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and closed. While Fox was in the store he
just sat at the window in the corner of the
building, looking out the window, and didn’t
have anything to say. The window he was
sitting at was on the street side. The west
side of the street looking west. There is noth-
ing on. the other side but the store where
Jesse Taylor kept. Fox was employed at one
time by Jesse Taylor. He stopped work
about three weeks before Jesse Taylor’s death.
I saw another delivery boy working for Mr.
Taylor afterwards, On the morning of May
26th, I opened my place of business, as near
as I can get at, about seven o’clock. Jesse

“Taylor’s body was found about ten o'clock, I

went over. The body was lying, with the head
to one side, and I saw blood here and here
(indicating) and I went right back.”
Clarence Taylor testified: “I identified this
hook on yesterday as my brother’s bank book.
I know my brother’s handwriting. Yes, that
is his handwriting and his figures. I found
that deposit slip on Sunday morning that my
brother was found dead in the store on the
counter near the cash register. I forget what
day we found the book, but it was found in
the desk where the money bag was, I saw
my brother make out the deposit slip that
Saturday night before he was found dead
Sunday morning. (State offers in evidence
the deposit slip and bank book and the pistol
and two bullets about which Dr. Large testi-
fied.) I saw my brother checking up Satur-
day night but didn’t know how much he had
until I seen the deposit slip. I never saw that
beffre Sunday morning. I was looking at
my brother when he made out the slip and put
it in the bank book, I was three or four feet
from him. I do not know the exact figures.
J found it a little after ten o’clock Sunday
morning. I left the store Saturday night
nround one or one-fifteen. He put the money
in the bank book in a bag and tied it up. I
don’t know what my brother did in respect
to the slip after I left. I know what the slip
called for; I didn’t count the money and
couldn’t tell you. That is the bag. He
had a, key ring on his belt and the door key
was on there, but what was on the other keys
I don’t know, I neyer saw them but one time.
I have made a_search in the store for them
but have been unable to find them. (State of-
fers in evidence the bag.) I found the bag
in the desk Wednesday morning I believe.”
George Planter: That he lived on Atlantic
avenue in Rocky Mount, and made hogsheads,
Ile identified the 41 caliber Colt revolver—
the gun previously identified by the father
and two brothers of Jesse Taylor which the
ather had loaned Jesse Taylor. That de-
fendant came to his house Sunday morning
before last between 3 and +4 o'clock and
knocked on the door; he was in bed. After
some conversation, he pulled out the revolver
and handed it to him and said keep it until he
called for it, Tater on the same morning he
tried to buy the pistol on credit from Tox.

149 SOUTH EASTERN REPORTER

The revolver had five bullets in it and six
chambers, but there was no empty shell in
it. Defendant did not tell where he got it
or why he wanted him to keep it. The first
time he came in a Hudson ear like Ben John-
son drives; the second time in an open Ford.
3en Johnson: Wasa taxi driver and lived
in Rocky Mount. Had known defendant 2 or
8 years. He was parked on the morning of
May 26th at Douglass’ drug store. Fox said
he wanted him to take him home. He carried
defendant to various places, one Frank Wil-
liams accompanying the defendant: (1) To
defendant’s home on Penn. avenue; (2) about
five minutes afterwards to George Planters:
¥8) to Easter Ricks’ house; (4) to Wimberly's
Pressing Club; (5) to Myrtle avenue; (6) to
Rosa B. Ellis’ house; then to Douglass’ drug
store, and he and Williams got out. That
was about 3:30 o’clock. Fox, when he went
to the Pressing Club, got some dresses and
carried them to Rosa B. Ellis’. He did not
know Planter and heard no conversation be-
tween them. He was paid $1.05 for the trip.
John Jones: Liyed in Rocky Mount and
worked for the Dodge people. He knew de-
fendant, and on Saturday morning, May 25th.
defendant came by and wanted to buy an old
automobile from him. He for several months
was after him to buy an old car. I told him
there was an old Ford he could have for
$20. He looked at it and liked it, and said
he would come after it when he got the
money. Told him he had better hurry, as he
could not have it unless he came by 6:80 that
evening. At ten minutes to 6 he came back
and said he did not have the money, but ex-
pected to get it pretty soon. Next morning
about 5:30 he came to witness’ house and
awoke him and everybody else in his house,
and asked him if he could get the car that
morning. Witness said he thought so, and
asked: him if he had the money, and he said
“Yes,” and pulled out two $10 Dbills—?20.
They went over to the foreman’s, and he told
them he would get down at the place of busi-
ness about 8 o’clock, and that defendant could
get the car. In going to the foreman’s, de-
fendant “went by the police station and
through the publie streets of Rocky Mount,
where he could be seen by both white and
colored, and the officers of the law. Te did
not scem excited, nor did he try to hide or
conceal himself.” Defendant “had a little lid-
uor in his pocket when he came to me that
morning, and I told him he had better throw
it away because my Boss didn’t like liquor
and I didn’t want him to see any around,
When he came to my house at five-thirty be
didn’t look like he had drunk a drop.”
Clarence Griffin: Drove a transfer In
Rocky Mount. About 7 o'clock, May 26th, in
front of Dunbar's Café, defendant hired wit
ness to take him across town to Rosa B. F)-
lis’ house; he stayed there about five min-
utes, and he brought him back to the transfer
shed and put him off at Burnette’s drug store-

STATE v. FOX N.C. 737
149 S.E.

Ye paid him 75 cents and that was all the
money he saw him have. Went through the
heart of Rocky Mount, colored section, and
could be seen by them. Went in public places,
and defendant acted perfectly natural, did not
seem in a hurry or seared. He was_ not
flourishing money around like a man that
had plenty of it.

Alexander Grant: Lived in Rocky Mount,
and had known defendant 3 or 4 years. Met
defendant Sunday morning, May 26th, at
Douglass’ drug store, and had just come out
of Dunbar's Café and had.:a lunch wrapped up.
Drove up and asked me if I wanted to go to
Wilson. Told him yes, but I had no money,
and defendant said he would take care of that
part. He and another colored boy went in
the Ford that defendant told him he had
bought that morning for $20. Left Rock
Mount 10 minutes to 11 o’elock. Before they
left Rocky Mount defendant showed him and
the boy $7; before they got to Sharpsburg
defendant showed them $55; said he got the
money from his mother, who had sold some
Liberty bonds. Said he was going to his
aunt’s to get some money left him by a rela-
tive, and he had just come of age and could
get it. Stopped at Sharpsburg on the way to
Wilson. Went to Stantonsburg and Paul
Chapel, where defendant’s aunt lived. They
went to service. Left the chapel about 4:30
p. m., and went to Snow Hill. Returned to
Wilson at 7.30; ate supper in a café. After
supper defendant called up Rosa B. (Ellis)
over ‘phone at Rocky Mount. “That Fox aft-
erwards told witness that the girl said, ‘I
know something on you,’ and that Fox asked
her to meet him at Elm City. That they went
to Elm City but that Rosa B. did not meet
them. That they stayed in Wilson that night.
That they were having constant car trouble.
They stayed that night in a hotel. That on
Monday morning they decided to go to Green-
ville. On the way to Greenville, they stopped
in Farmville. At Farmville they parked the
ear near a telegraph office, and that witness
sent a telegram to his mother at Rocky
Mount. That the other party sent another
telegram to someone in Rocky Mount. That
Ernest Fox sent a telegram to Rosa B. at
Rocky Mount. ‘I seen the man write it.’
Question: What did he say to her? (De-
fendant objects.) By the Court: Did you
hear Fox tell the man what to say in the tele-
gram? Answer: Yes, sir. Question: Was
that in the telegram what Fox said? An-
swer: Ile said ‘I like to know what you are
talking about,’ and said to wire him back in
care Greenville Western Union. This was
about eleven o’clock Monday morning. We
then struck out for Greenville. We drove
around town, and. he got out and parked his
car about a block from the Western Union,
and went to the Western Union to see if the
telegram came. It was twenty minutes to
twelve o’clock then, and the telegram hadn't
come. Me had a suit pressed. Witness then

149 S.E.—47

proceeds to tell Fox's movements around
Greenville, and about the witness and the wit-
ness’ companion, aside from Fox, spending
Monday night in an automobile in Greenville.
The next time we saw him he was under ar-
rest in Greenville. That was next morning
—Tuesday.”

Dr. H. Lee Large was admitted to be a
medical expert. He examined the body of
Jesse Taylor on the Sunday morning near 11
o'clock, The body was on a cot in the north-
west corner of the store building. The body
was lying on the cot on the right side. He
had a bullet wound which entered on the left
side or under the left side of his jaw, barely
missed the jawbone, ran slightly backward
and across to enter the base of the skull be-
tween the ears. (The witness is here quali-
fied, and the court finds as a fact that the wit-
ness is an expert in judging the caliber of a
pistol and the size of a pistol ball.) ‘“Ques-
tion: Have you an opinion satisfactory to
yourself on this question, as to whether or
not Jesse Taylor, the wound which was found
in his neck, was inflicted while he was lying
or standing up? (Defendant objects, objec-
tion overruled, and defendant excepts.) An-
swer: Yes, sir, my opinion is that he was ly-
ing down. Question: I ask you to explain
so far as you can why you say that. (Defend-
ant objects, objection overruled and defend-
ant excepts.) -Answer: First the range of the
bullet from its point of entry to its final
point of lodging in the head of this man was
such that would have made it impossible for
a man to have been in a standing position
when the shot was fired, and secondly, the
condition of the body was such-as to indicate
that the body, in other words, this man had
never made any voluntary movement from
the time the shot was fired, and it is borne out
by the wound. The wound was such as would
have caused immediate paralysis of the body,
after the bullet was fired. There was no oth-
er wound on his body.” Dr. Large further
produced the bullet taken from Jesse Tay-
lor’s body, and testified it was in three pieces
and was a .41 caliber bullet.

Witnesses P. C. Zimmerman and R. O.
Watson, police officer of Rocky Mount and
deputy sheriff, respectively, were examined
as witnesses for the state. When interrogat-
ed relative to an alleged confession of the de-
fendant, the defendant objected; whereupon
said witnesses were examined in the absence
of the jury with the view of determining the
competency of their testimony relative to
said confession. Upon the evidence clicited,
in the absence of the jury, the court found
as facts: That the statements alleged to have
been made by the defendant, both written
and oral, in the nature of a confession, were
induced either by fear or hope, and that such
statements as so allezed to have been made
by the defendant were not voluntary in their
nature. Upon such findings by his honor,
upon motion of defendant, the evidence of


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Ptni%

OMIVERSATY OF,

138 Nec,

witnesses Zimmerman and Watson, relating
to the alleged confessions, was excluded.

In the absence of the jury, the following
witnesses were examined: George T. Sugg,
defendant, Ernest Fox, R. O. Watson, 8. P.
Marler, to determine the competency or in-
competency of the witness George T. Sugg.

Upon the conclusion of the evidence, the
court below found that as a fact the state-
ment made by the witness George T. Sugg,
while said witnesses were inspecting the jail
along with other grand jurors, was a volun-
tary statement and rules the same admissible
in evidence. (Defendant objects; overruled;
defendant excepts.)

In the presence of the jury:

George Sugg: “I was a member of the
Grand Jury during the present six months.
I came on the first of January and go
through the year. I went to the jail on Mon-
day afternoon and made an inspection. I
saw this fellow here but I didn’t know who
he was. I asked him what he was doing in
there and what he was in there for and he
told me he was in there for killing a man,
and I said ‘For what? and he said ‘For his
money.’ I asked ‘hime had he been in trouble
before and he said two or three times. TI
didwt ask him anything else. I did not put
him in any fear to tell. I did not know who
he was when I asked him that; I did not
know that he was the man that was alleged
to have killed Jesse Taylor. I had been up-
stairs. I went into all the rooms. All of the
-Grand Jury came in the cell where Ernest
Fox was confined, that could get in at one
time. I am not sure about that though.
Some of the Grand Jury were ahead of us,
we were going all over the house. I don't
remember who was with me at the time of
the conversation. There were cight or ten
or twelve people in there. We did not com-
municate to Ernest Fox what we were in

there for. I did not have any idea that this

was the man that was accused of the Rocky

Mount murder. That’s what he said, ‘For

killing @ man, and I said ‘For what? and

he said ‘His money’. I asked other prisoners
in the jail what they were in there for, some
white and some colored. I knew nothing
about the previous conversations other peo-
ple had with Ernest Fox. I had never seen
him before that day. We were in there about

four o'clock. That was all he said to me. I

don't remember when I first told what tran-

spired between us. I haven't told an oflicer,

because I left here and went home. I did

not communicate this conversation to any of-

ficer. The sheriff served subpoena on me this
morning.”

P. C. Zimmerman’s testimony was a nar-
rative of a conversation he had with defend-
ant as to his whereabouts on the night of the
killing. About. 12 o'clock defendant and
Frank Williams had purchased a half gallon
of whisky for $2.50 from Dancy Ward on

149 SOUTIT EASTERN REPORTER

Langley road the other side of the A. C. I.
Company’s pump station. He paid $1.75, Wil-
liams the balance, and they came to town to
the Douglass building, went in Wimberly’s
Pressing Club, got some clothes, and Jien
Johnson took him home at 2 o'clock Sunday
morning, and’ was there until 6 o'clock and
went to Douglass building, went about 9:45
to Wilson. He then narrated where defend-
ant told him he went.’ “I asked him what he
paid for the car and he said $20.00. <I asked
him where he got the’ money to buy the car
and he said, he won it gambling and I asked
him where and he said ‘Langley Road in a
tobaeco barn.’ I asked him how much money
he had when he bought the ear and he said
$43.00, and I asked him’ how much he had
when he entered the game and he said $8.00,
and I asked him how much he won and he-
hesitated, and I said ‘Did you win $35.007
and he said ‘Yes. And I asked him how
much money did he have in his pocket after
he bought that automobile, and he said *$45.-
00,’ and then I asked him where did he get
the money to buy the car and he said Jim
Whitley gave him $4.00, his brother Harvey
Fox, Jr., who is just a small fellow gave him
$8.00 and he said he had $8.00' at the house
he had saved for the purpose of buying a car.
I then asked him if he had any more money
from Sunday morning until the time he was
arrested except the $43.00 in question, and
he said ‘No,’ that was all he had. * * *
I asked him where he was at twelve o'clock
and he said at Daney Ward's buying whis-
ky. I asked him where he was at 1:30 and
he said ‘In a tobacco barn Langley Road
gambling.’ I asked him who was in the game
and he said ‘Nathan Speight and Charles
Woodard and four others.” I asked him
where he was at 2:15 and he said ‘In the to-
baceo barn gambling.’ I asked him where he
was at 3:30 and he said he was still in the
tobacco barn gambling. I asked him where
he was at 5 o’clock, and he said he was
at home. I asked him what time he got up
and he said about 6 o'clock. I then asked
him if he knew Jesse Taylor and he said he
did, and I asked him did he ever work for
him and he said he did. I asked him how
long, and he said three weeks. I asked him
did he ever see Jesse's gun, and he said he
did before he moved from Pittman’s store to
the place where he died. I asked him if he
had ever spent the night in the store with
Jesse Taylor on a pallet on the floor, and he
said he absolutely had not; that he had nev-
er spent a night in there. There were Ome
more questions but I can’t recall them risht
now.”
The defendant introduced no evidence.

George M. Fountain, of Tarboro, and T
T. Thorne, of Rocky Mount, for appellant. ‘

D. G. Brummitt, Atty. Gen., and Frank
Nash, Asst. Atty. Gen., for the State.

STATE v. FOX N.O. 739
149 S.E.

CLARKSON, J. [1] The evidence, from
the record, is sufficient, with or without the
confession of defendant, to be submitted to
the jury to sustain a verdict of murder in
the first degree. State y. Miller, 197 N. ©.
445, 149 S. E. 590.

[2] The defendant excepts and assigns er-
ror to his honor’s permitting the witness
Grant to testify as to the contents of the
telegram sent by defendant, Fox, to Rosa B.
Ellis. The witness, however, was standing
by and heard what Fox said. Not only this,
but he saw the man write down on the blank
what Fox said: “I seen the man write it.”
Me said, “I like to know what you are talk-
ing about,” and to wire him care of Green-
ville Western Union. It was no doubt intro-
duced as some evidence to show Fox’s anxie-
ty as to what Rosa B. Ellis meant when she
told him over the telephone that “I know
something on you.” This was admissible for
what it was worth—the probative force was
for the jury.

