

May 21, 1838 ( ':u.)
ye idee [der Chas (CES tele cc a

| He WAS HUNG en A (Lie fe a at of att 6 LLL i

Saunders presi
Ann Eborn, wer:

ET TE Le ee NRE Te eNO aE TE En ee men. ae gO Oe eT Deere ae cee Cee ene ee
Slave WALLACE, black, hanged Washington, North Carolina, 7-20-1838,

"Mr. BENJAMIN EBORN, JRey was engaged in setting staves with two of his negroes:
About 10 o'clock, one of the negroes ran to Maj, John Clark's (an uncle of Mr,
Eborn,) and XHX## informed him that a limb had fallen upon his master and killed
| him, Mr, Clark immediately went to the place in the woods, and found Mr, Eborn
lying dead upon the earth - his head mashed and the ground covered with blood and
brains, Mr, Clark had the deceased removed to his house, where he was dressed in
the robe of death, After which, Mr, Clark, in reflecting up6n the circumstances,
became ¥WKX suspicious that he was murdered by his negroes, and called to assist
him a Magistrate and some of his neighbors, who went to the place of his death,
and made #M€ such examination as justified the Magistrate in committing the negroes
to Jail to await their trial at the next Superior Court. Mr, Eborn was about 26
years of age, His very agreeable and generous disposition had endeared him to a
large number of young companions, and his sudden and unexpected death has left an
aged father and very many near and dear relations to mourn his early death, (Date-
lined Washington, Ne C., April 3, 1838).
RALEIGH REGISTER AND NORTH CAROLINA GAZETTE, Raleigh, NC, April 9, 1838 (3:3) The
prelude to the article states that the crime occurred in the District of Log House
Landing on March 26, 1838),


WALKER, Tom, black, hanged at Fayetteville, NC, on April 15, 1907.

"(Special Dispatch to the JOURNAL) March 6, 1907-Chief of Police Chasin, of Fayetteville,
NC, who was shot on last Saturday night by a negro, Tom Walker, died Tuesday morning

from the effects of wounds, The negro. shot two other policemen, one of whom is not
expected to live. The police were making a raid on the negro's house to learn if he

was conducting a blind tiger. The negro was lodged in the penitentiary yesterday and Gover~
nor Glenn promised a speedy trial. Court convenes at Fayetteville the 25th when the

trial of the murderer will take. place." JOURNAL, Atlanta, Ga, 3=6-1907 (h-<h.)

"(AP) Mare 2, 1907-A special to the Wilmington STAR from Fayet eville, Ne. Ce, says
that early tonight Policeman Owen Lockamy was shot and instantly killed and Chief of
Police A. Chason, was fatally wounded and has since died, and another officer was
probably fatally wounded by Tom Walker, a negro desperado, The chief and the officers had
gone to Walker's house to quell a disturbance and were about to enter the house

when they were fired upon, Lockamy fell at the first shot and the others were wounded
by succeeding shots, Several pistols in the possession of the negro were emptied,
Walker was suspected of illegally selling linger at the house, He fled after the
shooting. Governor Glenn, fearing trouble if the negro should be captured by .the
posses now in pursuit, has placed the Fayetteville Light Infantry under command of the
mayor, ‘ Bloodhounds are on the way from Wilmington on a special ##4X train." (Later)
"Hilmington, N. Ce, Mare 3, Tom Walker, the negro murderer of two members of the
Fayetteville police force, has been arrested at Dunn, Ne. Ce"

JOURNAL, Atlanta, Georgia, March 3, 1907 (11/6.)

The following is undoubtedly the case:

"An unusual Tietdent in Fayetteville - In 1907 a Negro was executed in Fayetteville
for murder, At his funeral, which was held in a church, the casket was opened that
the congregation might pass by and look at the dead man. His wife sat at the head
of the casket with a hat in her hand and took a collection for her benefit. The
Fayetteville OBSERVER of that day says quite a large.sume of money was realized.
THE STORY OF FAYETTEVILLE AND THE UPPER CAPE FEAR, by John A. Oates; Charlotte, NC:

Dowd Press, 1950, page 727.

"Fayetteville, NC, Mar. 27, 1907-The attempt of Walker to kill himself yesterday

was unsuccessful, 4e sustained serious injuries, but was brought into courtroom

this morning ahd at 2:30 o'clock the case was given to the jury after masterly

charge by Judge Webb, After less than half an hour's deliberation, the jury returned into
courtroom and rendered a verdict ofmurder in the first degree. Judge webb sentenced

Walker to be executed on the 15th of April," TIMES DISPATCH, Richmond, Vas, Mar. 28, 1907
(1:6.) .

#Fgyetteville, March 26, 1907=At. 2 o'clock today the twelfth juror went into the box

for the trial of Tom Walker for the murder of Chief of Police Charon and Officer

Lockamy, At the afternoon session Judge Webb ordered the prisoner to be brought into court,
There was a delay and presently Sheriff Watson entered the courtroom and whispered to the
judge, and at the same time Dr. A. S. Rose, county physician, was called out. An

excited whisper buzzed throughout the crowd that ‘Walker had killed himself, It

developed that he had really attempted to beat out his brains against, the walls of

his cell, and had very badly cut his head, The matter became still more serious,

when Reve Ie We thiehes, rector of St. John's Church, was summoned to the jail, Dr.

Rose appeared in court, and at the direction of Judge Webb stated that he found

Walker in a pool of blood, with four or five lacerations of scalp, one depressed

fracture of skull and four bad contusions, and that he could not possibly appear

in court, The trial was postponed until tomorrow. Walker must have gotten to the

top of his cell and hurled himself, head first down to the stone floor, Crowds
gatheredabout the-jail at the news but there was no disturbance or demonstration,"

TIMES DISPATCH, R,chmond, Virginia, March 23, 1907 (5/3.)

"Raleigh, March ) = The negro, Tom Walker, who was arrested Saturday night at Dunn,
Harnett County, for shooting down three policemen in Fayetteville while the officers.
were raiding his place as a 'blind tiger’, was brought here Sunday noon and committed to
the penitentiary for safekeeping. He says- that he has no regrets for the crime, He
will be kept in the penite ntiary for safekeeping until arrangements are made for
the trial, which is to be just as speedy as possible, Governor Glenn said this
morning that he is muck gratified at the course the people of Fayetteville, have pur-
sued in not trying to prevent the bringing of the prisoner to Raleigh, and he feels
sure there will be no interference now with the due process of law. It is his»
desire to bring the negro to justice as quickly as possible. To this end he says

he is ready and anxious to call a special term of Superior Court whenever the
Fayetteville authorities askfit for the trial of Walker." TIMES DISPATCH, R,chmond,
Vae, March , 1907 (8=2.) ~ ) | ,

"Fayetteville, N, C., March 2, 1907-An appalling tragedy occurred at Fayetteville —
about 8 o'clock tonight when three policemen were shot in a 'blind tiger', one being
killed and the other two likely to die, Chief of Police Albert Chason, with two. other
policemen, F. Be Buckingham and Owen Lockamy, went to the house of Tom Walker, a

negro, wyo lives near Cross Creek Cemetery, with a warrant to search his house for a
‘blind tiger.' They found a woman, Walker s wife, also a white man, who came here as a
tramp about 10 days ‘ago, He was a customer and had just bought a bottle of beer and
was about to open it, when the policemen walked in on them, The chief of police, J.