[3] The defendant further excepts and as-
signs error: That it was incompetent “to per-
mit State’s witness, Dr. Large, to testify that
the deceased, Jesse Taylor, was, in his opin-
ion, lying down when he received the fatal
wound, and to further testify as to his rea-
sons as it invades the province of the jury.”
We cannot so hold.

In State v. Jones, 68 N. ©. at page 444, it
is said: “The only point made was as to the
competency of the opinion of the physician
who was examined for the State, as td the
cause of the death of the deceased, and of his
posture and position at the time he was shot.
It was not denied that the opinion was com-
petent as to the cause of death, but it was
insisted that it was incompetent as to the
posture and position. We suppose an expert
might express an opinion of the posture and
position from the range of the shot, and oth-
er circumstances.”

In McManus v. R. R., 174 N. GC. at page
737, 94 S. E. 455, 457, the following observa-
tions are made: “It was also urged for er-
ror that Dr. McCoy, a witness for plaintiff,
who had made a professional examination of
the intestate at the time, was allowed over
defendant’s objection to testify that: ‘From
the nature, condition, and position of the
wounds, he was of opinion that the intestate
was lying down at the time the same was in-
flicted.’ It will be noted that this witness,
admitted to be an expert, spoke from a pro-
fessional and personal examination of the in-
testate and the answer, to our minds, was
clearly within the domain of expert opinion.
Both question and answer are approved and
upheld we think in Ferebee v. R. R., 167 N.
C, 290, 83 S. E. 360; Parrish v. R. R., 146
N. C. 125, 59 S. E. 348; State v. Jones, 68
N. C. 443." Shaw v. IJandle Co., 188 N. C.
222, 124 S. E. 325; Butler v. Fertilizer
Works, 195 N. C 409, 142 8. E. 483; Street

v

v. Coal Co., 196 N. C. 178, 145 S. E. 11. See
State v. Carr, 196 N. O. 129, 144 S. E. 698.

[4] The most serious contention of defend-
ant was the admission of the testimony of
the Grand Juror Sugg, who visited the jail
for the purpose of inspection. The defend-
ant’s confessions to the officers, made prior
to that time, were ruled out ‘on the ground
that defendant was induced to make them
from fear or hope. The court below, on the
voir dire, found that they “were induced ei-
ther by fear or hope and that such state
ments as so alleged to have been made by de-
fendant were not voluntary in their nature.”
These confessions to the officers were, from
the findings of the court, properly excluded,
and the court below gave the rule that is fol-
lowed in all civilized nations. :

In State v. Roberts, 12 N. C. 259, at pages
261, 262, relied on by defendant, the law is
thus stated by Henderson, J.: “Confessions
are either voluntary or involuntary. They
are called voluntary when made neither un-
der the influence of hope or fear, but are at-
tributable to that love of truth which pre-
dominates in the breast of every man, not
operated upon by other motives more pow-
erful with him, and which, it is said, in the
perfectly good man, cannot be counteryailed.
These confessions are the highest evidences
of truth, even in cases affecting life. But it
is said, and said with truth, that confessions
induced by hope, or extorted by fear, are, of
all kinds of evidence, the least to be relied
on, and are therefore entirely to be rejected.
It seems to be admitted in this case that the
confessions first made, were of that charac-
ter, and were therefore rejected; but that
being repeated to the same person some time
afterwards, they lost their original charac-
ter, assuming that of free and voluntary ones,
and became evidences of the truth. But for
what reason I am at a loss to conceive. How
or whence does it appear that the motives
which induced the first confession had ceased
to operate when it was repeated? It is not
incumbent on the prisoner to show that they
resulted from the same motives. It is pre-
Sumed that they did, and evidence of the
most irrefragable kind should be produced to
show that they did not. It is sufficient that
they may proceed from the same cause. 4
Starkie 49.”

In State v. Fisher, 51 N. C. page 478, Bat-
tle, J., shows that the reference made by
Henderson, J., to Starkie, was from Kd. 1424,
p. 49. The learned judge says that “in a sub-
sequent edition (that of 1842, p. 36), [Starkie]
somewhat modifies the rule, and says, ‘where
a confession has once been induced by such
means, all subsequent admissions of the
same, or like facts must be rejected if they
have resulted from the same influence,’ ”
State v. George, 50 N. C. 233; State v. Lew-
horne, 66 N. C. 638; State v. Ellis, 97 N. G
447, 2.8. E, 525; State vy, Harrison, 115 N.


gnive

{ GF ALAGAR

i

KSi

734 N.C.

upon the platform of plaintif€ and removed
therefrom cotton for the purpose of transport-
ing or shipping said cotton to other points.
In procuring the cotton, the defendant used a
truck and trailer. The plaintiff notified the
defendant to stay off its premises, as it was
a competitor and had no right to come upon
plaintiff’s property with trucks and trailers to
remove cotton from its platform. The de-
fendant refused to remain off plaintiff’s land
and platform, but persisted in coming there
and removing and shipping cotton, contend-
ing that the owners of cotton had authorized
the entry upon plaintiff’s land for the pur-
pose aforesaid; whereupon plaintiff applied
for an injunction to restrain further trespass
upon its property by the defendant and its
agents. Thereafter the restraining order was
dissolved, and the plaintiff appealed. The ap-
peal was disposed of in 195 N. C. 305, 141 8.
FE. S82. Subsequently the question came on
for hearing upon its merits. The following
issues were submitted to the jury:

“(1) Did the defendant commit a trespass in
going upon the premises of the plaintiff rail-
road company and hauling away the cotton
of Speight & Company, and others, as alleged?

“(2) What damages has the defendant Rap-
id Transit Company sustained by reason of
the injunction issued and continued against
said defendant?”

The trial judge directed the jury to an-
swer the first issue “Yes” and the second is-
sue. “No.”

From judgment upon the verdict, the de-

fendant appealed.

J. Con Lanier and Albion Dunn, both of
Greenville, for appellant.

F. G. James & Son, of Greenville, for appel-
lee.

BROGDEN, J. The cotton platform owned
by the plaintiff was private property, and, so
far as the evidence discloses, was not subject
to any public duty or obligation. Various
parties in Greenville had been permitted by
the plaintiff to bring cotton to the platform
where the official weigher was stationed. The
cotton weigher was employed by the county,
and there was no contract between the county
and the plaintiff for using the platform, but
such platform was used merely by the license
and permission of plaintiff. Certain cotton
dealers of Greenville purchased cotton upon
the platform and thereafter authorized the
defendant to proceed to the platform with a
truck and trailers to remove said cotton, not
for the purpose of delivering same to the
owners, but for the purpose of shipping and,
transporting it as a competitor of the plain-
tiff.

{1, 2] The plaintiff relies upon the rule of
law deelared by a majority of the courts to
the effect that a railroad company, so long
as it affords reasonable accommodation to
the public, may grant to one person the ex-

149 SOUTH EASTERN REPORTER

elusive privilege of entering its stations and
grounds for the purpose of soliciting patron-
age. The principle is tersely expressed in
Delaware, L. & W. R. Co. v. Town of Morris-
town, 276 U. S. 182, 48 S. Ct. 276, 279, 72 L.
Ed. 523: “There was no duty upon petitioner
to accord to other taxicabmen the use of its
lands simply. because it had granted Welsh
the privileges specified in its contract with
him. Petitioner is not bound to permit per-
sons having no business with it to enter its
trains, stations or grounds to solicit trade or
patronage for themselves; they have no right
to use its property to carry on their own busi-
ness.” Black & White Taxicab & T. Co. v.
Brown & Yellow Taxicab & T. Co., 276 U. S.
518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A. L. R.
426; Thompson’s Express & Storage Co. vy.
Mount, 91N. J. lq. 497, 111 A.173,15 A. L.R
551. These decisions, of course, have a general

application to the question involved in this ap- :

peal, but do not decide the exact point pre-
sented. The controlling question upon this
record is whether the owner of cotton can
send an agent to the platform of the plaintif
and remoye the cotton for shipment to other
points, when the agent so selected is himself 2
competitor of the plaintiff. Obviously, this
would amount to permitting the competitor to
use plaintiff’s property in order to carry on
his own business. Furthermore, the evidence
tends to show that the plaintiff permitted the
owners of cotton to use the platform for stor-
ing the same, which, of course, conferred the
right upon such owners to enter the premises
and remove the property. Clearly, this was a
mere license. Therefore, when the defendant
entered upon the premises of the plaintiff, not
for the purpose of delivering the cotton to
the owner, but for the purpose of shipping and
transporting it as a competitor of the plain-
tiff, there was an abuse of the license, for the
reason that the license was extended to a
point far beyond that which was essential to
the enjoyment of the right conferred by the
railroad upon the owners of the cotton. In
this aspect of the law the defendant became
a trespasser ab initio. Thus in Bear v. Har-
ris, 118 N. C. 476, 24S. E. 364, the defendant
purchased the cargo of a vessel upon condition
that the same should be removed within 50
days. Thereupon the defendant moved the
vessel about two miles down the river in or-
der to procure a more convenient landinz
place for the cargo. The vessel was caught
in a storm and damaged. The plaintitt
brought suit against the defendant for dam-
ages, and the defendant took the position
that, as he had a right to enter the vessel and
reniove the cargo, he was not a trespasser.
and therefore not Hable. The court said:
“The right to enter the boat at the wharf
within thirty days, and remove the cargo,
was not an implied license to remove the
schooner to another place for convenience
and unload. It was not a necessity, but
was the abuse of a legal license, and

STATE vy. FOX N.C. 735
149 S.E.

made the defendant a trespasser ab initio.”
Again in Gardner y. Rowland, 24 N. CG. 247,
the plaintiff gave to the defendant permission
to enter his land and remove some corn, di-
recting that the defendant enter the land
through the gate. Instead of doing this de-
fendant pulled dowr the fence. The court
held that the defendant was a_ trespasser.
Gaston, J., writing the opinion, said: “Now
it is not reasonable, and therefore not legal,
to presume a more extensive license than is
essential to the enjoyment of that which was
expressly granted.”

Upon the record, the instruction of the trial
judge was correct, and the judgment is af-
firmed.

Affirmed.

STATE v. FOX. (No. 41.)

Supreme Court of North Carolina. Oct. 2,
1929.

1. Homicide @>253(1)—Conviction of murder
in first degree sustained, by evidence.
Evidence held to sustain conviction of mur-
der in the first degree.

2. Criminal law €=400(10)—Witness hearing
defendant dictate telegram and seeing it writ-
ten on blank held properly permitted to state
its contents.

In murder prosecution, witness who stood
beside defendant while he dictated contents
of telegram to be sent, and saw man write down
on blank what defendant said, held properly per-
mitted to testify as to contents of telegram.

3. Criminal law €=470—Permitting physician
to state his opinion that deceased was lying
down when he received fatal wound held not
to invade jury’s province.

Permitting physician in murder prosecution
to testify that deceased was in physician's opin-
ion lying down when he received the fatal
wound, and as to his reasons for such opinion,
held not to invade province of jury.

4. Criminal law C€>406(3)—Voluntary state-
ment of defendant to grand juror inspecting
jail held properly admitted.

In murder prosecution, statement made by
defendant to a grand juror while latter was
visiting jail for purpose of inspection held prop-
erly admitted; the evidence sustaining trial
court’s finding on voir dire that statement
was voluntarily made.

5. Criminal law €=531(1)—Confessions made
subsequent to one induced by hope or fear
are deemed voluntary only on proof that in-
fluence has been removed; “voir dire.”

Where confessions madé@ by defendant have
been ruled out_as induced either by hope or
fear, before subsequent confessions can be
deemed yoluntary, it must be made to appear
that influence has been removed, and, when
objection is made, competency or in¢ompetency
must be heard on “voir dire,” which means
to speak the truth, and denotes the preliminary

examination which court may make of one
presented as witness or juror where his com-
petency, interest, ete., is objected to.

[Ed. Note—For other definitions, see Words
and Phrases, Third Series, Voir Dire.]

Appeal from Superior Court, Edgecombe
County; Small, Judge.

Srnest Fox was convicted of murder in the
first degree, and he appeals. No error.

The defendant was indicted for murder of
one Jesse Taylor, and convicted of murder
in the first degree and sentenced to be elec-
trocuted. The state’s evidence tended to
prove that Jesse Taylor was a young man
about 20 years of age, and was engaged in the
grocery business in Rocky Mount, on East
Grand avenue; that on Saturday night Jesse
Taylor was in the store a little after 12
o'clock checking up and counting his money.
Jesse Taylor was ‘a single man, and cus-
tomarily slept in his place of business; ‘his
father and family resided in another section
of the city, some distance from the store. On
the next morning, Sunday, May 26th, the
members of the family telephoned the store.
and received no response, one of his brothers
went to the store, and, after knocking and
hollering, with no response, the brother with
others forced an entrance by breaking the
door of the store, which was locked on the in-
side. They found Jesse Taylor on a cot dead,
with blood on his head. The two brothers
and the father of Jesse Taylor identified a .41
ealiber Colt revolver as the property of J. I.
Taylor, father of Jesse Taylor, which he had
loaned to Jesse Taylor, his son, with instruc-
tions by the father to keep same in his store.
Neither his father or brother was able to
place the said Jesse Taylor in the possession
of the revolver they identified inside of 2
weeks prior to the time of Jesse Taylor’s
death. The father, brothers, nor did any
state's witness see defendant enter or leave
the store either on Saturday, May 25th, or
Sunday, May 26th.

Louis Perry’s testimony was to the effect
that he had known defendant 3 or +4 years,
and knew where his father lived on May 26th.
Ile saw defendant Thursday May 23d at Jesse
Taylor’s store at an early hour, about 5
minutes of 6 o’clock; that Jesse Taylor and
two white men and defendant, Fox, were in
the store, and were so dressed as to indicate
that they had slept in Jesse Taylor's store
the night before.

li. A. Pittman: Knew Jesse Taylor; he ran
a store on Kast Grand Avenue, No. 600: ana
rented the store next door to him, No. G02, to
Taylor, and then Taylor moved across the
street to another building. “The night before
Jesse Taylor was killed, Saturday night,
Ernest ox, the defendant, entered my_store
at abeut eleven-thirty-p. m., and stayed there
until T cleaned up and begun to close up, It
Was a quarter to one when I got cleaned up

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

"6261 ‘ZZ *acN (equecespy) uest4y eyes vurter°o yQueN *oetTe SyoeTq ‘qsouMg ‘yo”

ene

OMWERS.

“OF

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PE EM CT Oe

7i0 N.C.

C. 706, 20 S. E. 175; State v. Winston, 116
N. C. $90, 21 S. E. 37; State vy. Rodman, 188
N. C. 720, 125 S. E. 486; State v. Whitener,
191 N. C. 659, 132 S. BE. 603; 7 AI... R. 420;
State v. Newsome, 195 N. C. 552, 143 S. E.
187.

In State v. Lowhorne, supra, at page 640
of G6 N. C..we find: “It is true, that in the
case of the State v. Roberts [1 Dey. (12 N. C.)
259} the confession was made to the same
person, but that, we think, can make no dif-
ference.”

In State v. Drake, 113 N. C. at page 628,
18 8S. E. 166, 167, Burwell, J., in regard to
confessions, said: “It is a well-settled rule
that, if promises or threats have been used,
it must be made to appear that their influ-
ence has been entirely done away with be-
fore subsequent confessions can be deemed
voluntary, and therefore admissible; and
hence, it having been found that an improper
influence was used to obtain the confession
that was excluded, and it not having been
made to appear that that influence had been
in any way removed, the confession made on
the journey to the jail, to one of the crown,
should also have been excluded. State v.
Drake, 82. N. C..592.” State v. Page, 127 N.
C. 512, 37 S. E. 66; State v. Bohanon) 142 N.
C. 695, 55 S. E. 797; State v. Whitener, su-
pra.