A. Chason, read the search warrant to the woman, and she said that, her husband was
not at home. Her husband, Tom walker, came in about this time, and told the policemen
to read the warrant to him, which the chief proceeded to do, when Walker remarked?
'Yes, you have hounded me down, and now, God damn you, IT will kill you,' ‘He took
his hands from his pockets and began firing immediately and rapidly, discharging in

all six shots, hitting all 3 of the policemen, killing Mr. Owen Lockamy instantly

and fatally wounding Mr. Chason, who was hit twice, one bullet taking effect in the

left side of his face near the nose and running back into his head severak inchés;

the other passed through his left foot. 7

"Mr, Buckingham was hit by one bullet, it taking effect between the heart and left
shoulder, Ghason' and Buckingham were taken to the Highsmith Hospital, where everything was
done for them by Dre Je Fe Highsmith and his associates to save their lives, if

possible, The city is in a very excited condition, Magor J. A. Vann was s worn in as
Chief of Police with a number of extra policemen to assist him in keeping order, Telegrams
and phone messages were sent all over the state, describing thecnegro, who is of a
ginger-cake color, about five feet eight inches, and weighs about 160 pounds, He

wears tan shoes and a cape He has a small black moustache, T here is areward of

$1,000 for his capture, dead of alive, and about 3,000 armed men are searching for

him, He will be captured before day, The city and county have erdered bloodhounds

from Maxton, Wilson‘and Wilmington, There has been a special train ordered to bring

the hourlds, The people are thoroughly aroused and will have the negro at any cOste
Governor R, Be Glenn sent a phone message for the F, I. Le I. Company which is under

the command of Captain N. H, McVeachy to hold themselves ready to obey orders either

from the sheriff of the county or the Mayor of the city. It is not thought that there will
be any mob violence but the people ar e determined that the guilty party shall

suffer for his crime, He is a bad character and was arrested about 10 days ago. and

was released for want of evidence. ewe |

"It has been reported that the negro made his escape by leaving on the Atlantic

Coas t Line frieght train going north, but later a phone message from a town about
twenty-four miles north of here, on the Atlantic-Coast Line, states that the negro

Tom Walker had been arrested there and: confessed to the crime. He will be taken to
Raleigh for the present for safekeeping. Chief Chason is not expected to live

through the night." TIMES DISPATCH, R°chmond, Vae, Mar. 3, 1907: (196.)

t

718 N.C.

at an old house near Mr. Perry’s store; that
Ilarvey Wallace called for a can of peaches,
and, while Mr. Perry was reaching up to get
the peaches, Ilarvey Wallace stuck his pis-
tol in Mr. Perry's side and said, “Stick ’em
up”; that about this time a man was com-
ing up the steps and Harvey Wallace turned
and shot the man; that the witness then ran
out of the store and heard two more shots.
The witness admitted that he was indicted for
the murder of Mr. N. HW. Perry along with
Harvey Wallace and aman by the name of
White. He testified that he went to Cum-
nock looking for work, and that there was
nothing said about helding up any store, and
he knew nothing about any trouble until aft-
er he got in the store when the shooting took
place.

Testifying in his own behalf, the prisoner
said: “I got up with White and Myers in
Raleigh and we went to Cumnock Coal Mines
looking for work and saw the night watch-
man near Cumnock and asked him about work
and asked for a drink of water. All three of
us slept in an old barn near Cumnock store.
The next morning all three of us went to the
store ta get something to eat. I leaned up
against the counter with White behind me
and Myers near the door. I asked the man
for a can of peaches and asked him if we
had to buy sugar to sweeten them, and he
said, ‘No, they are already sweetened.’ As
he reached up to get the peaches White be-
gan to curse him and said he had locked him
up in that store one night when he was work-
ing at the Coal Mine. About that time a man
came up the stairway and White shot him
and then I ran and heard two more shots
fired, but I do not know who was shot. I
left the store and went down on the railroad
and came near Sanford and stopped at a
colored man’s house by the name of John
McDougal to get something to eat. I did not
tell McDougal that I did the killing. This
is the pistol that White gave me. Ilis name
is engraved on the handle. Afier the shoot-
ing I went under the power line and went to
a camp near Pembroke where I was arrested,
I had this jistol on me when I was arrested.
I was taken to the State Penitentiary. I
went in the store to buy some peaches. I
had seventy-five cents. White had the pis-
tol in his hand when it was shot.. I was next
to the back of the store where Mr. Perry
was getting the fruit and White was behind
me and Myers behind him. between us and the
door which we had entered.”

“The prisoner admitted that the wounds in-
flicted by the pistol shots caused Mr. Perry's
death. Ile did not tender any prayers for
instructions. The verdict of the jury and
the judgment pronounced are given above.
The prisoner appealed upon exceptions point-
ed out in the opinion of the court.

II. M. Jackson, of Sanford, for appellant.

165 SOUTH EASTERN REPORTER

Dennis G. Rrummitt, Atty. Gen., and A. A,
F. Seawell, Asst. Atty. Gen., for the State.

ADAMS, J,

The first four exceptions taken by the pris-
oner question the competency of the testi-
mony offered by the state in proof of the dy-
ing declarations of the deceased. The ground
of attack is the absence of suflicient evi-
dence to identify the assailant and to bring
the declarations within the established rules
of law.. These exceptions, in our opinion,
must be overruled.,’

{1] Dying declarations are an exception to
the rule which rejects hearsay evidence, but
the conditions under which they are admit-
ted by the courts have often been defined.
At the time they are made the declarant
must be in dctual danger of death and must
have full apprehension of his danger; and.
when the proof is offered, death must have
ensued. State vy. Mills, 91 N. C. 581. These
declarations are received on the general prin-
ciple that they are made in extremity ;
“when,” as said by Eyre, C. B., “the party,
is at the point of death, and when every hope
of this world is gone: when every motive
to falsehood is silenced, and the mind is in-
duced by the most powerful considerations to
speak the truth. A situation so solemn, and
so awful, is considered by the law as creat-
ing an obligation equal to that which is im-
posed by a positive oath administered in a
court of justice.” Rex v. Woodcock, 168 Eng.
Rep. 352.