“Confessions are to be taken as prima facie
yoluntary and admissible in evidence, unless
the party against whom they are offered al-
lege and show facts authorizing a legal infer-
ence to the eontrary.” State v. Sanders, 84
N. C. at page 730; State v. Rodman, supra,

This court, through Dillard, J., speaking
to the subject, in State v. Sanders, 84 N. C,.
at page 730, supra, said: “Under the objec-
tion made, the admissibility of the confes-
sion depended on the facts accompanying it
and the legal inference therefrom, the facts
being matter for the decision of the judge
and conclusive, and the sufficiency or insufli-
cieney thereof to warrant the admission or
exclusion of the evidence being matter of law
reviewable in this court. State v. Andrew,
Phil., 61 N. C. 205; State v. Whitfield, 70 N.
C. 856. If from the facts the legal inference
be that the confession was voluntary, then
the evidence was receivable, otherwise, not.”
State v. Whitener, supra.

[5] The confessions made to the. officers
having been ruled out as incompetent, in-
duced either by hope or fear, it must be made
to appear that that influence has been done
away with or removed before subsequent
confessions can be deemed voluntary and
therefore admissible. When objection is
made, the competency or incompetency must
be heard on the voir dire. “Voir dire—To
speak the truth. This phrase denotes the
preliminary examination which the court
may make of one presented as a witness or

149 SOUTH EASTERN REPORTER

juror, where his competency, {nterest, ete.
is objected to.” Black’s Law Dic. p. 1212.

The court below on the yoir dire heard all
the evidence introduced, including that of de-
fendant, and found that the statement made
to the grand juror was voluntary and admis-
sible in evidence.'’ There was evidence to
sustain this.ruling; ‘therefore the testimony
of the grand juror was properly admitted as
evidence. In this we can sce no error.

From the whole record we can find no er-
ror,

al
n?

CARAWAN et al. vi BARNETT. (No. 183.)
Supreme Court of North Carolina. Oct. 9, 1929.

Executors and administrators €>2!2—Munici-
pal corporations @=529—Representative can-
not be ordered to pay street improvement as-
sessments from general assets of deceased;
street improvement assessménts are collecti-
ble only from realty assessed (C. S. §§ 93,
2713). ?

Street improvement assessments constitut-
ing paramount lien on land under C. 8. § 2715,
are not personal liability of owner, and are col-
lectible only from land, so that on death of
owner personal representative cannot be re-
quired to pay any part of such assessments out
of estate other than realty assessed; C. 8.
§ 93, prescribing order of payment of debts
of decedent, having no application to assess-
ments. ,

Appeal from Superior Court, Pamlico Coun-
ty; Daniels, Judge.

Action by C. G. Carawan, executor of the
last will and testament of Monetary Dela-
mar, and others, against Hortense Barnett.
Decree for defendant, and plaintiffs appeal.
Affirmed.

Z. V. Rawls, of Bayboro,, for appellants.
Ward & Ward, of Newbern, for appellee.

CLARKSON, J. The only question in-
volved is whether or not a street assessment
on a particular piece of land or lot abutting
on a street in a municipality, duly and prop-
erly made according to law, should be paid
by the personal representative of the party
whose piece of land or lot is assessed, or out
of the land or lot. We think the land or lot
bears the burden of the street assessment.

After alleging the facts, “the petitioners
pray the Court for its direction as to the pay-
ment of the balance due on said street assess-
ment, which balance, to date is $167.87 with
interest.” Trust Co. y. Stevenson, 196 N. C.
29, 144 S: E. 370.

The will of Monetary Delamar was made
and executed on January 14, 1927. After her
death, C. G. Carawan duly qualified as ad-

CRFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CARAWAN v. BARNETT v.C. 741

ave OU. 4

149 S.E.

ministrator of her last will and testament
and entered upon the discharge of his du-
ties.. The necessary items of the will of
Monetary Delamar for the decision of this
action are as follows:

“Item 2. I give and bequeath to my be-
loved daughter in law, Winnie Delamar my
house and lot in the Town of Oriental where
I reside, to haye and to hold during her nat-
“ural life, at her death to be sold, the pro-
ceeds to go to the Methodist Orphanage, at
Raleigh, N. C.,” ete.

“Ttem 3. I give and bequeath to my _ be-
loved sister Hortense Barnett all my wearing
apparel and all money and all netes due me
and a wateh which was my mother’s.”

Prior to Monetary Delamar's death, there
had been, according to law, a street assess-
ment on the house and lot devised to her
daughter-in-law, Winnie Delamar, during her
natural life and at her death to be sold and
the proceeds to go to the Methodist Orphan-
age at Raleigh, N. C., by the town of Orien-
tal. The assessment by the town of Oriental
was confirmed on March 28, 1927, and the
amount of the assessment was $186.52. From
confirmation the asSessment became a iien
superior to all other liens and incumbrances
on the land. C. 8. § 2713. The testatrix,
Monetary Delamar, had the option to pay
same either in cash or on the 10 equal annual
installment plan, as she desired. GC. S. § 2716.
Prior to her death she paid, on April 28, 1927,
one-tenth, being $18.65, leaving a balance of
$167.87 to be paid on the installment plan.

In Morganton vy. Avery, 179 N.C. 551, 103
8. E. 138, speaking to the subject, it is said:
“The assessment is not a personal liability of
the defendant, and could not be collected out
of her personalty by execution. It is a liabil-
ity created solely by statute, and does not
arise ex contractu.' It is not a personal li-
ability of the owner of the land to be col-
lected by execution; it is a statutory charge
upon the land itself, and must be collected by
proceedings in rem in a court having equita-
ble jurisdiction unless some other legal meth-
od is provided by the statute. If the land
benefited is insufficient in value to pay the as-
sessment in full, the remainder cannot be col-
lected out of the other estate of the landown-
er. Canal Co. vy. Whitley, 172 N. G. 102, 90
S. FE. 1; Commissioners y. Sparks E79 NC:
581] 103 S. E. 142, this term; Raleigh vy.
Peace, 110 N.C. 32, 14-8. E. 521, 17 L. R: A,
220." Pate vy. Banks, 178 N.C. 139, 100 S. EB.
“51, Assessment not collected out of other
property of delinquent, see C. S. § 5362.

In R. R. y. Ahoskie, 192 N. C. at pages 259,
260, 134 S. FB. 653, 654, it is said: “An assess-
ment, ‘as distinguished from other kinds of
taxation, are those special and local imnposi-
tions upon the property in the immediate vi-
cinity of municipal improvements which are
necessary to pay for the improvement, and
are laid with reference to the special bene-
fit which the property is supposed to have de-
rived therefrom,’ Black's Law Dictionary ;
Raleigh v. Peace, 110 N. C. 32, 14 8. E. 623,
17 L. R. A. 330.” Goode y. Asheville, 193 N,
©, 134, 136.8. BE: 340; Drainage District y.
Cahoon, 193 N. C. 326, 137 S. 12. 185.

In Coble v. Dick, 194 N. C. 732,140 8S. B.
745, it is held that the assessment is an in-
cumbrance as contemplated or included in
the warranty in a deed containing full cove-
nants and warranties against all ineumbrane-
es whatsoever.

A different rule applies in drainage assess-
ments, premised on the language of the differ-
ent statutes,

In Taylor v. Commissioners, 176 N. C. 217;
96 S. E. 1027, 1030, this court held: “The
drainage tax becomes a lien, just as the bene-
fits accrue, i. e., annually, * *. * It is a
lien in rem, accruing annually and resting
upon the land into whosever hands it may be
at that time.” Branch y. Sannders, 195 N.C.
at page 178, 141 S. FB. 583.

C. S. § 93, order of payment of debts of the
decedent, has no application, The elasses un-
der that section apply to certain taxes and
dues to the United States and state of North
Carolina and debts ex contractu, not Aassess-
ments. C. S. § 93, supra, was passed at Ses-
sion of the General Assembly 1868-69. See
chapter 113, § 24. The Local Improvement
Act, C. S. § 2703 et seq., was passed at Ses-
sion of the General Assembly 1915, chapter
56.

The court below rendered the following
judgment: “It is thereupon considered by
the Court, and adjudged from the facts so
found that the part of the estate of the tes-
tatrix bequeathed to the defendant is ‘not
liable for any part of the unpaid assessment
made against the lands devised by item IT to
the plaintiff. Winnie Delamar, for life and
to the Methodist Orphanage at Raleigh in re-
mainder, and that the defendant £o without
day and recover of the plaintiffs and the
surety for their prosecution bond, the costs
to be taxed by the Clerk.”

We see no error in the judgment of the
court below,

The judgment is affirmed.


936 N.C:

supra. In my opinion the continued hold-
ing by the administratrix of the bank stock
in this case as an investment of the estate
was without legal authority and amounted
to a devastavit and the Securities Invest-
ment Company is not such a creditor of the
estate as may be heard to object to the pro-
ceedings sctting apart the year’s support.

210 N.C. 288
STATE v. GALLMAN. *
No. 730.

Supreme Court of North Carolina,
June 15, 1936.

Homicide €>253(3)

Evidence as to premeditation and delib-
eration held to sustain conviction for murder
in first degree (C.S. § 1618).

a

Appeal from Superior Court, Forsyth
County; Clement, Judge.

Willie Lee Gallman was convicted of
murder in the first degree, and he appeals.

No error.

Criminal prosecution tried upon indict-
ment charging the defendant with the mur-
der of one John Gaston.

Verdict:
degree.

Guilty of murder in the first

Judgment: Death by asphyxiation.

The prisoner appeals, assigning crrors.

John D. Slawter, of Winston-Salem, for
appellant.

A. A. F. Seawell, Atty. Gen., and Tarry
McMullan and T. W. Bruton, Asst. Attys.
Gen., for the State.

STACY, Chief Justice.

The evidence on behalf of the state tends
to show that on December 31, 1935, Jolin

186 SOUTIT EASTERN REPORTER

Gaston and another were shooting pool
for moncy at a pool room in the city of
Winston-Salem. The defendant was pres-
ent acting as stakeholder. Upon winning
the game, as he contended, Gaston demand-
ed the stakes which the defendant declined
to give hip. An argument ensued and re-
sulted in a fight between the defendant
and Gaston, his son and brother, who were
also present. The defendant broke away
and ran. In about thirty minutes he re-
turned with a .22-rifle. Gaston and his son
in the meantime had gone about their busi-
ness hauling wood. The defendant over-
took them at Lucy Gunter’s home. As Gas-
ton started off with his truck, the defendant
‘shot him three times, inflicting wounds from
which he diced several days thereafter.

The defendant contended that the de-
ceased was alighting from the truck in a
threatening manner and that he shot in self-
defense. The jury accepted the state’s ver-
sion of the killing and rejected the defend-
ant’s plea.

The defendant’s first contention that no
evidence of premeditation and deliberation
appears on the record is without substantial
merit, as it is based solely upon his own
evidence, and disregards entirely the evi-
dence offered by the state. The motions
to nonsuit on the capital charge, made un-
der the Mason Act, C.S. § 4643, were prop-
erly overruled. State v. Bulfkin, 209 N.
C. 117, 183 S.1. 543; State v. Evans, 198
N.C. 82, 150 S.I5. 678; State v. Miller, 197
N.C. 445, 149 S.E. 590; State v. Lipscomb,
134 N.C. 689, 47 SI. 44.

The remaining exceptions are equally un-
tenable. ‘They have all becn examined,
with the care which a capital case imposes,
and found wanting in merit. It would be
only a matter of repetition to consider
them scriatim in an opinion.

The defendant has been tried in strict
conformity to the established rules and
sentenced as the law commands,

The verdict and judgment will be upheld.

No error.

Cor other cases sce same topic and KEY NUMBER in all Key Number Digests and Indexes

STATE vy. BROOKS N.C: 987:

1868

NIVENS v. JUSTICE.
No. 545.

Supreme Court of North Carolina.
June 15, 1936.

Trial ©2368

In action to recover penalty prescribed
for keeping an illegal slot machine, agreed
fact that slot machine was located and oper-
ated in defendant’s place of business held
insufficient to warrant judgment for plain-
tiff, since statute authorized penalty only
for keeping illegal slot machine (C.S. § 4434,
ns amended by Pub.Laws 1931, ¢. 14, § 3).

—_—_e>_—_

Appeal from Superior Court, Mecklen-
burg County; W. F. Harding, Judge.

Action by Fred M. Nivens against Ellis
R. Justice, trading as Justice Silver Dime.
Judgment for the plaintiff, and defendant
appeals.

Reversed.

Action to recover of defendant the pen-
alty of $200 prescribed by C.S. § 4434, as
amended by Pub.Laws 1931, ¢. 14, § 3, for
keeping in his store and place of business
an illegal slot machine, heard by the court
below on an agreed statement of facts.

From judgment in favor of plaintiff, de-
fendant appealed.

Kirkpatrick & Kirkpatrick, of Charlotte,
for appellant.

Iliram P. Whitacre and H. C. Williams,
both of Charlotte, for appellee.

PER CURIAM.

The statute, C.S. § 4434, as amended by
Pub.Laws 1931, c. 14, § 3, provides: “
any person. shall. knowingly suffer to be
opened, kept or used in his house or on
any part of the premises occupied there-
with, any of the gaming tables by this ar-
ticle prohibited, or any illegal punch board
or illegal slot machine, he shall forfeit and
pay to any one who will sue therefor two
hundred dollars.”

E.
“3. That on the 6th day of May, 1935, a
slot machine was located and being ‘oper-.

< ”
ated in the defendant’s place of business.

The facts agreed are insufficient to war-
rant the judgment. The statute author-
izes penalty suit for keeping an illegal slot
machine. In the agreed statement of facts
the offending article is defined merely as a
“slot machine.” There is no description of
its mcthod of operation nor finding that it
is illegal.

The judgment must be reversed.

ch ae a
ONS KEY NUMBER SYSTEM

x
STATE’v. BROOKS.
No. 581.

Supreme Court of North Carolina.
June 15, 1936.

{. Automobiles 355 (13) :

In manslaughter prosecution for death
of highway pedestrian struck by attachment
to motor vehicle opetated in an unlawful
manner by defendant, state had burden to
show beyond reasonable doubt that attach-
ment was a trailer and not semitrailer be-
fore jury could consider statute applying 30
miles per hour limitation only to trucks
with trailers attached (Code 1935, §§ 2621
(43), 2621 (46a).

2. Automobiles €=357

In manslaughter prosecution for death
of highway pedestrian struck by attachment
to motor vehicle, defendant held entitled to
instruction that state had burden to show
beyond reasonable doubt that attachment
was a trailer before jury could consider
statute applying 80 miles per hour limitation
only to trucks with trailers attached (Code
1935, §§ 2621 (43), 2621 (46a).

—_—_>——_——.

Appeal from Superior Court, Pender

The facts material to the decision of the County; Williams, Judge.

controversy as set out in the agreed state-

ment of facts are as follows:

“2. That the defendant is in the business
of owning and operating a store wherein

Various soft drinks, beer and food are sold

and a hotel on the floor above wherein he defendant was

lives.

Thurston Brooks was convicted of man-
slaughter, and he appeals.
New trial.

@=For other cases see same topic and KEY

NUMBER in all Key Number Digests and Indexes

This was a criminal action wherein the
convicted of manslaughter.
It was the contention of the state that the

‘GF LISAEA

See Ow, COMP EL”

UMIVER SITY

*9€6T=Te-9 (UIASZ0Z) ASON *xAydse ‘Tz ‘yoRTG Sool TIT M SNVNTIVO

af


GANNAWAY, Harveg, bl, elec. NCsP (Forsyth) 10/16/1914,

GANNAWAY PAYS.
DEATH PENALTY

Forsyth County Negro Went
to His Death in Electric
Chair Yesterday—Gover-
nor Houors Requisition

—

hitriyh: Ter te thre thm wy
Forssth county neyro, paid the death
penalty in the electrie chair at the pend
tentinty this morning at ten thirty tor
Wile quunder, fle woe brought to the
death chimber and advaneed to the
| cbair without a tremor and was remark-
ably composed through the entire or.
deh Ife made no etatement..

It required two applications of the
eighteen hundred volte current to pro-
duce death to the satisfaction of the
[attending physicians, Gunnaway claim-
elon an recent appeal to the Gover-
ner for clemency that the hathae of
lis wife was justifiable and that he did]
Moot get oa fall td tiear hearing bn the
trial, ‘

4
4


Pa pane a Aer
; ee rE ET OTE EIT A AIS enenenenr ence

See ENO LTE E LT TIS EET TO NEE

ee ee

¥

160

and her son, Arthur Hill and Henry In-
gram and McCall's boy came out from the
“piccolo.” Duck said, “Shang, come on and
get in the car, this ain’t no place to settle
a wreck; get in the car and we will go
down here and scttle it’? One of the wo-
men asked him to stand on the fender.
There were seven in the car, and defendant
standing on the fender. They drove down
close to where the shooting took place and
stopped. There they tried to throw witness
off, saying that he did not have any G—
damn business on there. Witness testified
they all got out of the car and “began to
surround me with weapons in hand, and I
begged and pleaded to them not to jump
on me with the weapons. Duck LeGrand
had a pocket knife; her two daughters,
Margaret and Judy, had a pocket knife;
Shang had a pocket knife, and her sou,
Tlenury, had a stick; and Arthur Lill had
his hand stuck down in his pocket; 1 don’t
know what he had. I began to back up and
beg and plead to them to not jump on me.
Arthur Till stepped around sort of behind
me in this direction. Ile said, ‘G— damn
it, don’t back up this way; stay in there;
don’t come up this way. Ifenry Ingram
came through the crowd and said, “Let me
get over there with that stick, I will fix him,
G—— damn him, and so I ran.”

“When | ran toward the house some of
them ran after me. L didn’t look back to
see which ones it was after me; and I
ran on and got tangled up in some wire.

Some of them, I don’t know who it* was,

threw a rock or two at me, and I got out of

the wire and ran to the house, They ab-
solutely ran after me when I went running
I was followed pretty

towards my house.
close to the house.”

Defendant further testified, in substance,
that they had him scared, and he was beg-
y with their

ren he got to the house
out into from the evidence beyond a reasonable

ging them not to jump on hin
weapons; that wl
he picked up. a rifle and went
the yard
on and saw
Hill going back

Shang LeGrand and

es a:
piccolo,
down to the car and wall

his rifle; “they didn't know T had a rifles”
He told Shang he wanted to speak to him
done to them and why cation given him,
like they had. you that if the State has so satisfied you

and seé what he had
they wanted to treat him

Shang cursed him and told him he was from
in his hand. doubt, the defendant would be guilty of

going to Will him, had his knife

Defendant testifies he backed up and point-
and he be your duty to so find.” (Defendant's Ex-

id ception No, 6.)

ed his gun and told him to stop,
didn’t stop; “he advanced towards me, @

and found two people, Tle went
Arthur inflicted upon Duck LeGrand the fatal

in the direction of the wound, the de fene

Defendant then went back
ced up to it with pu

N.C. 34 SOUTIL EASTERN REPORTER, 2d SERIES

I pointed up my gun and I shot at him.”
He turned about and went to his door and
said, “Dulcic, hand me that thing, this
s. 0. b. has got a gun, I am going to kill
him.” He went to the driver’s side and
Duck, or Dulcie, was standing on the right-
hand side of the car with the door open.
That was the opposite side from the one
Shang went to. He opened the door and
reached over and told her, “hurry up.”
Defendant then shot through the wind-
shield, didn’t know whether Shang had a

-gun in there or anything; said they made

him think they wanted to kill him, so he
shot through the windshield, then stepped
around: to the side of the car and shot
through the car. Defendant testified he
didn’t try to shoot Duck LeGrand, and that
he had no intention to kill Duck or Shang
LeGrand.

Defendant testified that when he got his
rifle from the house he went straight back
to where the LeGrands were, “right be-
hind the automobile and didn’t stop.”

After some evidence in rebuttal, the State
rested and defendant renewed his motion
for judgment as of nonsuit and for a di-
rected verdict of not guilty on the count
of murder in the first degree. The motions
were overruled, and defendant excepted,

Inter alia, the judge charged the jury as
follows:

“Before you can return a verdict of
guilly of murder in the first degree, the
burden is upon the State, to satisfy you

further from the evidence beyond a reason-
able doubt that the defendant killed Duck
LeGrand not only unlawfully and with
malice, but with premeditation and deliber-
ation, and the Court charges you that if
the State: has satisfied you from the evi-
dence beyond a reasonable doubt that the
defendant unlaw fully killed Duck LeGrand
with malice, and has further satisfied you

doubt that prior to the time the defendant

lant had formed a fixed
purpose in his mind to kill her, and that,
rsuant to that purpose he did kill Duck
LeGrand because of the purpose in his
mind, and not because of any Icgal provo-
then the Court charges

the evidence beyond a reasonable

murder. in the first’ degree, and it would

STATE v

Cite as 34 S.E.2d 157

“Now, if the State has satisfied you from
the evidence beyond a reasonable doubt
that the defendant unlawfully killed Duck
IcGrand with malice and with premedita-
tion and deliberation, it would be your duty
to return a verdict of guilty of murder in
the first degree, and you would return your
verdict in these words: ‘Guilty of murder
in the first degree.’” (Defendant’s Excep-
tion No. 9.)

rhe jury returned a verdict of murder
in the first degree. Defendant moved to
set aside the verdict for errors committed
in the trial, and the motion was denied.

lo the judgment of death rendered upon
the verdict of the jury, the defendant ob-
pied and excepted, and appealed to this

ourt,

Harry McMullan, Atty. Gen., and
Hughes J. Rhodes and Ralph Moody, Asst.
\ttys. Gen., for the State.

Brown & Mauney, of Albermarle, for
defendant, appellant.

SEAWELL, Justice.

[1] We find no merit in the exceptions
Psci on demurrer to the evidence as not
wing sufficient to sustain a verdict of guil-
y of murder in the first degree. The evi-
e nee, which, because of these motions, we
have summarized at some length, is ample
m that respect and needs no special com-
ment,

Appellant’s more serious assignments of

tror relate to the instructions given to the
tiry. ;

[2,3] One of these assignments of er-
ror challenges the correctness of the
Indge s instruction on the necessity of
proving guilt beyond reasonable doubt, con-
ioe that he assumed there was evidence
ending to show that deceased came to her
ae ey the hands of defendant, whereas

‘ evidence, particularly that of the mor-
cian, who testified that deceased’s veinous
ystem had been broken down, was deficient
Spe that point. But without this testimony,
er tetice that deceased was hodily active
moment before, and immediately after
eae. shots from a rifle in the hands
Gan ne wee found dead with a wound
a sis ae subsequently found to
jedek ara icted by a rifle bullet, is cer-
dau we ee to fo to the Jury _as to the
eg a“ and. its infliction by the de-
Che ae aS later in the charge the
Tiadee ‘ ¢ appropriate reference to the

ity of proving that the wound so in-
J18.E.2d—11

. FRENCH N.C. 161
flicted was the cause of death. The charge
niust be considered contextually. State v
Hunt, 223 N.C. 173, 25 S.E.2d 598; State
v. Utley, 223 N.C. 39, 25 S.E.2d 195; State
v. Hairston, 222 N.C. 455, 23 S.E.2d 885

[4] The appellant further contends
that the instruction to the jury set out
in the statement of the case under Excep-
tion No. 9 deprived him of the benefit of
his plea (and evidence thereunder) that
the killing was done in his necessary and
lawful self-defense. In support of this he
cites State v, McHaffey, 194 N.C. 28, 138
S.E. 337, in which the instruction given
was held to have deprived the defendant
of his right of self-defense. Upon compari-
son of the cited case with the instruction
here given, we are of-opinion that the con-
tention is not meritorious.

[5-8] However, there is a further chal-
lenge to the instruction as not having again
and immediately defined “deliberation ” al-
though that had been adequately and ac-
curately defined in a preeeding instruction
Beyond the familiar rule that the hires
must be interpreted contextually, we have
direct approval of the challenged instruc-
tion in State v. McClure, 166 N.C. 321, 327
81 S.E. 458, 460. The instructions arc
practically identical, and for convenicnce
in a word by word comparison, we quote
from State v. McClure:

“Deliberation means to think about, to
revolve over in one’s mind, and if a per-
son. thinks about the performance of an
act and determines in his mind to do that
act, he had deliberated upon the act, gentle-
men. Premeditation means to think before
hand, think over a matter beforehand, and
where a person forms a purpose to kill an-
other and weighs this purpose in his mind
long enough to form a fixed design to kill
at a subsequent time, no matter how soon
or how late, and pursuant to said fixed de-
sign kills said person, this would be a
killing with premeditation and apiliel stat
and would be murder. in the first degtce.
And the court charges you if you shoukt
find beyond a reasonable doubt, gentlemen
that prior to the time he killed the deceased,
he formed the fixed purpose in his mind to
kill him, and that pursuant to that purpose
he did kill the deceased because of the pur-
pose in his mind, and not because of any
legal provocation that was given by the

deceased, then the court charges you that
the prisoner would be guilty of murder s
the first degree, and it would be your duty
to so find,” :

4i--

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34 SOUTH EASTERN REPORTER, 2d SERIES

We have carefully considered the excep- liberate and premeditated ne sf ae
tions taken to the trial and examined the der in the first degree. G.S.$ ig i ed
recerd for error, and we see no reason that v. Hawkins, 214 N.C. 326, 199 S.IE. 25+.
would justify us in interfering with the
result of. the irial.. We find,

Ilad the instruction excluded the idea of
a killing from anger presently incited, and
conveyed only the thought of a homicide
from a_ fixed determination previously
formed after weighing the matter, it would

No error.

STACY, Chief Justice (dissenting). t .
One of the vital issues in the case was have sufficed without separate wigs 4 :
chether the defendant slew the deceased premeditation and deliberation. = api
me S ‘1 the heat of passion Coffey, 174 N.C. 814, 94 S.E. 416; State
es set re at pce the \. Exum, supra. But this is hardly its
se, Oe aa. a correcily ” puitene: State v. Thomas, supra, An
paid Seen of murder in the first untaw ful killing with malice peg Mel is
degree to be the unlawful killing ofa hu- meditation falls short ger? 3 — Ate
an being with malice and with premedi- degree. » rhe additional elemen ent
Eternal dablbc¥at Sour ay said? eration is necessary to make out the capital
tation and deliberation, the court the nr Site ere aes eas =
“And the court’ charges you that i! the cffense, State Vv. pants ee a a ee
State has satished you from the evidence S.E. 573; State Vv. Mi af one “ie
beg Seren blesthubt fab tne defend- 149 §.E. $90; State v. Benson, 183 N. af >;
pcan ary ke LeGrand with 111 S.E, 869; State v. Thomas, supra. “Any
asncirilaw 1a — ene Tuead SoH from untestid killing of a human being with
me eg es dn intone wl : doubt that malice aforethought is murder; but, if noth-
os leon oe h aioe St inflicted ing further characterizes the offense, it is
peed yee ae. atal j he urder in the second degree. To constitute
on Duck LeGrand the fatal wound, the murder im Ui :
fs ad formed a fixed purpose in the higher offense there must be willfulness,
eee 3 ee eee ree Psu lcliberation, premeditation.” People v.
his mind to kill her, and that, pursuant to deliberation, r emedit 2 if
Z -poseche: did kill Duck LeGrand Cox, 76 Cal. 281, 285, 18 P. 332, quotec
ee gS a” paseeae in his mind, and— with approval in State v. Fuller, supra [114
in Nin of any legal provocation given N.C, 885, 19 S.E. 802].
him, then the Court charges you that if the True it is, in other portions of the charge
State has so satisfied you from the evi- oth terms are correctly defined, but here
dence beyond a reasonable doubt, the de- the court was undertaking to sum up the
fendant would be guilty of murder in the ole matter in a single sentence or re
first degree, and it would be your duty, to 50. Grruction:. Bo vas attempted in State v.
pant Met Laffey, 194 N.C. 28, 138 S.E. 337, which
This charge as applied to the facts of the resulted in a new eel.
instant record fails to draw any distinction The eee oe SIME we ticChice, 108 NC.
between a fixed purpose “delibe rately form- 321, 81 SE. 458, is ied a. x controlling
ed” and one engendered Seow sg 3 a authority. There, after some hesitancy and
denty eeased. BINS & Epes 18 N.C. ich contextual interpretation, a similar
1113, 24 S.E. - sc % = ~: = instruction was upheld as sangeet ae
N.C 78By 92 Se ee ee eter 2 Eeaobs of cthatueasc. A, deputy--smen ac
fines premeditation, but ag thee er ee been killed while attempting to make an ae
Lo deiibergttgn. oie ake a ieee ets rest, following a small “riot and repeate
885,19 S.B, 797. Reese aon oo threats on the part of the prisoner “that
prior consideration, “thought of : before: there was no G-d s-o-b in the county who
hand”; while “deliberation” | signites re- could arrest him; that he would kill any
ficction, “in a cool ptats of the: blood, officer that undertook it”: “The <prisencr
State v. Evans, 18 NC. Be, ee 5.E. aa offered no testimony. Here, the evidence
G79; State v. Fxum, geal is 57, ORNs re of a “willful, deliberate and premeditated
SE. Bide lt may ae be weressnny: 3 SSF Oy killing’ is not so clear, and the crucial
case to refer to the two terms separately, sorte arent digyuic.7 The padcity tthe
instruction scems apparent.

but both ideas are essential to a complete
IT would remand the case for another

stating the cl

definition of the capital offense. State v.
Exum, supra; State v. Spivey, 132 N.C.
089, 43. S.E. 475. This was so at com-
mon law, and our statute dividing murder
into degrees denominates any “willful, de-

hearing.

WINBORNE, J., concurs in dissent.

WEAVER v. STATE Ga. 1638
Cite as 34 S.E.2d 163

: WEAVER v. STATE.
No. 15150.

Supreme Court of Georgia.

May 10, 1945.

1. Criminal law C=954(5)

A ground in motion for new trial in
murder prosecution that court erred in not
charging jury on the law of voluntary
manslaughter was too indefinite an assign-
ment of error to raise any-question for re-
Vicw,

2. Criminal law ©=775(2)

Where the testimony did not exclude
the possibility of the presence of defendant
at scene of the homicide at the time of its
commission, a charge on the law of alibi
was not required. Code, § 38-122.

3. Criminal law ©775(4)

In prosecution for murder, where the
court instructed with reference to defend-
ant'’s contention that he was not present at
the scene of the homicide at time of its oc-
currence and that if such contention be
found to be true defendant should be ac-
quitted, failure of the court to further in-

struct on the law of alibi was not error.
Code, § 38-122.

4. Criminal law C>438

In murder prosecution, photographs of
the decomposed body of the deceased made
about ten days after date of the alleged
homicide were properly admitted where the
expert who made the autopsy testified that
the fractures found and as shown by the
photograph were sufficient to cause de-
ceascd’s death.

5. Criminal law €=404(3)

Where there was evidence that a homi-
cide had been committed by the use of a
certain stick and that the stick offered in
evidence was the one which defendant used,
it was properly admitted in evidence.

6. Homicide C330

Where certain documents referred to
In cross-cxamination of witnesses Were not
formally offered in) evidence but were
placed on a table, along with other docu-
ments which had been offered in evidence,
and came into the hands of the jurors along
with the other documents, it would be pre-
sumed that accused and his counsel knew
that such papers were delivered to the jury,

in the absence of a showing to the con-
trary.

7. Homicide €=250

Evidence that defendant struck de-
ceased with a stick or club and that the in-
jury sustained resulted in death, justified

defendant's conviction of murder. Code, §§
26-1007, 38-122.

Syllabus by the Court,

1. A ground of a motion for new trial,
in a conviction for murder, which insists
that the court erred in not charging with-
out request “the law of voluntary man-
slaughter, which movant insists was and is
applicable to this case,” is too vague and in-
definite to raise any question for determina-
tion by this court.

2. A ground of a motion complaining
that the court erred in not charging without
request “the law of alibi, which movant in-
sists was and is applicable to this case,” is
without merit, where it appears from the
evidence most favorable to the movant
that it did not exclude the possibility of his
presence at the scene of the homicide, and
where it further appears from the charge
as given that the defendant was given the
benefit of the contention made by him in
his statement that he was not present, the
judge fully and fairly charging the conten-
tions of the defendant with respect thereto.

3. Photographs of the decomposed
body of a deceased person, made some ten
days after the date of the alleged homicide,
were not inadmissible in evidence, where
the expert who made the autopsy testified
that the fractures. found and as shown by
the photographs were sufficient to cause the
death of the deceased.