[2] The testimony excepted to indicates
that the deceased was conscious of impend-
ing death. A few minutes after he had been
shot twice he said in the presence of wit-
nesses, ‘They have killed Mr. Beal and they
have got me; I am going to die.” He had
been shot in the abdomen and was bleeding
freely. In State v. Mills, supra, the declara-
tion was: “I am dying. I have been shot
three times. I am bound to die;” and in
State v. Shouse, 166 N. C. 306, 81 S. E. 333,
334, “I know I am going to die from the
wound.” In State y. Quick, 150 N. C. §20,
64 8S. E. 168, the language of the deceased is
recorded to have been, “Ile is gotng to die’:
in State y. Watkins, 159 N. C. 480, 75 S. EK. 22
23, “They had killed him”
Franklin, 192°N: C, 723, 135 8.-E. 859, “He
was killed.” Proof of all these declarations
was held to be competent.

; and in State v.

[3] In the present case the trial court made
no error in admiting similar proof. The fact
that the deceased did not identify the pris-
oner by name as the one who shot him is
inmmaterial. He did not know the name; the
three men who came into the store were
strangers. But the deceased described the
physical appearance of the prisoner and dis-
tinguished him from his two companions.
llis assailant, he said, was a “light colored

STATE vy. WALLACE
165 S.E. she 719

man,” a “tall yellow man,” and the other two
were smaller and of darker color. The pris-
oner admitted that of the three men who
went into the store he was the light-colored
man. Upon this evidence the question of his
identity was appropriately left to the jury.
All the declarations of the deceased relate to
the facts constituting the res geste of the
‘homicide; that is, to the act of killing and
the circumstances immediately attendant.
Underhill’s Cr. Evidence (8d Ed.) § 178.

[4-6] The prisoner excepted to the follow-
ing instruction: “The use of a deadly weap-
on in the perpetration of a murder raises a
presumption of malice and the law says that
wherever there has been an unlawful killing
of a human being with a deadly weapon.
nothing else appearing, the prisoner charged
with the crime would be at least guilty of
murder in the second degree, and the burden
shifts to him to offer evidence which satis-
fies the jury that the killing was justifiable,
or that it was done under such circumstances
4s to reduce the crime to manslaughter. In
this case there has ‘been no such evidence,
There has been no attempt at justification
and I therefore charge you that upon the
evidence offered here you can return one of
three verdicts, which verdict must be based
upon the evidence.”

Objection was made to the use of the word
“murder” in the first clause: but, if its use
was infelicitous, as suggested, we are unable
to see that it was prejudicial. There is no
evidence of manslaughter or self-defense. If
a crime was committed, it was murder either
in the first or second degree. The sentence
to the effect that, wherever there has been
an unlawful killing with a deadly weapon,
nothing else appearing, “the prisoner charged
with the crime would be at least guilty of
murder in the second degree’ must be con-
Strued in connection with the entire charge.
Every part of the charge must be read with
reference to what precedes and follows. This,
it has been said, is so plainly fair and just
to the judge and to the parties as to have
commended itself to the courts as the only
reasonable rule, State v. Exum, 138 N. Cc.
599, 50 S. E. 283; Kornegay v. Atlantic Coast
Line R. Co., 154 N. C. 389, 70 S. FE. 731. His
honor gave the jury the express instruction
to acquit the prisoner if they did not find
from the evidence that he committed or par-
ticipated in the homicide. If he killed the
deceased, the presumption is that he did so
intentionally, since all persons are presumed
to intend the consequences of their acts.

[7] It is true that a person on trial for a
crime of this character may rely on the state's
evidence to show matters in mitigation or
excuse, But, as the state offered no such
evidence, there was no error in the instrue-
tion that it was incumbent upon the defend-
ant to establish such matters to the satisfae-

tion of the jury. State v. Gaddy, 166 N. C.
341, 81 S. E. 608.

{8] The sixth and seventh exceptions re-
late to the court's recital of the prisoner's
admission that the deceased was killed with
a deadly weapon; that he was present at
the time of the homicide; that some one else
in the crowd ordered the deceased to stick
up his hands and then shot and killed him.
They relate also to the court's remark that
by these admissions the question whether the
prisoner was at the store was eliminated;
also to the court's stating the contention that
upon the prisoner’s admission and other evi-
dence the jury should find that the prisoner
and his companions entered the store for the
purpose of committing robbery.

These exceptions do not disclose any sub-
stantial error, Only a part of the prisoner's
testimony appears in the record: but in the
case on appeal it is said that he testified to
other matters which are referred to in the
charge, and that “all statements in the charge
in reference to his testimony are correct.”
We must therefore treat these statements as
a part of the prisoner's unrecorded testi-
mony. Neither here nor in the outline of the
state’s contentions referred to in the ninth.
tenth, and eleventh exceptions do we find
anything indicating the court's expression of
an opinion concerning the evidence. In a
subsequent part of the charge the court ex-
plicitly warned the jury against the impres-
sion that he had any right to entertain or
express an opinion regarding the prisoner's
guilt or innocence.

[9] The prisoner contends, finally. that
there is error in the court's failure to instruct
the jury carefully to scrutinize the testimony
of Charlie Myers. an alleged accomplice in
the crime. He tendered no prayer for an in-
struction to this effect. In Rex y, Jones, 2
Camp. 132, Lord ENlenborough observed:
“No one can seriously doubt that a conyie-
tion is legal, though it proceeds upon the evi-
dence of an accomplice only, Judges, in their
discretion, will advise a jury not to believe an
accomplice unless he is confirmed, or only
so far as he is confirmed; but if he is be-
lieved, his testimony is unquestionably suffi-
cient to establish the facts he deposes. It
is allowed, that he is a competent witness:
and the consequence is inevitable, that if
credit be given to his testimony, it requires
no confirmation from another witness.” In
his comment upon this ease Judge Gaston re-
marked, “We are not aware of any judicial
decision in our country, at variance with the
rule hrought hither by our ancestors.” State
v. Haney, 19 N.C. 290, 397.) The principle is
sustained in a number of our decisions and
eXplicitly approved in the following words:
“Tustruection to serutinize the testimony of
2 withess on the ground of interest or bias
is a subordinate and not a substantive fea-

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716 N.C.

and the defendants were affected with notice
of all proceedings pending the trial. In all
the deeds and in the plaintiff's mortgage the
tracts of land are described as containing re-
spectively 76 and 25 acres. The plaintiff went
into possession of the land under the commis-
sioner’s: deed in 1923, and the defendants
made no complaint until the present suit was
begun. There is unquestioned evidence of
mistake and none in rebuttal. The defend-
ants, therefore, were not entitled to judgment
of nonsuit.

{4] Furthermore, the court was justified in
instructing the jury to answer the issue in
the affirmative if they found the facts to be
as shown by all the evidence. In response to
the question whether the court should write
the answer, the “jury signified, yes, sir’;
and then upon a poll taken each juror gave
the same answer. This was the only issue
raised by the evidence, and this the only in-
struction consistent with the proof.