4. Where there was evidence sufficient
to authorize the jury to find that the stick
exhibited at the trial was the stick with
which the defendant struck the deceased,
and thus caused his death, it was not error
to admit said stick in evidence.

5. Where a ground of a motion for
new trial in a criminal case complains that
the prosecuting attorneys, without having
tendered in evidence or given. movant or
his counsel an opportunity to object to the
admission thereof, placed in the hands. of
the jury documents concerning which wit-
nesses had been interrogated by counsel for
both sides, and argument had_ thercon,
which ground contains no statement that
neither the movant_nor his attorneys knew,
at the time or before the verdict was r-e-

ar

~~

GHIVERSITY

RL5 Se

caLeeeeret Fy

LA wy

SCM. OF

a Hw LOCAL

*-, By, Martha Yates

“= THE-SALISBURY POST
3' John Sterling Gardner is ap-
‘

~,P

‘has wrenched the emotions of his
victims’ families and loved ones
<* for-almost 10 years.

*}: He has been on Death Row in
‘= Raleigh's Central Prison since
“1983. He is scheduled to die Oct. 23
<:.at.2 a.m, either by lethal injection
,2/or in the gas chamber.

“2, He has a choice of how his life
.Zewill end. His victims did not.

“tee On Dec. 17, 1982, Gardner and
«two other men went to the home of
ray Shaver off Clark Road to rob
Piss im.

2." Instead, Shaver was killed with-» Ba
_ ‘Mis own gun. Gardner pleaded guilty h,.

‘T+to second-degree murder and was
‘t-sentenced to life in prison.
+2 Charges against the other two
z-men, Richard Dwight ‘Boogie’
Small of Lexington and Ronald
«zarwin Bruscia of Winston-Salem,
“”*were dropped after Gardner made
‘conflicting statements about what
4“ happened at the Shaver home.
; Six days after Shaver died,
“Gardner was charged with two
counts of first degree murder in
“the deaths of Richard Adams, 21,
“of Winston-Salem and Kim Miller
“24, of Yadkinville. The pair were
‘employees at Steak and Ale, a
«Winston-Salem restaurant, that
“Gardner robbed. He killed them in
wthe process,
“- He received the death penalty

—<for their deaths,-but-his-execution-—the-state’s~prison-system-on-the-—-onsuits-with his-or-her-attorney:—

«has been delayed numerous times
“because of appeals to higher
courts. :
“+ His appeals have run out. His
“fate now rests in the hands of Gov.
‘Jim Martin. |

‘+ He is expected to appeal to the
“governor to commute his death
sentence to life in prison.

“*. People like Julianna Shaver,
““ wife of Ray Shaver, along with
“Tim Bost, chief deputy of the
“Rowan County Sheriff's Office,
and law enforcement officers and
families of the Forsyth County
+ victims are expected to do every-
“ thing in their power to block his

_ © efforts.
« They plan to meet with the

* governor to try to help him decide

- whether to commute the sentence.

“' Mrs. Shaver has no sympathy

- for, Gardner. She wants to be

“outside the window of the gas

«chamber when Gardner is ex-

+ ecuted,

‘» ‘They have no seat for her right

1,
hy

roaching the end of a saga that f

Victims’ families expected
zto push for Gardner execution

Chief deputy Tim Bost with gun that killed Shaver

now," Bost said. ‘‘We’re working
through the SBI to try to get her
a seat for the execution.”
Gardner, 34, has a criminal
record that dates back to 1976,
when he was 18 years old and living
in the eastern part of the state.

His record includes a number of
breaking and/or entering and lar-
cenies, breaking into motor ve-
hicles, attempted breaking and/or
enterings, larcenies of firearms,
two counts of felony escapes, the
armed robbery in Winston-Salem
and the murders.

The tall, lanky inmate entered

current charges on June 23, 1983,
to await execution.

He has had two violations while
he has been incarcerated. On Sept.
12, 1984, he committed a major

North Carolina’s Death Row.

; : tana
lg 1} “at bly

aE UL NOT
JAMES BARHINGEA/THE SALISBUKY POST

infraction for disobeying an of-
ficer. On April 29, 1986, he was
punished for a major infraction of
misuse of narcotics Or alcohol.
Had he been executed on his
original date with death on Feb. 3,
1984, he would have made history
by being the first in the state to
have a choice between the gas
chamber and lethal injection. The
option was approved during the
General Assembly session in 1983.
State law allows the inmate to
state his choice through a written
request five days before his sched-
ule execution date. The request
can be made after the inmate

The last execution was Oct. 18,
1991, when Michael McDougall of
Charlotte died by lethal injection.

To date, there are 75 people on


Ee 5. a ne ES oF ere, ame
-y- = ees rN te

El LOCAL

a . Sas PES tert SY

_ Live hand grenade
_amongrelics: 1B

eS [ESPORTS 22
ourgo Eagles edge

to Gold Hill: 1¢ |.

_ TheSalisbury Post

1 per copy Serving historic Rowan County, North Carolina, since 190 - Sund

MNS SPS, Bee Se a ee ened aa epee ete eee
ge So SS AES Fe ee Se ea ee

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Widow wants to watch killer die

Pe Ate He , | Ray Sha ver, By Martha Yates . “The judicial system in this statehas —_ review the case right up to the last _
= Ba le ft : k 5 i ] i . THE SALISBURY POST gone down the tibes — not only in my minute, though,” he said. ‘‘Now, Gar-
a : x , Was Klille Will John Sterling Gardner kee p his case, but in othe cases. dner is trying to get the Sentence
2 neav. ly 10 years Oct. 23,2a.m. appointment withdeath? = Mrs. Shaver Sad tim Bost, Rowan commuted through the Governor's of- .
i b bb Julianna Shaver of Salisbury hopes so. County Sheriff’ sOffice’s chief deputy fice from death to natural life in prison.
ago DY rovvers She is trying tomake arrangementsto expect to go balers ip Srenring out of options. This is the >
: _ _ Sit outside the viewing windows of . EZ Ji i . 4
at his home on ; Central Prison’s death chamber in Gas ee epiesd ne 3 Gardner pleaded guilty to second- tae
Clark Road. His Raleigh and watch as life ebbs out of the ; days and ask that egree murder in Rowan Superior Court TRA
° man who killed her husband on Dec. 17 +) Gardner's death and received life in prison for the crime. ; we
Widow hopes to 1982. OS sal tecertt eq The plea was accepted here right after Sy £2 ae
see John Sterling _,, Ray Eugene Shaver, 72, died quickly ” through. slaying at Steak and Alen Winee ee ae
o£. ; from a single gunshot wound to the back Gardner is sched- Sobre ae er jaa ~
<7 Se Gardner, his of his head during a robbery of the uled to be put to — : OS
; Pp Two other men were charged in the sagt Oa =
ay Shaver was murderer e couple's Clark Road home. The fatal death for two Sat Ses
aver | , CX- bullet was fired from his own gun —a tees} robbery/murder at the Shaver home. ae Sa
‘led with his own 3 : murders in Forsyth — However, charges against Richard Bee 2 Soe Cate = = fe
f ecuted this Lugar P-38 — the very one he kept ina County that happened pied > senate Pesto one TEES TH
un during robbery holster that hung from a nail ina - six days after Shaver Dwight "Boogie" Small and Ronald ea aed Se eae
thomeonDec.17, month bedroom closet. died. He has exhausted all his judicial 4*¥'" Bruscia, were dismissed be- JAMES BARRINGENTHE SALISBURY POST
982 Tam very bitter," Mrs. Shaver said. appeaté, Bost said. ““A judge can still >See Execution, Page 6A Julianna Shaver : |
A ee ee, ee ’ f % ° a5 no


=~ 6A—Suaday, October 4, 1992, The Salisbury Post

HM CONTINUED ...

Execution

> From Page 1A

>” cause the only substantial
evidence they were involved came
through Gardner's testimony.

And Gardner's testimony about
the two men’s involvement con-
tinually changed, ranging {rom
statements that Bruscia killed
Shaver to Bruscia and Small were

resent when the shooting death
lappened, .

~Mrs, Shaver said she was not
notified when Gardner pleaded
here. “I was never notified, never
told anything when he pleaded,”
she said, ‘“‘Clenn Sides (a former .
investigator with the Sheriff's
Office) kept me informed about
the investigation.

“I don’t know If he would have
gotten the death penalty here or
not, I'm happy with the sentence
he got in Forsyth County. I just
want them to carry it out, * ---+"-*

“I'm from the old school — an
eye for an eye and a tooth fora
tooth. I believe in the death

penalty.”
Break-In and murder

Shaver was alone when three
thieves apparently drove up the
long gravel driveway lined with
pine trees off Clark Road on the
‘morning of his death.
~~ He was In the bathroom prepar-
ng to bathe the couple's dog,
:Pepper, when he heard them
-qround his home.
‘He must have gotten the gun
ind gone to hide in the furnace
closet off the kitchen,"* Bost said.
“He also called the sheriff's office
and said his home was being
-hroken into."’
_.. (Mrs, Shaver sald she did not...
think the gunhadeverbeenfired = °
prior to her husband's death. She

‘said she did not know the gun was } °,

kept Inside the closet until after he -
died and she found its emply
holster hanging from the nail.)
Shaver was already a little
skittish about strangers around his
home because of a strong armed
robbery in September. At that
time, two men approached him
while he was on his riding lawn
mower and took his wallet after
Mace was sprayed in his eyes.
~ He had also been somewhat
weakened by two strokes, circula-
| tion problems in his legs, a heart
disorder and cataracts on his eyes.

. house near the back door that

Tattoos

Shaver had told his wife one of
the men in the September robbery
had hearts tattooed on his fore-
arm. Gardner also has similar
tattoos.
+. During the December robbery |
and killing, the three intruders !
took a television from the kitchen
and four long guns from a rack in
the bedroom. They also apparently °
weat through other closels in the
house.

Deputies believed when one of
the thieves, thought to have been
Small, opened the furnace closet
‘door, Shaver pointed a pistol at
him and ordered him to “'stay ©
put,” Bost said. ,
~. Gardner and Bruscia apparently ~
fled to their vehicle, a pickup with
a camper shell on the back,
believed to be owned by Bruscia.

Called Sherlft's Office

*- Shaver called the Rowan County

Sheriff's Office and told the dis-
atcher he was holding a gun on an
atruder and described the vehicle

as a van.
‘There was apparently a strug-

gle inside the house between Mr.
Shaver and Small,” Bost sald, “We
also found fiber on the siding of the

matched those around a tear on
Gardner’s jacket.”

‘ Gardner told deputies in one of
his many statements that he was
outside when Shaver came out the
back door. ‘Bruscia had his gun on
Mr. Shaver while Mr. Shaver had
his gun on Bruscia," Bost said.
“As Bruscia backed Mr. Shaver
out of the house, Gardner grabbed
Mr. Shaver’s gun from behind.”

.. The investigators have a theory
of what happened next, “At that
point, Gardner, not familiar with
Shaver’s gun, apparently
“racked"’ (slid a bullet from the
clip) a bullet into the chamber,”
Bost said. ‘‘The live round that

was already there ejected and fell
to the ground. At that point, we
feel Mr. Shaver was shot from .- ©
behind. We found the live round
under his trouser leg and a spent
round nearby.’

‘The three then fled in the ;
pickup. Officers later felt they had ‘|
passed the truck on their way to

Sree

4 hi formed a very
quick impression he
was a Clone of Charles
Manson. He literally
stared at me,about
like he was looking
Straight through me. It
seemed like | was in
there forever with that

uy 9 9

— Tim Bost, chief deputy

the Shaver home.

| | Adeputy arrived at the Shaver
: home within five minutes of the

call.
He found Shaver lying on his

back on the walkway leading from
his door. His head was lying ina
puddle of blood that had already

‘* gtarted to trail down the sidewalk. .
~*~ Manson. He literally stared at me

r——~" Mrs.Shaver says that trall is
1 visible even now during a heavy
‘rain.

Later that morning, a deputy

was sent to Rockwell Schoo! to tell

Mrs. Shaver her husband of only
five years had been killed. He then
took her home where she, along
with a number of friends and

of the driveway until 7:30 that
night.

“You can’t belleve it,’’ she said
of what she felt while she waited
that o “It takes a while for it
to sink in. You're in a numb slate.

“They wouldn't let me near the
house while they worked. You
want to know what's going on and
yet they couldn't give me anything
solid. They wouldn’t want you to

. trample anything that might be
evidence?) <> ern

Officers were still lifting finger-
prints from inside the house when
Mrs. Shaver was allowed back
inside. ‘*They left black powder in

_ @rug that rug cleaners still can't
* get out.’

She js still somewhat upset
about what happened to the guns
the three intruders were trying to

- take from her home. “The SBI

took my guns," she said as she

examined one of four originally

entered as evidence. ‘Two were

| collector's limited editions. They

* engraved identification numbers
on them and nothing will remove
them. I've had thern to several! gun

mere woo ee nw ww cone come -+---

family members, waited at the end

restorers who said the numbers ~
could not be removed. They
absolutely ruined them."

Bost said he and other in-
vestigators that included Sides,
Tony Wilhite, John Noble and W.F.
Lemmons of the SBI, felt at that
time that Gardner was the young-
est member of a gang and he was
trying to prove himself to the
others by being the trigger man.

He was trying to Impress the
others that he was tough,” Bost

“We're here under Sheriff Bob
Martin's administration to pros-
ecute it to the fullest extent that
we can, including the execution of
the sentence,"’ Bost said.

“The first time I met Gardner
was in a small room in Forsyth
County Jail with Sides and Joe
Tuttle of Forsyth County Sheriff's
Office. They left the roum und left
me in there with him.

“I formed a very quick Im-

ression he was a clone of Charles

about like he was looking straight
through me. It seemed like I was
in there forever with that guy.

‘He was a very cold, callous
individual. J think he is devoid of
any sensitivity of human life. He
didn't really scare me, but he left
me with the impression he wus
indifferent to people — like he
regarded people us objects rather
than humans,”

Mrs. Shaver said she has never
seen Gardner in person. ‘I have
only seen his pictures," she said.
‘I cannot comprehend anyone
killing another person, Even
though my husband was up in
years, those young people in
Winston-Salem had all their lives
ahead of them. They were all just
snuffed out."

-+- The quiet country setting of the --
Shaver home, where squirrels are
not afraid to scamper across the
lawn in their efforts to stockpile
nuts for winter and a rooster
sounds his proud crow seems like
the last place on earth where there
would be heartbreaking sorrow
and bitlerness.

But it’s there and will remain
there until Gardner's appointment
with death is kept.

“Yes, | want to go to that
execution,"’ Mrs. Shaver suid asa
grim and determined look (ills her
normally smiling face. lam
going if l can get that seat. Tim is
working on that for me. He's going
to Lake me.”


sare fis a Pe) cbr ate . > ’ eae,

ie ue sb permit e tae Continued from page 1A
4 lust execution nearly a year ago,

TTT Tet

i oo : Aina : . * e

: Permission

. Sn ee AN . . Sy

Protest.
i Sat. on ies ten vg

| -- prison vigil

mates held candles and one

a e . ‘ butned a shect during the state’s

refuse d ett ta said Bill Poston, a spokesman for
ak. e the Department of Correction.

‘ Peden. ae “The secretary decided it was

, best not to have the public on

os
a. er wits Central Prison properly express:
a et ak ae Death penalty foes vole ri 1 ol paige death sional
moe tae eep y," Poston said.
ud ts e ¥ os want to hold vigil fe: - Creech and . William Simpson,
Bein cay Toh 6. gt | ae the NCCLU Icgal director, said
| : fi. ig penney ; opponents have -
wus = .: icld vigils during executions at
By DUDLEY PRICE aa me Central Prison since the 1930s.
Staff writer oa ah 9 te foe = Since the death penally was -
—!: reinstated in ragany eet oe
: ie oe . 200 protesters olding candles ~
Mageenatr The state corr Ce, oo have stood during executions in a
secretary has refused death: ; ee small grassy: area between the
en, - penalty opponents a permit to oe . prison fence and Western Boule-
f ' stage their traditional candiclight . ~~ - ° . yard, near the pr oer
: ' ‘wipil during th ; aes . Protesters routinely were
th Soe eanvisied murderer at wel | granted protest permils, DY oa
: tral Pet che | ; state Department of Administra:
Se ; tral Frison. oo rs . oo tion, Creech said.
as | The N.C. Council of Churches . : . "But Bounds denied their request
' : and the N.C. Civil Liberties Union: © ° for » permit lo protest the sched-
Pope ee the decision violates the con-. -” oo ee ple gr execution of Julie
ce eee" : ' Stitutional right to free s ee ie 3: ; jardncr, who was convicted of
ro | dth Pp et killing two puople during a rob-
- _ + an they may suc over the matter. °°: ve bery in Winston-Salem. Bounds
ae “ “This is state property, were: .- could nat be reached Tuesday for
Sat cr citizens of the s ns Be acs tg gs le plan ea a a aL ee ee
a er right to b rs tate and we have a, : Pog? we “They encouraged us,to Jook at
i ere e ght to be there and make a,. - - alyernaje. giles ngarby,,—- other;
Ve ae Christian witness of i ‘- state’ Gigs NRO hg agri:
<a 4 é ess 0 conscience... “| state’property. owned by jhe apr.
3 and faith,"’ said Jimmy Creech, . > = Gf _-cujiure department,.thg Governor’,
program associate of the Council a Morehead School far the, Hind fe
of Churches. — = me te, os . across Western Boulevard on the
. ‘ oe ae Dix property, but nonce. of them |
Correction. Secretary Lee: - ; Behn are good,’ Creech saids “It separ
Bounds decided to withhold a vigil rr oe rates us fram Ihe Py en
permit because prison officials ae “We could A, ponte in town -
were worried about maintaining . Te and hold a vigil, but being at the
order among inmates. Some ing - place where it is going on is
sgh ORO DD x See eee eee iniportanl. he said: Pg ”
en . 3 impson ‘said it 1s unconstitu-
See PERMISSION, page I1A_ ‘hb | eM, tjonal 10 deny the permit. "
ial r tae 7 us Hoa Fg “People have a right to gather
“1 ye mo fe ee public forums for {ree speech
os : purposes,” he said, ‘I'm hard-
ds pressed (0 figure out why they
oo think they. can do it without
i a ee re violating the Constitution.
sera ee ef oe “This is a traditional public
eae " forum. The site is separated from
the prison by a huge fence and a
large, channeled stream," Simp:
son said. “Being state property is
: a prime reason why they [the
a - os Ha . ot protesters] ought to be able to do ©
. oa | Poston, the correction depart:
Coat, : ment spokesman, said protesters
oe 5 , ae “certainly are {ree to make any
At se te" _ statements they want to” and
q _ ” deg - haven't. been. disruptive In the
oo ss oF re pust.: : ;
. ; > a Se But during the execution of
a ; ss ee, 2 . . Michael McDougall last Oct. 18,
rane a ‘observers “may have noticed in-
oo 7 inates were holding lighted cun-
id, a ee Lo ane ar _ dies and one inmate lighted a
arn | ny a te - sheet and tossed it from a cell,”
ae ; ate ot ., . Poston said. :
MW eeivirrece “We have to maintain security
Mea aay within the facility ..- and state
Jaw says the secretary of correc:

tion hus authority over prison
rounds,” Puston said.

1-121
* Rule

MEMORANDUM CASES

olina

484 US 1051, 98 L Ed 2a 967, 108
S Ct 1000, reh den (US) 101 L Ed 2d

955, 109 S Ct 4.

February 4, 1988. The application
for stay of execution of sentence of
death presented to the Chief Justice

and by him referred to the Court is
denied.

Justice Brennan and Justice Mar-
shall dissenting.

Adhering to our views that the
death penalty is in all circumstances
cruel and unusual punishment pro-
hibited by the Eighth and Four-
teenth Amendments, Gregg v Geor-
gia, 428 US 153, 227, 231, 49 L Ed
2d 859, 96 S Ct 2909 (1976), we
would grant the application for stay
of execution and the petition for a
writ of certiorari, and vacate the
death sentence in this case.

Justice Blackmun and Justice Ste-

vens would grant the application for

stay of execution of sentence of
death.

No. A-599 (87-6360). Raymond
Robert Clark, Petitioner v Rich-
ard L. Dugger, Secretary, Flor-

ida Department of Corrections,
et al.

484 US 1051, 98 L Ed 2d 967, 108
S Ct 1000.

No. A-541 (87-6196). John S. Gard-
ner, Jr., Petitioner v North Car-

certiorari. Should the petition for a
writ of certiorari be denied, this stay
terminates automatically. In the
event the petition for writ of certio-
rari is granted, this stay shall con-
tinue pending the sending down of
the judgment of this Court.

Justice White would deny the ap-
plication for stay.

Justice Scalia took no part in the

consideration or décision of this ap-
plication.

No. A-616 (87-6406). Calvin Joseph
Williams, Petitioner v James A.
Lynaugh, Director, Texas De-
partment of Corrections

484 US 1051, 98 L Ed 2d 967, 108
S Ct 1000.

February 10, 1988. The application
for stay of execution of sentence of
death presented to Justice White
and by him referred to the Court is
granted pending the disposition by
this Court of the petition for writ of
certiorari. Should the petition for a
writ of certiorari be denied, this stay
terminates automatically. In the
event the petition for writ of certio-
rari is granted, this stay shall con-
tinue pending the sending down of
the judgment of this Court.

February 5, 1988. The application
for stay of execution of sentence of
death presented to Justice Stevens
and by him referred to the Court is

granted pending the disposition by
this Court of the petition for writ of

Sn

+o 9 a praneet
<n el een

nd tel eRe En Sa ea ane

-

TU INI, dO C1Tl Dey Los

Man Is Put a Death
For Double Slaying

During Crime Spree

RALEIGH, N.C., Oct. 23 (AP) — A
man convicted of killing two restaurant
employees 10 years ago was executed
by injection at the state prison here
early today.

The 34-year-old prisoner, John Ster-
ling Gardner, went to his death continu-
ing to maintain his innocence. ‘

“I feel deep regret and sorrow for
the victims’ families,” he said in a final
Statement. “Though they believe that I
did what I was convicted of, I did not.
But I feel sorry for them, that’s all.”

Mr. Gardner was put to death for the
killing of Richard Adams, 21, and Kim
Miller, 24, at a restaurant in Winston-:
sixweek crime spree in wide John Sterling Gardner, convieren
Gardner committed a third slaying, to of killing two restaurant employ-
which he pleaded guilly after his con- ees 10 years ago, was executed
viction in the two others. es i i

As his execution approached, his mi terday in Raleigh, N.C,
lawyers noted in appeals that the ju- |
rors who had recommended the death| voted unanimously to deny a Stay.
sentence to the trial judge had not been| The execution, which was witnessed
allowed to hear testimony about the by the families of Mr. Gardner’s vic-
abuse he had suffered as a child. But| tims, was the 27th in the nation this
the appeals were exhausted Thursday, | year, the highest number since 47 con-
when the United States Supreme Court} Victs were put to death in 1962,

V.¥. TIMES

SATU ROAY
ocr. 24 972

e ress

es


Killer’s written confession released |

WINSTON-SALEM (AP) — Prosecutors have releas-
ed a second, handwritten confession by a death-row in-
mate in response to defense attempts to have his death
Sentence overturned before his scheduled Oct. 23 execu-
tion.

Prosecutor Vincent F. Rabil said that the confession
by John Sterling Gardner nine years ago goes into more
detail than a taped confession played at his trial.

A jury convicted Gardner of two counts of first-degree

“murder in September 1983 in the deaths of Richard A.

Adams Jr. and Kimberly Miller.

thy bales
robbery at a Steak and Ale Restaurant on Dec. 23,1982,

“Before I could control my nerves or remain level. °
headed, I had shot Richard Adams in his face," the’
written statement says. ,

“TI remember Kim Miller begging me not to shoot her,
but I wasn’t myself for a few minutes. But when things
came clear to me, I was standing over the bodies of Kim
Miller and Richard Adams." .

Gardner's attorneys say they have new evidence that
entitles Gardner to a stay of execution and a new
Sentencing hearing.

Gardner's attorneys say that several errors at Gard.
ner’s trial deprived him of his constitutional rights.

Adams, 21, and Ms. Miller, 23, were killed during a

THE ROBESONIAN, Lumberton, N.C., Thursday, September 24, 1992

@
© AO ees © ee

Death-row inmate's

confession used to
stop appeals

WINSTON-SALEM (AP) —
Prosecutors have released a second,
handwritten confession by a death-
row inmate in response to defense
allempts to have his death sentence
Overturned before his scheduled
Oct. 23 execution.

Prosecutor Vincént F. Rabil said
that the confession by John Sterling
Gardner nine years ago goes into
more detail than a taped confession
played at his trial,

A jury convicted Gardner of two
counts of first-degree murder in
September 1983 in the deaths of
Richard A, Adams Jr, and Kimberly
Miller,

Adams, 21, and Ms, Miller, 23,
were killed during a robbery at a
Steak and Ale Restaurant on Dec.
23, 1982.

“ “Before I could control my
nerves or remain level-headed, I
had shot Richard Adams in his
face,” the written statement says.

“I remember Kim Miller beg-
ging me not to shoot her, but I
wasn't myself for a few minutes.
But when things came clear to me, I
was Standing over the bodies of

~

Kim Miller and Richard Adams.”

Gardner's attorneys say they
have new evidence that entitles
Gardner to a stay of execution and a
new sentencing hearing.

Gardner's altlomeys say that sev-
eral errors at Gardner's trial de-
Prived him of his constitutional
rights,

Most of their claims center on
his trial attorney, Bruce C. Fraser,
and much of their new evidence
comes from Fraser’s ex-wife, Robin
Hamilton.

They say that Fraser did not ade-
quately represent Gardner because
he was addicted to alcohol and co-
caine and did not present informa-
tion that could have averted a death
sentence.

But courts have already ruled
against Gardner on that and other
issues. ,

Gardner's attorneys said they in-
tend to petition the U.S. Supreme
Court, but the court has twice de-
Clined to hear the case. They also
can ask for a clemency hearing by
Gov. James G. Martin.

The Review
Thurs., Sepl., 24, 1992


i

ea nag = hiee denescempecenniscanns.

a

Te ee oe ee

18A.

The News & Observer, Raleigh, N.C., Thursday, Oct. 8, 1992

The News & Observer

| advise and enjoin those who direct the paper in the tomorrows never to advocate any cause
for personal profit or preferment. | would wish it always to be “the tocsin” and to devote
itself to the policies of equality and justice to the underprivileged. If the paper should at any
time be the voice of self-interest or become the spokesman of privilege or selfishness it would
be untrue to its history. — JOSEPHUS DANIELS, Editor and Publisher 1894-1948.

Free speech on death

If Governor Martin believes in
the right of North Carolina citizens
to express themselves, he will allow

death-penalty opponents to hold a.

protest on Central Prison property
this month during the scheduled
execution of John Gardner.

Martin’s correction secretary,
Lee Bounds, seems motivated by
excessive security consciousness in
refusing demonstrators a permit
for the Oct. 23 execution. His action
was precipitous and cavalier, and if
he doesn’t reverse his decision,
Martin absolutely should.

- Death penalty’ opponents have
held vigils during executions at
Central Prison since the 1930s. In
recent years, they have gathered in
a grassy area near the prison
entrance on Western Boulevard.
Holding candles, they have peace-
fully and responsibly exercised
their constitutional rights of free
speech and assembly.

Bounds has no basis for his fear
_that the protesters, who would be at
least 100 yards away from the
prison’ building, would somehow
‘contribute to inmate unrest while
Gardner is being put to death.
Prisoners usually find some way of
demonstrating during executions,
and Bounds knows it. Those demon-
strations can be adequately con-
trolled with a range of precaution-

(hs

Reda ™
ae

ary tactics available to prison
officials. Unfortunately, Bounds’
clumsy attempt to silence death
penalty critics risks making mat-
ters worth.

It is no solution to suggest, as
correction officials have, that the
critics should just hold their gather-
ing someplace else. They are enti-
tled to protest in a way that calls
attention to their views and makes
their actions meaningful. Prison
property is public, after all, and
when someone is executed, the

‘deed is done in the public’s name.

Many North Carolinians have
deeply genuine objections to the
death penalty. One of the most
compelling arguments against it
comes from the conviction that
government ought to set an exam-
ple for its citizens. When the state
coldly and deliberately carries out
a killing, it diminishes respect for
human life and teaches people that
some lives are without value.

For state government now to
hinder citizens from expressing
what’s on their minds also sets a
bad example by devaluing a foun-
ding principle of our democracy. As
North Carolina’s constitution says,
free speech is one of the “great
bulwarks of liberty and shall never
be restrained.”

ee ee

~ saree to


fon - Selon TJaucnel *

7/2/92.

i ad

John Sterling Gardner Jr.’s execu-
tion date has been set for Oct. 23.

Se

Gardner to Aj eal His Death Sentence

i Convicted killer says
former attomey failed
to introduce evidence

By Ken Otterbourg

JOURNAL RALEIGH BUREAU

RALEIGH

Michael V. McDougall used « butcher

knife. Anson Maynard duinped his victim
in the Cape Fear River. :

»

The crimes were different. but the men
shared something in commun. When
they were convicted of murder and

ired their date of execution, they used
the same tactic: They blamed their attor-
neys and accused them of breaking the
law.

McDougall’s effort failed. He was exe-
cuted last October. Maynard succeeded.

Gov. James G. Martin commuted his sen-
tence to life without parole in January.
And now comes John Sterling Gardner

Jr.. who was convicted in 19833 of killing

two employees of the Steak and Ale res-
taurant in Winston-Salem during, a cob-
hery. With his date of execution set for
Oct. 23. Gardner is now repeating accu-
sations about the conduct of his trial
attorney, Brice Fraser.

In papers to be filed today in Forsyth
Superior Court, Gardner claims that Fra-
ser was abusing cocaine during his trial.
Gardner's current attorneys say that is
why Fraser failed to bring fonward evi-
dence that might have convinced a jury
to spare Gardner's life.

The allegations against Fraser — al-
though denied by prosecutors — add to
the past criticisms about attorneys de-
fending people charged with murder.

“There's a2 significant problem about
how capital cases are getting Cried in this
state,” said Marshall Dayan. an attorney
for Gardner and a stalf attorney with the
N.C. Resource Center, a state agency
that represents indigent tumates on
death-row. “Our courts have not taken
the problem of capital representation se-
nously.”

McDougall’s original attorney, Jerry
Paul. was accused of smuggling drugs to
his client in jail and. during the Crial, was
appealing a suspension of his license to
practice law. One of Maynard's attorneys
was aecused in court documents of plot-
ting the murder that Maynard was
charged with.

Barry MeNeall. a special deputy attor-
ney general. said. “Like Jerry Paul. Fra-

See APPEAL, Page 18

APPEAL

Continwed From Page 13

ser is an easy target because of

. problems he’s had.” He said that

even if Gardner's allegations were
true, it wouldn't make a difference.
“Legally, it’s not enough to claim
what they’re claiming,” McNeill
said. In previous appeals, he said.
the courts have already ruled that
Fraser's failyre to produce evi-

dence on child abuse Gardner suf--
fered as a youth wasn’t damaging. -

Gardner's latest motion is similar
to allegations recently presented to
the federal courts. At the center of
both filings is an affidavit by Fra-
ser’s ex-wife, Robin Hamilton, who

claimed that during the tral. Fraser
was so high on cocaine that she
sometimes had to drive him to the
courthuuse. Ms. Hamilton also al-
leged that Fraser told her he was
forced to take Gardner's case as
punishment fur crossing a judge
and that it “wasn’t worth his time
to put much effort into the Gardner
case."

McNeill said Ms. Hamilton's affi-
davit “is a little suspicious, particu-
larly from an ex-wife.”

The couple divorced in the mid-
1980s.

McNeill called the latest mancu-

_ ver a “public-relations push” that

“fails to raise any new allegations
that Fraser didn’t adequately repre-
sent Gardner . . . They're just drag-
ging him through the mud. Nobody

at the trial ever indicated that Fra-
ser was under the influence.”

Fraser couldn't be reached for
comment. He has other legal trou-
bles. Two years ayo. his license to
practice law was revoked by the
N.C. State Bar for three years after
he failed to appear in court to rep-
resent court-appointed clients. Last
January, he was charged with traf-
ficking cocaine after a raid on a
motel in King. His trial in Stokes
Superioc Court is scheduled for
Sept. 28.