[5] We cannot assent to the proposition
that upon the facts of this case the plaintiff
is entitled to equitable relief only on condi-
tion of a new foreclosure. We are not now
concerned with the rights of innocent pur-
chasers. Dameron vy. Rowland Lumber Co.,
161 N. C. 495, 77 S. E. 694. The only parties
interested are the mortgagors and the mort-
gagee, and as between them it would be in-
equitable to deny relief when all the evidence
clearly points to the fact that, owing to mis-
take, the parties did not consummate the con-
tract’ they intended to make. Butler v. Dur-
ham, 38 N. C. 589; Durant v. Crowell, 97
N. C. 367, 2 S. B. 541; Sills v. Ford, 171 N.
C. 733, 88 S. BE. 686; Bank of Union v. Red-
wine, 171 N. ©. 559, 88 8. I. 878; Roberts v.
Massey, 185 N. C. 164, 116 S. E. 407; Gray v.
Mewborn, 194 N. C. 348, 139 S. E. 695.

After considering all the exceptions in the
appellants’ brief, we find no error.

No error.

|

23 N, C. 284
STATE v. WALLACE,

No. 89.

Supreme Court of North Carolina,
Oct. 12, 1932.

1. Homicide @=203(1).

Dying declarations are admissible only
if declarant was in actual danger of death
and fully apprehended such danger when they
were made and death ensued before they were
offered.

165 SOUTH EASTERN REPORTER

2. Homicide G=203(7).

Dying declarations of one stating in wit-
nesses’ presence few minutes after being shot
twice that he was going to die held admissi-
ble.

3. Homicide G>268.

Defendant’s identity as one who shot de-
ceased held for jury, in view of deceased’s dy-
ing declaration and defendant’s admission.

Deceased described his assailant’s phys-

ical appearance and distinguished him
from two companions, with whom he en-
tered deceased’s store, as “light colored
man” and “tall yellow man,” while others
were smaller and darker, and defendant
admitted that he was “light colored man”
who entered store.

4. Homicide €=340(1).

Instruction that use of deadly weapon in.

perpetration of “murder” raises presumption
of malice held not prejudicial to defendant,
in absence of evidence of manslaughter or
self-defense.

5. Criminal law €=822(1).

Every part of court’s charge must be read
with reference to what precedes and fol-
lows.

6. Homicide C145,

Presumption is that killing was inten-
tional; all persons being presumed to intend
consequences of their acts,

7. Criminal law @=778(2).

Instruction that defendant must establish
matters in mitigation or excuse of crime held
not error, where state offered no evidence of
such matters.

8. Criminal law @=822(13).

Court’s charge that defendant admitted
deceased was killed with deadly weapon
while defendant was present, and that state
contended jury should find on defendant's ad-
mission and other evidence that he entered
deceased’s store to commit robbery, held not
erroneous as expressing court’s opinion on
evidence, in view of subsequent part of
charge.

Only part of defendant’s testimony ap-
peared in record, but case on appeal stat-
ed that he testified to other matters re-
ferred to in charge and that all statements
therein with reference to his testimony
are correct, and court explicitly warned
jury in subsequent part of charge against
impression that he had any right to en-
tertain or express opinion regarding de-
fendant’s guilt or innocence,

9. Criminal law @=824(7).

Failure to instruct jury to scrutinize al-
leged accomplice’s testimony carefully held
not reversible error, where defendant prayed
no such instruction.

€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

Wass

=

aS

STATE v. WALLACE N.O. T17
165 S.E.

Appeal from Superior Court, Lee County;
Grady, Judge.

Harvey Wallace was convicted of first de-
gree murder, and he appeals.

No error.

Criminal action tried at the July term,
1932, of Lee superior court before Grady, J.,
and a jury upon an indictment charging the
prisoner with the murder of N. IH. Perry.
From a sentence of death by electrocution
pronounced upon a verdict for murder in
the first degree, the prisoner appealed to the
Supreme Court upon assigned error.

At the trial several witnesses were exam-
ined for the state, and the prisoner then took
the stand in his own behalf. No other testi-
mony was offered.

The evidence for the state tended to show
that the homicide was committed under the
following circumstances: N. H. Perry, the
deceased, was a storekeeper at Cumnock. He
was shot at his place of business on June 18,
1932, early in the morning. On the preced-
ing afternoon J. W.,Poe and the deceased
were sitting on the store porch when the
prisoner and two other colored men, one of
whom was Charlie Myers, passed by, “cutting
their eyes towards the store” and watching
the two who were on the poreh. That night
the colored men slept near by; and the next
morning just before 7 o’clock some of the
witnesses heard three or four pistol shots
which sounded as if they came from the store.
Miss Ruth Burns saw three colored men go
into the building a few minutes before the
shots were fired and come out immediately
afterwards. By other witnesses one of these
men was identified as Ilarvey Wallace, the
prisoner,

Miss Burns, the first person to go to the
Store, testified that she found Mr. Perry ly-
ing on the floor wounded and that he told her
he was going to die. He then said that a few
minutes before she came three colored men
entered the store, one calling for a can of
Peaches; that as the deceased reached up
to get the peaches the light-colored man said
to some one, “Hold on, Big Boy, do not come
up here”; that the deceased looked around
and saw Mr. Beal coming up the steps into
the store and the light-colored man was
speaking to him; that he (the light-colored
man) had a pistol in his hand and shot Mr.
Real as he came up the steps and killed him
instantly. The deceased then said to Miss
3urns, “They have already killed Mr. Beal
and they have got me; do what you can for
me.”

O. D, Burns testified that he heard the
Shots, ran to the store, and found Mr. Perry
with his head in the lap of his daughter,
Ruth Burns; that Mr. Perry said, “They
have killed Mr. Beal and they have got me;
Iam going to die.” The witness then said

that Mr. Perry told him that three persons
came into the store, colored men, one of them
a tall yellow man; that one of them called
for a can of peaches, and Mr. Perry reached
up to get the can and heard some one say,
“Hold on, Big Boy, do not come any fur-
ther’; that he looked back and saw the tall
yellow fellow with a pistol in his hands;
that he had just killed Mr. Beal who was
coming up the steps; and that as he (Mr.
Perry) turned_the yellow man shot him and
all three colored men ran out of the store.