Thomas Lunsford, the assistant
director of the State Bar, said,
“There have been instances where
the lawyers have been involved
with substance abuse.”

Lunsford said his organization is
trying to encourage competent at-

turneys to represent poor people
accused of murder. but added. “It’s
a problem finding enough lawyers
to meet the demand.”

There are now 7:33 prisoners on
death row in North Carolina.

Besides the appeals process,
Gardner's attorneys will also be pe-
titioning Gov. James G. Manin to
grant Gardner clemency.

On Jan. 10, 1992, Martin com-
muted Maynard’s sentence a week
before his scheduled execution:

McNeill said Gardner's chances
with the governor wouldn't appear
to be good, because of the brutal
nature of his crime and because it
was unlikely a Republican governor
would grant back-to-back clemen-
cies.


Dear Governor Manin,

WE, THE UNDERSIGNED, OPPOSE THE EXECUTION OF JOHN STERLING
GARDNER, JR. John Gardner’s life has been a failure of the system. For
certainly John Gardner is a product of that failure--~ of a social service
system which failed to rescue him from a violent and abusive home, and of
a criminal justice system which failed to ensure a fair trial with effective
assistance of counsel.

We urge you Governor Martin, to grant clemency for John Sferling
Gardner, Jr.

SIGNATURE ADDRESS CITY STATE ZIP

PLEASE RETURN TO: NCADP, 1325 G ST. NW, LL-B, WASHINGTON DC 20005


Oh.) 1 eRe
Wh
PERSE

(ewo + Oboe , [1l-2a-9/

ennn WA eat

‘Court won't delay
“January execution...)

‘. WINSTON-SALEM — A federal .
‘appeals court has refused to delay __
the execution of John Sterling
Gardner and has set a hearing on |
his ‘appeal for Jan. 6, four days
is ‘ - before his scheduled execution.
Ke ‘- Gardner, 33, is scheduled to die
; Jan. 10 in the killing of two
‘workers at the Steak and Ale
=. restaurant in December 1983.
a. . -¥ The decision Monday to deny
: . Gardner’s request for a stay of
execution surprised both prosecu-
ig } tors and Gardner's defense attor- .

— peys.

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NEWS SUMMARY.

Death row
_ inmate files
challenge |

Continued from pare 1A

the influence ina court of Jaw or
representing Gardner under the
influence,” MeNeill said.

Fraser received a three-year
suspension from the N.C. State
Bar for misconduct and negli-
gence in connection with his rep-
resentation of clients other than
Gardner.

In a telephone interview Mon-
day, Mraser called the allegations
“spitefully ludicrous” but de-
clined to discuss them further.
“Tn sure the Attorney General's
Office will put something on in
opposition to whatever allegations
they are making,” he said.

Lawyer Marshall Dayan of the
N.C. Resource Center, a state
avency that represents indigents
on death raw, say the evidence
apainst Fraser is substantial.

In January, Fraser was arrest:
cil in Stokes County and charged
with trafficking cocaine. accord:
ing to arrest warrants. The charg:
es are still pending.

In sworn affidavits signed in
June. Fraser's former wife, Robin

(\N6
a \\\a~

TUESDAY, SEPTEMBER 1,

Hamilton, said that Fraser not
only used but sold drugs and that
he “had a tendency to go on
binges and his Jaw cases would
suffer because of this.”
Hamilton said that on one occa-
sion Fraser partied all night after
getting a call from one of his
clients, the Hell’s Angels.
“The next merning, Bruce was
so loaded that he couldn't drive,”
Hamilton said in the statement. "I
had to drive Bruce to the court-
house so that he could appear for
the Gardner trial.”
Dayan said that during the
sentencing phase of the case,
Fraser failed to present “critical”
evidence that Gardner was the
victim of neglect as well as
emotional and physical abuse. He
was once shot by his father
because he brought home a bad
report card, Dayan said.
He said Fraser also had a
conflict of interest between Gard-
ner and the Hell's Angels, who
were considered suspects in the
robbery and murder.
In June 1990, the Slate Bar
revoked Fraser's license for three
years after jt found that he failed
io appear for a number of his
clients’ cases. In Its ruling, the
bar wrote that allhough Fraser
had a reputation as a “capable
and effective attorney when sober
and not using iNegal drugs.” he
was an_ alcoholic. “engaged in
extensive use of cocaine.”

1992


ae |

~. At this restaurant, a greedy killer blasted assistant manager Richard Adams and barkeep Kim Miller, then made off with $2,700.

DIXIE’S GUN BUFF
BLASTED TWO!

S SHE PULLED into the park-
ing lot of the Steak and Ale
Restaurant that Thursday

morning, the assistant manager thought

something was odd. It was about 9:00
a.m. the day before Christmas Eve 1982
in Winston-Salem, North Carolina.

Several employees were shivering
outside, knocking on the front door for
someone to let them into the cream-col-
ored, stucco restaurant on busy Stratford
Road. Manager-trainee Richard Adams’
car was in the lot. Why didn’t he let
them in? the employees wondered.

The assistant manager wondered also.
Adams should have finished his late
shift hours ago, the woman knew.

The assistant manager unlocked a
door and walked inside. She found the
lights still dimmed from the night be-
fore and music still playing. Walk-
ing through the deserted dining room to

56 True Detective

by JOHN GRIGGS

the rear office area, she noticed some
greenbacks lying on the floor outside
the office door.

She pushed the door open, her eyes
widening at what she saw in the small
office. Richard Adams, 21, was sitting
in a chair behind the desk, his head cov-
ered with blood. It looked as if he had
tried to stand up but didn’t make it.

Bartender Kim Miller, 24, was lying
on the floor at Adams’ feet, her head
surrounded by a puddle of blood.

The assistant manager ran from the
office screaming. Before she could com-
pose herself, she responded to a ringing
business phone. It was a relative of
Kim’s checking to see where the woman
was.

JS 4 7, A

The assistant manager told the rela-
tive to come to the restaurant imme-
diately. She then hung up and called the
Winston-Salem Police Department. As
the woman waited for the police to ar-
rive, she noticed that the bar had been
only partially cleaned. Kim would never
have left it like that, the assistant man-
ager thought.

Within minutes, Detective J.G.
“Jack” Bullard of the Winston-Salem
Police Department responded with sev-
eral fellow officers. Emergency workers
ruled the two victims dead. Bullard
studied the bodies. Both victims ap-
peared to have died from shotgun
wounds,

Richard Adams had a large wound to
the right side of his head, while Kim
Miller had a large one to the right, back
side of her neck. There were no signs of
a struggle in the office.


of a man ba bad worked with.”
radevt Gardner’s lean arms — several’ j
plied during long drinking binges — is
90a on his right bicep. When Marlene —
said, he had a dagger put through the

e heart,” he said and laughed. .
a Harley-Davidson eagle, the symbol '
by biker gangs. The tattoo Is his tie
imires. But he never joined a gang, he
t like being told what to do by peers.
s rejection of gang authority with his :
, Which he joined when he was 19. He
discipline of basic training at Parris

specially liked qualifying with weap. -
oby traps. He said that his love of guns

aught him to shoot and hunt at age 7. .
nbarrassment, Gardner said that one -

the Marines was the lure of travel and .

at his father described in the Orient.
itary life apparently wore off after
ling as a heavy equipment operator in, :
potless military record and a promis-

to go to Officer Candidate School But
ismal series of infractions and deser-

os

a BL a ate SoBe
* + ah oor 8 ae £ese 7! 3
e struck up a conversation with Ms.

oF So Se

she said, that she kissed him |

bh x Pa

tha

- ‘of one as
: pes a aS

¢

=
~~

ae | felt:after the first one.

“there wasn’t any turning -

point. You're just.as guilty

?

a°% 6
“3°

“gle

‘ bg

‘ But the love faded in mid-January 1983, and Ms. Giordano
broke up with Gardner: She didn’t like his father, she said, and
“She didn’t like the people Gardner hung around with.

_, Ms. Giordano said that she particularly did not like to be
around Gardner when he was on “crystal” — a type of amphet-

amine that’Gardner said he and his friends injected before’
. Fobberies and burglaries. Gardner

is a pussycat, she said, but
-the drug made him too aggressive. - : one
' Gardner said that crystal gave him a finely
he said that it made him aw
movement . oi co
Crystal probably kept him and other people from getting
killed because of sloppiness during robberies, he said. | -
Gardner said that he took the breakup hard. He started
drinking heavily — he said that he had had drinking problems
during his marriage — and started dealing crystal and mari-
juana and committing burglaries with his friends in Forsyth
County. ba Fs . . : ; e ‘ , —
~* Marijuan
recreational drugs. He said
gens like LSD or MDA. :

are of the slightest sound or

< < .
.

“. “Whoa!” he said, drawing ba

+

—
2

ae

10. So why stop?”

ee

toned edge ha
needed to pull off a robbery. Snapping his fingers for emphasis,

a, crystal and Jack Daniels were Gardner’s favorite

eG TLS Te RY See ee ogee a eee sy la ty : .
Sime AA AE Sade Ata Sete ee A ea Ee Te

Pte oo me a

= ae x ree ati See . spas oes $
avr XCCUlIOn: 4
“Pd rather know about it e “E
“and be prepared for-.it.” °’: face of death. It bothers me, oe
ee ity, we ea ke but it. doesn’t ‘scare ‘me.”::
| eos : Death’ “S

ower.

he regrets all but one of his crimes — when he robbed a drug
dealer who was charging high prices for low-quality marijua;
pa - . > ’ pe, is :
A robbery that he particularly regrets was committed‘on
_, Feb. 2, 1983, at a house on West Clemmonsville Road. Friends
“who did electrical work there had told him w
... Would be and when the house would be empty... -

Gardner said that he always knocked to see if anyone. was
home. He was shocked when a woman answered. |.

=
e

amble ended on Se t 22, 1983,

nes -everyone.” .- = ar

here valuables

7

-is ‘inevitable for

"363

xP

~ere
-e

~~

.
=

-very different from his‘usual moods during their hourlong
visits once every two weeks. - Soo a ee
-» “He wasn't there,” she said. “It was like he was in a different
world.” She said that it was the first time Gardner realized that
he might be executed... 0022 7 see le bees
: She said that Gardner will not talk to her about the execu-
na That eatsat her, she said, because she wants him to face
Ms. Giordano said that she will not marry Gardner until his
. Appeal comes through and he Is out of prison. It would be unfair
‘to her and her 4-yéar-old daughter, Tracey Angel, she said. But
she will wait. ~ Ge" 22 . ~ el te Be,
. “He still has my heart,’ she said. “It’s hard, because I realize
I may never hold him again.” ake. he mo,
'_ Gardner said that he was a little depressed after the execu-
tion because he knew-Hutchins, who was convicted of killing
. three law-enforcement officers in Rutherford County in 1979.
He had talked with Hutchins and had played cards with him.
“You have to have some feeling for. the guy,” he said. ©
But Gardner talked most about Hutchins in a clinical way —
about legal steps that could have been taken to fight the
- execution © = ee uate. BR Ae
. ‘Nowadays, Gardner is’ consumed with two things — his
- appeal’ which the'N.C. Supreme Court is scheduled to hear on
June 11, and Ms. Giordano. : :

ao
vr

04 8 ow

Flat Sol BataKtnk 0

otf ee PO ree
Ce” ee

Medd Reel ae a oO
own “2 gs whet ae race

+
cy .

i abo

Feo. em a
.

os if, ©

Pe & POW OW Hee

bad

> Although Gardner beliey

‘

har haat

& *

PAP ae? 9g

~~


2 Restaurant |

Employees
Murdered

By Keith Lawrence
Stett Reporter
Kim Miller, 2¢, lived what many people
would call an All-American life. Richard Ad-
ams, 21, had recently mnoved to Winston-Salein
excited about his new career in restaurant
manugement.

% Hut the two young people,
4" both employees of the Steak
and Ale Nestaurant at South
Stratiord and Pethesda roads,
- were found shat to death yes-
terday morning in the restau-
rant's oflice

Miss Maller, a bartender who
lived in Yadkinville, and Ad-
Mem ains, the assistant manager,
apparently were killed shortly,

anLen alter the restaurant closed

around midnight Wednesday.

An employce arriving for work about 8 a.m.

yesterday found the bodies in a small office at
the bach of the restauraal.

Miss Miller had been shot once in the neck.
Adams had one gunshot wound in the head,
police said. Rath probably died immediately,

hind 6) Da Ti te | A eV R os Tees st
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4
tr

~esaid a medical examiner at Forsyth Memorial

Upspital. The bodies were taken to the slate
medical examiner's office in Chapel Mill.
Polwe say they have no leads in the sholgun
slaymngs. They are not even sure whether rob-
bery was a motive in the killings although
some money was taken trom the restaurant.
Sgt. F.E Mason ol the Police Departinent’s
Cruninal lavestigation Division, said yester-
day evening thal there were no signs of strug-
gle in the office and no indica-
tions that anyone had forced
his way into the resiauraat.
The front and side doors of

the restaucant were locked =

when the employee arrived
yesterday moraing, lice
said. Police found a back door
walocked, but did not know
when It had beea unlocked.

The: cash registers were

empty. Police sald some mon-
ey was apparently taken irom
on top of the desk la the o
where a night deposit was dp-
rently being prepared.
lowever, police sald some
monry was left behind in the
sate, which was closed but un-
locked, and in desk drawers.
Miss Miller and Adams
were last seen around mid-
night, when other restaurant
workers leit for the night, said
Lt. J. KC Raker. Police believe
the shootings happened be-
tween midnight and | a.m.

Both bodies were discov-
ered by a cook al the restaw
rant who came to work about
9 a.m. Miss Miller's body was
found lying on the floor in the -
middle of the 10-by-20-foot of-
fice. Adams’ body was found
slumped against a filing cabl-

net. . *

The Steak and Ale Restau-
rant was closed yesterday. A
restaurant worker said it
would remain closed until
Monday.

Miss Miller, who lived with
her parents, David and Char-
lotte Miller, in Yadkinville
had worked as a bartender at
the Steak and Ale Restaurant
for four years, her mother
sald last night.

The Millers, consoling each
other, stood in the parking lot
of the restaurant with em-
ployees and friends of the vic
tims yesterday morning while
ae investigated the shoot-
ngs.

Investigators at the Steak and

Miss Miller was described —
by people who knew her and
had worked with her as beau-
tiful, energetic and outgoing.
She graduated In 1977 from
Forbush High School In Yad-
kin County. While there, she
sang in the school choir and
acted in plays. She was &
cheerleader.”

She also worked for a year

and a half during high school
us a nuree’s aide at Lule Con-
rad Hoots Memorial Hospital
in Yadkinville. Gary White,
the hospital administrator,
said, “She was extremely
well-liked. And she was live-
ly.”
: Alter graduating from high
school, Miss Miller worked
for three months as a wallress
at Sam's Gourmet restaurant
in Thruway Shopping Center.
She then got a job at Steak
and Ale.

“She liked her job and she
liked the people who went lo
the restaurant,” said Mrs.
Miller. “Kim had told me she
was content. She felt secure in
her job.”

Adams, whose parents live
in Grilton, a small town in the
eastern part of the state, had
recently been promoted to as-

At M
5a@

mata |

“ey,
ae
“4
Wooo! A": hs
Bef Prete By (owere teayaeo!

Ale Restaurant off Stratford Road where two employees were found shot to death yesterday

a _.eerea
tant manager of the restau-
pony He aoa auieed at Steak
and Ale for two months, pe
lice said. « :

Last spring, he graduated
{rom Emory and Henry Col-
lege in Emory. Va., wilh e@
degree in business manage
ment, according (oa neighbor
of his parents, Mr. and Mrs.
Augusta A. Adams.

In August, he was accepted
Into Steak and Ale’s maenee
ment training program. He
worked at the High Point res-

August to Octo”
ber We was then transferred
iv Winston-Salens.

He was promoted in early
December alter completing
the program. “He was ex-.
tremely excited about being
promoted,” said Linda BDal-
dree of Griftor.

Mrs. Baldree said Adams,
who collected: antiques, was
one of the finest people she
knew. “He had more friends
than you could count,” Mrs.
Baldree sald. “He loved peo-
ple. He had friends 60, 70
years old.”