In reference to the dying declarations, J.
W. Poe said: “I heard Mr. Perry say, ‘I am
going to die; they have already killed Mr.
Beal and they have got me; help me all you
can. I want you all to know just exactly
how it happened. Three strangers, colored
men, came into the store early this morning;
one was a tall, yellow, bright colored man, a
mulatto, and the other two were smaller and
much darker in color. The light colored man
entered first and I turned to reach up and
get a can of peaches. The tall yellow man
pressed an automatic pistol against me and
said, “Stick up your hands,” and I did SO;
about that time Mr. Beal entered and started
up the steps to the floor where I was, and the
yellow man turned and said to him, “Ilold
on Big Boy, don’t come up here.” Mr. Beal
did not stop and the colored man shot. him
twice and he died instantly. I turned to run
and he shot me twice and I fell; then all
three ran out of the front door.. I do not
know the names of the three colored men. It
was the tall, yellow, bright colored man who
did the shooting.’ Mr. Perry was shot in
the abdomen and was bleeding a great deal.
This was early Saturday morning and he
died Monday night following. I went with
him to the hospital and on the way there
he told me the same thing.”

Earnest Kennedy’s testimony is to this ef-
fect: That he went to the hospital with Mr,
Perry; that Mr. Perry told him on the way
that he was going to die; that he could not
get well, and told him that three colored men
came into the store and asked for some peach-
es; that as he reached to get the peaches he
heard one of them say to some one, “Do not
come any further.” At that time he saw a
gun in the man’s hand, and that the yellow
man shot Mr. Beal and killed him instantly ;
that he then turned and shot him (Mr. Perry)
twice.

Other evidence for the state tended to show
that a few days after the homicide the pris-
oner had a large army pistol, that he was
scen roaming about asking for food, and that
he told John McDougal he had killed the de-
ceased,

Charlie Myers said that he was with Har-
vey Wallace at the time of the killing; that
he got up with him in Raleigh and went to
Cumnock; that he slept on the ground out


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720 N.C.

ture of the trial, and the judge's failure to
caution. the jury with respect to the preju-
dice, partiality, or inclination of a witness
will not generally be held for reversible er-
ror, unless there be a request for such in-
struction.” State v. O’Neal, 187 N. C. 22, 120
S. FE. 817, 818; State y. Sauls, 190 N. C. 810,
130 S. E. 848.

We find no error in the record. The pris-
‘oner had the assistance of diligent counsel
whose service, rendered under assignment by
the court, is ample assurance that the pris-
ener has had the benefit of every available
defense.

No error.

:

THIGPEN et al. v. FARMERS’ BANKING &
TRUST CO. OF TARBORO et al.

No. 53.

Supreme Court of North Carolina.
- Oct. 12, 1932.

1. Executors and administrators @=9|,
Executor is only required to exercise dil-

igence which prudent and faithful man would

exercise in management of his own property.

2. Executors and administrators C496(2).

,Generally, in small estates, executor is
entitled to allowance of 5 per cent. on receipts
and on technical disbursements, but trouble
and time expended should be considered (C,
S. § 157).

3. Executors and administrators C495 (6).

Technical disbursements as basis for al-
lowance to executor forbid commissions on
payment of legacies and distributive shares
(C. S. § 157).

4. Reference ©=100(6).

Where reference was made by consent,
trial judge, on exceptions, may affirm, amend,
modify, set asid#, make additional findings,
and confirm, in whole or in part, or disaflirm,
referee’s report. :

5. Appeal and error €=1032(1).

Appellant has burden to show prejudi-
cial or reversible error, amounting to denial
of substantial justice.

Appeal from Superior Court, Edgecombe
County; Cranmer, Judge.

Action by Virginia Gray Thigpen and oth-
ers against the Farmers’ Banking & Trust
Company of Tarboro, as executors of W. J.
Thigpen, deceased, and others. From the

165 SOUTIT EASTERN REPORTER

judgement rendered, both plaintiffs and de-
fendants appeal.

Affirmed.

The judgment of the court below, in part,
is as follows:

“As set forth above, it is adjudged by ithe
Court that the defendants are liable to the
plaintiffs in the following sums:

$731.94 excess commissions received by de-

fendants.,
206.98 excess advancements made to crop-
pers,

282.25 value of crops left by Satterthwaite
on Hyman Farm and remaining
there March 28, 1930, being
amount found by the Referee to
be due and not excepted to.

64.27 from M. J. Ivey, or proceeds of sale
of personal property remaining

on Hyman Farm March 28, 1930,

amount found to be due by the

Referee and not excepted to.

$1,285.44 total.

“That these amounts should bear interest
from September 24, 1930, date of filing pur-
ported final account by executor.

“That it is therefore by the Court ordered,
considered and adjudged that the plaintiffs
do recover of the defendants, jointly and sev-
erally, the sum of One Thousand, Two Hun-
dred and Highty-five and 44/100 Dollars ($1,-
285.44), with interest on the same at the rate
of 6% per annum, until paid, from Septem-
ber 24, 1930, and that the plaintiffs do fur-
ther recover of the defendants, jointly and
severally, their costs of this action, including
the sum of $80.00 heretofore adyanced by the
plaintiffs at the request of the Referee on
account of stenographie work at the hearing
before the Referee.

“It is ordered and adjudged that W. J.
Bone, Referee, be and he is hereby allowed
the sum of $350.00 for his services, of which
amount the sum of $100.00 shall be paid by
the plaintiffs and the sum of $250.00 by the
defendants. E. H. Cranmer, Judge Presid-
ing.”

Various exceptions and assignments of er-
ror were made by both plaintiffs and defend-
ants, and all of the parties appealed to the
Supreme Court.

IJ. If, Philips, of Tarboro, for plaintiffs.

Geo, M. Fountain and Gilliam & Bond, all
of Tarboro, for defendants,

CLARKSON, J.

This is an action brought by plaintiffs, who
are the sole legatees and devisees, widow and
children, under the last will and testament of
Dr. W. J. Thigpen, against the Farmers’ Bank-
ing & Trust Company, executor under said

GFor other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

THIGPEN vy. FARMERS’ BANKING & TRUST CO. OF TARBORO N.C. 424
165 S.E,

last will and testament of the said Dr. W. J.
Thigpen. The said Farmers’ Bank & Trust
Company is now merged with the defendant
North Carolina Bank & Trust Company, de-
fendant. C. S. § 135; Fisher y. Trust Ce,
138 N.C. at page 98, 50 S. E. 592; Salisbury
Morris Plan Co, vy. McCanless, 193 N. C. 200,
136 S. I. 371; In re Estate of Wright, 200

(Ns. 620,158 S. E5192,

The matter was referred by the court be-
low to W. J. Bone, Esq. In the record we
find: “It is admitted by all parties that said
order of reference was duly and properly
made by consent of all parties.” The referee
found certain facts, and based his conclusions
of law tNereon. It is contended by plaintiffs
that he failed and omitted to find certain ma-
terial facts, among them, the following:
“That the total advancements in money over-
paid said croppers as aforesaid, from the date
of executor’s qualification to January 4, 1930,
amounted to $206.98, for which amount the
executor should be liable to account to the
plaintiffs.” This was sustained by the court
below and allowed the plaintiffs. Snipes vy.
Monds, 190 N. C. 190, 129 S. E. 413. There
was sufficient competent evidence to sustain
this finding of fact. Both the plaintiffs and
defendants made numerous exceptions and
assignments of error to the referee’s report,
and appealed to the superior court. The su-
perior court rendered judgment as set out
in the record, and both plaintiffs and defend-
ants made numerous exceptions and assign-
ments of error and appealed to the Supreme
Court.

The contentions of plaintiffs were bottomed
on the alleged negligent mismanagement of
the estate of Dr. W. J. Thigpen by the execu-
tor, the defendant Farmers’ Banking & Trust
Company, now merged with defendant North
Carolina Bank & Trust Company. The action
is in the nature of a bill In equity to sur-
charge and falsify the executor’s account.

Section 4 of the will is as follows: “It is
my will and desire that my executor proceed
to pay all debts against my estate as soon as
possible, and to that end is authorized to sell
such part of my estate, real or personal, with-
out order of court, publicly or privately, as
may be necessary to provide such funds, and
to close the administration of my said estate
as early as possible after my death.”

[1] In Gay v. Grant, 101 N. C. at page 209,
8 S. FE. 99, 106, 107, citing numerous author-
ities, the following observations are made:
“It has been often held that an administrator
is not an insurer of the estate committed to
his charge. If he exercises the diligence and
care in collecting and securing the assets of
the estate which a prudent and faithful man
would in the management of his own prop-
erty, and losses occur which he could not pre-
vent, he will not be charged with such losses.

165 S.F.—46

IIe is only required to be honest, faithful, and
diligent.”

In Moore y. Eure, 101 N. C, at page 16, 7
S. E. 471, 473, 9 Am. St. Rep. 17, we find the
following: “Good faith and the use of ordi-
nary care and reasonable diligence are all
that can be required of executors and admin-
istrators, whether resident or non-resident.
They are not insurers, De Berry ¥. lvey, &
Janes, Eq. [55 N. C.J 370: Nelson v. Hall, 5
Jones, Eq. [58 N. C.] 32.” The above principle
is well settled in this jurisdiction.

In regard to public officers, the rule is dif-
ferent. They are insurers, including such
losses as arise from the act of God or the pub-
lic enemy. New York Indemnity Co. y. Corp.
Comm., 197 N. C. at page 564, 150 S. E. 16.
The “hard rule upon public ofticers” has nev-
er been held to apply to executors and ad-
ministrators. Moore y. Eure, supra.

C. 8. § 157, in part, is as follows: “Execu-
tors, administrators and collectors shall be
entitled to a commission not exceeding five
per cent upon the amount of receipts and ex-
penditures which shall appear to be fairly
made in the course of administration, and
such allowance may-be retained out of the as-
Sets against creditors and all other persons
claiming an interest in the estate. In deter-
mining the allowance the trouble and time
expended in the management of the business
shall be considered,” ete. It will be noted
that the act says “not exceeding 5%.” Then
again, in determining the allowance 5 per
cent, “the trouble and time expended in the
management of the business shall be consid-
ered.”

In Peyton et al. y. Smith, 22 N, C. at page
348, 349, we find: “The defendant's excep-
tions, relate to the quantum of commissions
allowed to the executor: to the subject mat-
ter of commissions, und the mode of its com-
putation, It is so difficult for this court to
ascertain by any means in its power, what is
the reasonable rate of commissions called for
in any case, by the nature of the services, la-
bor and responsibility of the trustee, that it
is much disposed, in general,-to rely in this
respect on the judgment of the master, In
this case, however, the court perceives a safer
guide for the exercise of its discretion and
will follow that guide. It appears that on one
occasion when the account of the executor
was audited in the County Court of Warren,
and when the auditors recommended that
there should be allowed to the executor a
commission of 5 per centum on his receipts,
and 5 per centum on his disbursements, the
court, nevertheless, ordered that his commis-
sion should he limited to 4 per cent. on each.
The court, therefore, overrules the allowance
of Sper cent. as made by the master, and
sanctions the rate established by the County
Court.”

Tee PPT Nee THERE

5 Rae

:
:
|


WALLER, Dortch,

caeak Wo.
LNiAt fate
UPURY fh ii ris, |
1. i
OL _D
1 Tue. “JAW. ¥/

ence ee Three Negroes In

Jail Pending Probe |

' Fifty-One-Year-Old Store Ope-
-rator in Brantwood Hospital
Desperately Shot in Left Leg
—Officers Working on Case.

John Harris, 51, prominent merch- |
ant of Providence, was shot in the left }

;

leg by a masked assailant early Sun-. S
‘day night. |

William Fields and Odell Fields, ;
brothers, and Dorsey Waller, all col- |
ored, were arrested early Monday |
morning at their homes in the Provi- :
dence community and are being held |
for investigation in connection with ||
the crime. The Fields are sons of Ed}
Ficlds. Waller is about 40 years of age. .

Two pairs of run-down slippers and
an old shot gun were being held in

the sherifi's cffice as important links |

‘in solving the shooting of Mr. Harris.
; These were taken from the men ar-
rested Monday morning.

Mr. Harris was brought to Brant-
wood Hospital following the shooting
and an X-ray examination of his leg
, Monday hie, 2 i bone. Was shat-

ee. ne ete »

tel Leg Removed _

' From ‘John Harris

pea Waller and Willie Fields

, Held Without Privilege of
Bond — Two Others Released
After Questioning.

BoA RST, he,

i ek al sritie: pews Palaces cyt Hayate oh os “

: + Sheriff's officers yesterday contin-
. ued to linsx about Willie Fields, 17, and

Dorsey Waller, about 50, a chain of
* €vidence sufficient to convict them of
the shooting Sunday night of John
Harris at the latter’s store and filling
station at Providence.

i Mr. Harris was brought to srant-
: (wood Hospital suffering with a dan-

als

lasked Negro

4 dition. There had also been a verbal °*

black, 13, electrocuted North Carolina (Granville) on 8-2-1935,

te ee ee

neler “9

Merchant,

os

re ve the gunshot, ‘fired
| ration
} Sitting in his store ‘alone playing -

,his violin, Mr. Harris said some on
‘rapped on the door and he called
'‘Come in!” The door was held ajar by
one on the outside who called:

‘Put down that damn fiddle!’
| Mr. Harris said he obeyed and stood

up, thinking some one was playing a-
_ prank. As he arose, the barrel of a:
gun was poked into the door and Mr.
Harris declared he grabbed this with -
his hand and pushed it down. As he
did so, a shot was fired and he fell «
desp2rately shot.

The assailant, Mr. Harris asserted,.
was masxed. He declared murder must. 4
have been the motive, for there was |
no indication of an attempted robbery.

Mr. Harris said he knew of no per-
sonal enemies, though he recalled that
he had ordered one of the Fields ne-
grozs from his store a few days ago }
when he appeared in a drunken con-

~at lain’?

7 PR «+

encounter with Waller. |

Though they did not state which of ©
the trio, wheth:r cne or all, officers '
said Monday they had good evidence ‘
against the three negroes which are °
now under arrest. y

Mr. Harris said he was able to see-
enough of the features of the assail- |
ant to determine he was a negro. ;

Shoat we Held in 1

ats ~\gerous wound in his left-leg. Ig -ray. }

‘had dete?mined it impossible to’ save

. Harris did, as the door opened and

‘Store-kecper’s leg at a point between

.., Officers went to the scene. » Sunday .

“ff mee

dence
RIDAY ©
hooting

ing B iyi

examination was made Monday and .
the leg amputatazd by surgeons at the |
hespital Thursday morning after they

the member,

Mr. Harris, 51 years of age, was ¢
alone in the station at the time of
the shooting. He had been playing his
violin and was ordered by some one
cn the outside of the store to ‘put
down that damn fiddle’, which Mr.

the barrel wf a gun was pushed in
pointed in the direction of his body.

As Mr. Harris seized the barrel of
the gun, he was able to push it down-
ward toward the floor, but the shot
was fired just at a point to enter the

the hip and the knee. The bone was |
eplinterea. |


: it

strong.. He was the chair’s 154th!

[meaningless mumble by the sppli-f
jcation of the head straps,

—_—a

Two Shocks Needed _
Williams entered the death |

chamber at J9:40 oclock and the
thud of the current Striking his
“bodycame two minutes later. The]
‘little negro went quickly. It took a}:
‘total of three minutes and 34 sec= |
jonds to draw the life out of his |
body, the first shock lasting for two
minutes and 24 seconds. The second
Iwas brief, lasting one minute and
10 seconds, /
' A touch of the ghastly was add-
‘ed to Williams’ electrocution by
ithe involuntary moans and grunts
‘coming from .the unconscious form
;during the alectrocution. Apparent-
ly, Officials said, the current struck
‘his body as he inhaled a deep
jbreath, °
{ As th® bedy was thrown against
‘the strap across the chest by the
surging current, the pressure ap-
‘parently drove the air from the ne-
gro’s lungs, causing the plainly aus}
‘dible sounds.
Williams was convicted of crush- |
‘ing his wife’s head to a pulp with |
,an axe last December 30, after mak- \
jing several previous threats against |
her. The negro was convicted
largely on circumstantial evidence, !
ibut the case against him was }

s

victim ahd the 130th negro to die,

The presence of the woman at
the electrocutions was permitted
Solely because of her newspaper f
connection, Warden Honeycutt said. |
For several years, women have been |’
barred by custom from witnessing
the killings, Newspaper reporters, |

however, are never barred, the war-;
den said.

The negress took the electrocu- |

tions calmly, watching..both with
interest and no apparent alarm.
‘They were not nearly as bad as |

I had expected,’ she said afterward. |
‘I still don’t think it right or’ does
any good to take a man’s life. as
‘punishment, however.’

|
at 4
RAE ne tt tin - Be yertasaysenamemorv ome dt OO

,

pene > i.
ia Nea

by electrocution in North Carolina.! :

‘peritonitis set in, the mutilated leg

FRIDAY, JUNE 28, 1925 _

= so hinemaremia

Die In Electric

Chair Next Month

Supreme Court Affirms Death !

' Sentence and Negro Will
Go to Death July 13

The Supreme Court of North Car-
| Olina affirmed the death sentence
| Imposed upon Dorch Waller for the
— of John Harris last Decem-

er.

Waller, colored, Sentenced in
| Granville Superior court following
his conviction of the shooting of
Mr. Harris as the latter was seat-;
€d in his store early on a “Bunday
evening in late December, js abcut
'50 years of age. He has a wife and
‘several chlidren residing near Proya!
‘Idence, !
The court decision automatically’

Sets the date for the electrocution’
of Waller on ‘July 13,

Willie Fields, young negro boy, .

indicted with Waller for the Harris:
murder, was ‘found ‘Not guilty at.
the April term of Superior court.
when Waller, brought back from
State prison as a witness in the:
case, assumed all guilt for the mur-;
‘der, insisting that he had framed!
iFields into the murder.

| Mr. Harris, a prominent merch-. -

‘ant doing business at Providenc:
(Was seated alone in his store d.,
the night of the fatal shot. Before!”
‘his death, he told that a masked!
assailant came to the store, cursed!
him, pushed the barrel of ag gun?
into the door and fired, -the load|
taking effect in Mr. Harris’ leg. Mr. |
Harris attempted to defend him-
Self, seizing the barrel of the gun,
and shoving it toward the floor of
the building,

Brought to Brantwood hospital,

——s

,W&s amputated and Mr. Harris died:
on Thursday following the injury! -

‘Sunday.

i}

[

Siteneen —
Pops dy tw Mia - -

‘

"

hight and four men have been arrested, |
but two later released. Willie Mitch-
cll was arrested Wednesday and held
for qustioning, but later relcased aft-
er he was able to clear himself of im-
plication in the case. It was shown
that he had been with Willie Fields
land Dorsey Waller during the after-
noon Sunday. Odell Fields, brother of
Willie, has also been released from
custcdy.

Deputies Lee Yancey and W. T.
Beasley have beon constantly at work
on the ca7? since Sunday night. They
Mave linked together bits of evidence

hich is constantly drawing facts in
the case to light.

Two shot guns, two pairs of shoes, .
one of them with a patch which was
‘isible in the muddy path along which
the assailunts walked after the shoot-
ing, and a piece of paper which is /
thought to have been used as the
mask by the man who fired the shot, |
jave bzen located by officers. 3

No date has been set for a prelim-
inary hearing in the charges against
two negroes, pending further

j
4
5
4
3

%

John H. Harris Is
Buried Saturda

FUE. LEA IF SS |

Funeral for Prominent Merch-

ant, Victim of Negro Assail-
ant, Largely Attended

John Hunter Harris, 53, passed
away in Brantwood hospital at 1:35
Friday morning where he was taken
Sunday night, December 30, after be-

ing shot in the left leg. by a masked;

assailant who visited the Harris store
at Providence about 7 o'clock.

Death was attributed to peritonitis.
His leg had been amputated Thurs-
Fday morning in a vain effort to save
qhis life.

Mr. Harris was cheerful up until a
few hours before his death, though
he had lost a great amount of blood

fter the shooting, the load from 4

hotgun at clos? range having enter-

d his leg between the knee and hip.

The funeral was conducted Saturday

fternoon at 2:30 o’clock at. Provi-

ence Baptist church of which Mr.

arris was a member. Interment was
"in the cemetery there. Rev. G. Van
Stevens, pastor of the Providence Bap-
ist church, officiated at the service.
‘4 Surviving are the widow, Mrs. Bess-~
fe Jones Harris, one son, Arnom,

<<

“3

‘elle Arrington of Rowland.

4 Mr. Harris was a native of Granz
fille county and had been engaged in
jarming in the Providence community, :

r many years. About five years ago,
mercantile business
With a general line of merchandise

e entered the

- , premises of the
, .Christmas holidays when they appear-

a

of!
“SIenderson, two daughters, Mrs. Mary;
Yrazicr of Providence and Mrs. Es-)

[vestigation and also the outcome o
ithe condition of Mr. Harris, who lost
considerable blood and is_ suffering
from shock.

The Fields negro has never been in
in,

‘court here, but Waller has been

| court several times charged with

| ' drunkenness or with violation of the

prohibition laws. It was said they
‘had a feeling’ against Mr. Harris aft-
er he had ordered them from _ the
stor2 during the

ed there under the influence of whis-

. key.

The fact that no effort was made
to rob Mr. Harris or the store after
the shooting led officers to believe

that murder was in the minds of the.

' assailants.

Not since the murder of Otha Lyon
at his filling station nearly three
'y€ars ago by negroes who pretended
they wanted to buy gasoline has the
county had such a bold attempt. to.,

{take the life of one in this county.

Officers appeared confident yester-

i

‘and had conducted a filling station in|
connection with the store, the largest
at Providence.

The tragic death cast a pall of

gloom over the entire community and
section where he was so well known.
; Active pallbearers were Frank Dan-
‘lel, Joe Satterwhite, Carl Piper, Amos
,Clement, Graham Daniel, Joe Wheeler,
‘Belvin Eakes, Jim Howell and Thad
Cary.

Honorary pallbearers were Jack
Clement, Hal Holman, Joe Baird, J.
W. Horner, O. B. Breedlove, Buck
Bullock, Rufus Boyd, M. L. Oakley,
E. S. Jenkins, Harry Daniel, S. H.
Brinkley, Harper Renn and O IL
Bowling.

~~

| Dortch Waller Declares He’
| Framed Fields — Asserts!
His Own Innocence of the:

Crime. APL, $2, eF 35> «

At the close of the evidence for .
_the defense, Attorney T. Lanier
| moved for a directed verdict of
'not guilty Thursday and Fields

4

7
{
walked out of the court room a ,

free man. Fields went back to his ©
farming near Providence after 4
| having spent the past three 4

, months in jaul here and in State;
prison, Raleigh. 4
Dorch Waller, the last witness |
for the defense to take the stand,
testified that he had only a short
S time to live, that he was the vic- |
> tim of a frame-up, and the he
had framed Fields in the case and
that Fields was not guilty of the
| crime, Waller denied his guilt.
- -- 6 = * » Lb |

ee ee ea

|

: |
.. ; day that the guilty would be brought j
a into the court. me,

\

a


=~ we -

‘

Providence storekeeper, who was!
fatally shot on the night of Decem-|

ber 31, 1934.

Waller, 43-year-old negro farm-|.
er, was one of two men to die in|
ithe electric chair Friday morning.|

e was yisibly frightened as he}
walked erect into the white-washed!
death chamber and calmly took
his seat to be strapped against the’
}metal that would send 2,300 volts
jot electricity through his brown
hits pe,

It- took just two minutes and 12
seconds to take Walicr’s life. It was
one of the few times in history and
the only time in recent years that
one shock had been sufficient to,
kill a man, %.* a

Witnessing the electrocution of

/ Waller were 13 persons, : including
Deputies L. J. Yancey, W. T.’Beas-
ley and L. D. Franklin of Gran-
Ville county, and Patrolman J. L.:
Cash of the Oxford poe depart-
jment. a }

Taft Williams, a “young ~ negro, |

' tollowed Waller to the chair, paying |
‘with his life for the brutal axe-}
" slaying of his wife, Blanche. wil- |
,liams nervously protested his in-
\mocence as he died.
3 Woman Is Present |
For the first time in more than a
‘decade a woman witnessed an elec-
, trocution. Olivia Glascoe, nag
‘University student and society edi-'
tor of the Carolina Tribune, Negro.
newspaper, stood calmly in the;
chamber as the two men went to;
the chair. It was the first time inj
‘history a woman has seen a double}
electrocution.
Waller, the 153rd victim of the
,chair in its 25 years of activity,
‘came into the death chamber, as
‘calmly as any man ever did, glanc-
Saal ing casually around before sitting
\ re: Me in the chair. Asked by Warden H.
\ / SS tf. Honeycutt if he had any state-
: ‘ment to make, Waller thanked the

‘Lord for his many blessings and

'for the religious workers on Death

Row before denying his guilt of

‘the crime for which he died.

‘I don’t_have any hard feelings

_s
od

Doritch Waller Goes to

His Death i in Hot Seat
i TUESDAY AUGOST LISS”

‘ Dorch Waller died in the electric |
chair in Raleigh Friday morning ;
dneying he killed John Harris, |

‘or malice toward anybody,’ he said,
, but I am an innocent man san
Tt was cfAught on the wrong evi-
‘dence.’
| As attendants tightened the strap
| across his eyes, Waller protested
‘you're mashing it too hard.’ They
were his last words.

. Death Is Quick r

' The negro hadentered the cham-|
‘ber at 10:27 o’clock and the current , 4
| Struck his body {sharp at 10:30.
' For two minutes and 12 seconds,
the current, with executioner R. L.
}Bridges varying the amperage only
occasionally, tugged at the life with-
in the body which officials said was
one of fhe finest ever sent to State’s
Prison. At 10:34 after a careful ex-
jamination, Dr. G. S. Coleman, pris-
ion physician, said the man was
dead.
; Waller was convicted of the mur-.
der at the February term of court |
jand sentenced to die in the electric

chair. Willie Fields, involved with
Waller, was tried at the April term

and was freed on the evidence of
Waller that he himself shot “|

Harris and that Fields knew noth-
ing of the shooting.

The negro was convicted of slay-
ing Harris after an argument in|
;which the storekeeper ordered him
out of the store. The state charged
‘that Waller left the store, went to
| his home and procured a gun, with
,;which he returned and shot thru
the store door, striking Harris in
| the thigh. Harris died a few days
ilater.

None of the calm which marked |
Waller came to Williams in his last
‘minutes, but the younger negro ap-}
‘peared to be excited rather than
ifrightened.

‘I got to go home to see my Je-|
sus today,’ he said loudly in a shaky
voice as he sat in the electric chair.
“I’ve got to see my Savior. He’s the
Man I’m living for.’

Warden Honeycutt interrupted |
the negro’s religous fervor to ask if
he had any last statement to make. |

‘I ain’t guilty of my crime; no, |
I ain’t guilty of that,’ the negro |
replied, his voice trefnbling.
| Williams had launched into ah}
‘disjointed plea that those present
[Pray for his mother, sister and
jbrother, a plea. changed into. ito. af