1QA-AY-8a


off with $2,700.

-t told the rela-
staurant imme-

p and called the .

Jepartment. As
he police to ar-
ie bar had been
im would never
’ assistant man-

Jetective J.G.
Winston-Salem
ynded with sev-
rgency workers
dead. Bullard
ith victims ap-
from shotgun

large wound to
ad, while Kim
) the right, back
vere no signs of

A mystery man named Johnny was supposedly the
perp’s partner in crime, but after much digging,
probers decided that this so-called “Johnny” was
actually the perp’s alter ego and the perp himself
was a “cold-blooded killer who didn’t intend to

leave any witnesses” when he blasted two.

The office safe was open, but a few
bills had been left behind. Other money

had been left in the desk drawers. The -

killer, or killers, had apparently taken
money from the desk top, where Adams
had apparently been preparing his night

deposit. Officers quickly determined

that the cash registers had been sacked
as well. .
With co-workers guarding the restau-

‘ rant door, Detective Bullard and his fel-

low officers carefully combed the office
for potential evidence. It was tough
going. The killer hadn’t left behind his
spent shotgun shells: that was imme-

_ diately apparent.

The lab technicians made an earnest
stab at lifting what prints they could, but

they weren’t holding out much hope to
Bullard that they’d find any usable ones.
- Bullard and other officers interviewed
the assistant manager and other work-
ers. The last employee had left the vic-
tims at the restaurant at about 12:20
a.m.
When Richard Adams had walked
that employee to her car, everything had
seemed fine. The assistant manager had
called Richard about 12:25 a.m. to see if
he was having any problems. Over the
telephone, she had helped him balance
out the day’s receipts.

Detective Bullard found that the back
door had been left unlocked. Richard or

Kim must have let the killer in. Restau-.

rant supervisors told officers that

$2,696.55 was missing from the restau-
rant. a

As Bullard cleared the crime scene,

workers loaded the two corpses onto a
truck to take them to the state medical
examiner’s office in nearby Chapel Hill
for autopsy. .

Back at his office in downtown Wins-

_ton-Salem, Detective Bullard realized

this would be one tough case to solve.
Robbery seemed to be the primary mo-

tive, but why had the killer left cash be- -

hind?

In some ways, the crime seemed hap-
hazard. But in other ways, Bullard knew
he was dealing with a pro. The killer
knew enough not to leave behind clues
like spent shells or fingerprints.

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FOSTER, Ben, and JOHNSON, Dudley, blacks, hanged

C

i Roan et ae ka hana oe

-

aes

i eee Cae « i _
. Seale)

wwe 7 . » te pat tei fie eit om, Wee) Py diet. pane

“eo N.C. = Qounties — Burcombe - Crino and criminals

{NEWS AND OBSERVER, RALEIGH, N. C., SUNDAY MORNING, FEBRUARY 28, 1954"

aim : “! j\When the death penalty for horse} Alexander, who in 1898 had come

.,theft was abandoned there was)
a ; ‘ to work as McClelland’s clerk
Some talk of sparing first degree ‘ind. amistant

; -..\; 4jburglars, but not much. The State 5 nla ——
Be) 2 lised to hang them, later elec- “Alexander had a ‘cot in that
Eo sajtrocuted and now, on occasion, (4 celltike room. with his trunk
bs: * puts them in the gas chamber. |j shoved under it. He had no stove,
Yet the profession of first ont a shutter in the partition

: \stee burglary has its practition-¥; stood open to admit warmth from
-- )“yers, and its fascinated observers % the store’s wood fire. Samuel
-“s\c%as well. For their sake, there Alexander ate his meals at the

BS .:, might be celebrated a shining ‘itable in the McClelland home
fori 4 Seniesa in the annals of the :! next door, and went to -lodge
=. > /‘p2,jerime—February 8, when ot the. i{ Meetings with his employer. It.

pov st"ired what used to be called the'iwas his dyty to open the store

. “Sensational Emma Burglary of }!in the mornings, and to lock it
1901. Hup at night. Because of his re-
: sponsibilities,. and perhaps from
For this event abounded in sus- }.a youthful romanticism, he kept
‘t;pense, violence and drama to an ¥a big .44 caliber revolver on the
,fextent that makes it sound like { chair beside his cot.

{a Hollywood horse opera or af February 8, 1901, was a day
‘;atelevision mystery play. Connois- | of drizzling rain, and the night
: Xlseurs may search in vain for any | brought chill. McClelland had
“item of lurid melodrama over-j gone to bed early at his home.
) Jooked. The story of the Sensa-|Samuel Alexander swept the
-> ¥ ‘tional Emma Burglary of 1901] floor and straightened articles on
'.,..ineludes conspiracy, defiance of | counters. We cannot doubt that
‘yi. ythe law, devotion to duty, the | he was happy as he closed, lock-
Ki ; rattle of gunfire, the flash of|ed and barred the front door, at

',;Steel, the thud of fists. Young] about 8:30 p.m. Me may even

Yatncies i te brah ie ate es

“We've

You’d better obey orders.” ‘

Obediently Samuel Alexander |i:
raised his hands.- Another mask-
ed figure, also carrying a pistol, k'=?.%
appeared. Then two more, who vig 4d
Stood just inside the threshold. ff

A nudge of a gun-muzzle im-{ iA
pelled Alexander toward his bed- ee
Toom. Obediently he led the way. ae
Light streamed in through the se 4
open shutter, and one of the rob-t!
bers snatched Alexander’s big Fo. A
revolver from the chair on which .“}.!-
it lay. Hands patted Alexander’s [™.<’\

pockets,
a watch.

come _ for

taking some

ic A co
wef ‘
; {Lhe Famous Emma Burglary |
pte et Mn ae

e: _Piitor’s note: The two stories on this page His name was Alexander —] He left a lamp burning in
3 2]. Fin, banly Wade Wellman ef (C Nene Samuel H. Alexander. the main store, raf senal aals af:
ae \ tory ane tele UP with Stk’ teenie Emma was a tiny community | customer knocked to make a late |”,
bs > S44 accounts as these. The drawings are bein Buncombe County, on the] purchase. As a matter of fa
Ey! on Observer feb ing cra west rr | = rienok Broa one was knocking right now.

park? eye ere rae ee ae ince » Asheville’s glittering tM
: “| _ For those who find life in North |borders have extended to swallow i Arcee t and tele 3
7 ‘¢] Carolina insupportable, dull or /Emma, but then Asheville was a the front épor. “Who is it?” het
B.... -./\ Painful or otherwise too unre-/small, tidy resort on the other cai” Pee alles) 2:

, y warding to maintain, a number |side of the river. Emma boasted] «we want to come in,” re- 37%
§ 4 0f interesting ways to die may/a handful of houses, a railroad] plieg a voice outside. “We vf tes
r. = 4 occur. The present narrative will] station, and a thriving country coe celten ead fens.” e want 13%
A |. qnotice one such way — being{store that was owned and oper-¥ Alexander lifted the ba dteee
f.|found guilty of first degree bur-f ated by D. J. McClelland. turned the key in the locket} 84
oan . glary. ce Slee e Q art 1 - Ne 4.
gee { Ping Quarters At that same instant, a heavy [*"*.:;
5 “ty thy Incioded among capital offensesk Vided by partitions into two door made him step back. A f---
a ve ‘the breaking into and entering} ‘hambers. The larger of these] sturdy figure leaped in. Alexan-
A Sa home without the consent of /5¢rved as a storage space’ for§ der Saw a masked face, a levelled f°
See : the resident or residents of thati|800ds not on display, and the] pistol.
RAS retinage onan? there present lisnaller sleeping quarters for tall] - “Hold up your hands,” growl- fi. \’:
bays ,{wide-shouldered young Samuel} ed the voice behind the mask. [

business. }«.”

coins and{

Back across the floor they led fix

Alexander. The leader threatened
him with
“Open that safe,’’ he commanded. oh

“I don’t know the combina- !
tion,” protested Alexander.

his own

Opened Safe

The other man drew a long, f°‘.
Straight knife. It gleamed cruel- \ gn
ly in the lamplight. Alexander f.\¥ \
stooped and spun the dial and the & » "=f
safe door sagged open.

revolver,

At once the gang leader put £3: **

his own

and laid Alexander’s big revolver |:
on top of the safe. He knelt and }::
thrust his hands into the safe,
beginni pock

eginnin

24." ait was over, everybody was hap-
apy about the whole thing, with (><.
the exception of four melancholy [Y »
‘.“sarmed burglars who tried their
““Itricks on the wrong man. :
“ 4 : Ae « hee ym,

WT Pe Te TORS

Eee sa

tA

5

yee phe y

Wee TT
on

“
#

“love is in it, too, gallant and suc- | have sung or whistled.. Why not?

‘e"eessful, striving against long| Four days hence, and he would
45%: -<4odds. Finally, it is pleasant to| marry Eva Terry. She was a girl
aay  yAnote 52 years later, sterling vir-| of charm and. 1s events would f—
Fi: < sa tue triumphed in the end. When| prove, loved him dearly.

+ oe Ee eee ti ve

Ah By ee Ce Ah ia i
4 3.9 7 .

“AE A Le 2 WT vis .

ae, a Ki

gun in his

to fill his

7 aoe

hip pocket }

ets. His §:

at Asheville, NC, on February 26, 1902,

HS Esinaieleeniee

‘DIES Seti ts


FOSTER, Ben, black. and Tei soceseu teen secrecy JOHNSON, RAPA Dudley, white
hanged at Asheville, Wortly Carolina, on February. 265 1902.

at 10 O'clock.

d cipantic, aonprevedented
1 This monster. Mill End
of anything of the kind

bargains and this is the
ever had—but not last.

mesLast
©] from, © but what you do

i
Ject to put one of these
must move them.

LF ani

Niger

CSA See ORES
vt Lee, Gorman mehe, worth ep

eh -z Arsh eae aon |

06 Weed Hats. worth The to
EME PRICE Sooo coe Oe

ot Cambio Plamoel WiLL END
* ‘ * toe. whe

4 tetand mtr Lhe tie Bind be
iy rece - ns pay eed pa

ae i at 5 es Sdeurede MEL4S Racis 8c
oa ey pee: pe i] an os Me rer ‘ So pbedant

sctaapsas arc

MOTELS

OEE een tae ree


poched Canton Flannel, MILL END

«

Et from, but what you do

pect to put one of these
¢ must move them, _

SAKIA Gloves, best Gorman make, . ah
ae pels. MILL END oes bye A

E> tidrem’s Bhool Hats, worth Tha te

Mth; END PRICE J caispvlatarntera Oe

Sea Intand Domestit: the 10c king. =
END PRIC® ..c0.0 0... repre td"
te Bedspreads. MILL END ef

Po SSLEN NTO CCROR SESS ewig ad vereene 7 $8e

“THE TAVERN -
NEW BeOaTuR. ALAB AM,

EACLE L
_.

jow Surel] |

a

re x

.
3
z

by many ‘exciting incidents,
hich & flancen tame to a hospital
frie@ the man the burglars
teved to have wounded to the
and whose bravery called forth

Of praise from Charles Bmory
th, @t thet time Postmaster Gen-

* THR CRIME. *; Se
~ The crime. wah ‘committed Im the
combined postoffice and atdfe kept by
Samuel Alexander, at Kmma, ‘a ttle
bamlet, a few milea ont of Abhevitie
én the night of February 1, 1961,
Pour men piagned -the robbery at
Asheville, walked: down the railroad
oor under eyeeaat
Broveries and forced him at
weqgral to fake them to
re A

a2
44

zs

Zea
BB

ae

5

"Foster jotuing Mash ory Bi
open kntfe In his hand which A
(Cutting his hand.

ashanti

FR.
ales
125°
ie
ant

ef

tatense

f
ei

FER
ca
steered

rs
ia
i

i

Hig: fancee

FE
ge
§
vj
&

HSLIvE

ie thai
ee
ie faseitl
Heel
bitte 23

i
E
i

2% o

i

ATH

FE

‘es

_ Washingtoa,’ Feb. 36.—In the course| Chicago, Fe® 36-4 wa

Of hie examination today before the | that

General in Manila during the Ameri-
tan milf

Outbreak fn the followin
REMOVED HEA
General Hughes
ditten of the civil

FRISCO SYSTEM.

womens sad gitia tn
Senate Philippine committee, General] were being drawn into com
Hughes, who was Provost Marahal manufacturing pursuits

jeopardise the welts ‘sh

~~ “ABSORBS RAILROAD |

%

Toads projected
territory. » The
Bouthweatern will

i
E

i

fuperinten

| National Education Aaso

a here. His 4ad
a he, “fully two regiments would|« popular feeling tn the
have been disabled by the time of the | neusanés oF

UDGE ART

W'cOko GETS

DANIEL’S PLACE

Re my etnany on at ‘

edutat

parts of the compass, and

tarned| were above all. sordid :
aver by the Spanish authorities when | pisuded. 4
Manfla wan surrendered. There were NO PROVISION FOR MO

Ty

H

:
mg

seat

ee OP eee

biiet-n "ihe. seth icles ham

Cs al carn ld Sake a oe are a , q
+e fre F Governor Charles B. A cock Ber, ao oe ets Be ROR 2 ROO ae ay fo aah
door}returned to help their friends rise swiftly wi Poh Meee SE Seen bere Bote Bg TSE gy
: ; F y wired for Asheville’s two k °°: - RET ARCO EPCOS OF FORME CETTE LS 9 TT 916 a vi
. Watched | silently, motionlessly, =~ Tew Still ie et militia companies to mobilize and the fight occurred, his door|] y,own Miss Cyi JM
fs even timidly. 0 follow, but his -knees d}5 inet b ] ‘and the shutter in the partition h s arriving
F Everything that had happened]and he ‘fell, half-fainting. He Feb a. Ps b en ence. On F- : + hed been aes y wie cole doors|{-""“ aer the rotation
q to Alexander since the entry of/managed to yell once, at the top, ruary 9, Alexander, fighting } - had been open. cade ut under the rotat
q the quartet had struck him-aslof his lungs, for help, and Mc- £0F life, roused dreamily to find = jand windows were his reliances}< no Randolph’s time
‘offensive and distasteful in the|Clelland came racing from his Feud Sweetheart sitting beside f\ + aks dil eect te fo. It was ering
= . : ice Furchas, in ( dent Randolph wro'
F ee gy niger ood  Reiwiie after that heroic _ Will he live, Doctor?” she Es opinion that the verdict of the'ttroduction to Miss Cyr
wits. He hoped that the pair at] and powerful struggle against #Sked, and the ‘doctor, gravely f. Buncombe County Court must be|{ ident Summerlin. Lp i
; the front door were unarmed,|long odds, could barely mumble dubious, said that ber brave be = = g upheld. : ried in Japan. ys qm enthusiash ;
: and since the leader was plunder-|out his story before he swooned lover might not survive for more pe One justice dissented in part. aa, “fps with emotiq*
7 ing the safe only one gun pointed| away, in a pool of his own blood. {than 48 hours,  » {He was Robert M. Douglas, who|} later they vee hal
4 at himself. Did he dare— McClelland howled loudly for] “Then I'll marry him before} was impressed by . sn lived Fg Rete jy ea
d He might have dared, except neighbors to come. A doctor wast he dies,” she vowed, and on Feb. f . limp roles played aG on ie kyo an . sighs When
q that another occupant of the store summoned, a messenger hurried} jruary 10 a minister came tof ture by Miller an - Nia 4; agers A 7 the tf
} a4 tons Part poh ye Cems. . to Asheville to inform Sheriff ig sional bedside to perform Ff. : Se, cue ince os tee at . te ct oe Poot
e cat, roused irom sleep by] R. H. Lee. His @ ceremony. 7 en j bd 7
x Voices and stampings, was im-| with wads of hans peeaed Star Witness . Bo, the actual robbery. He felt that |h the floor on “futones af
_ ipelled by traditional ‘feline cu- Alexander was hurried by car- But Alexander had the right}. - these two might better be called #s, and took their baths :
= j Tiosity to see what was going on.| riage to the hospital in Asheville, stuff in him, and in large quan-f-° , guilty of second degree burglary. |Iquare-shaped wooden ~
; jit leaped upon a box near the| where surgeons said that he was tities. Having braved four crim-f. jit may have been his separate}}ad two house-servants,
’ dose, aa. npogked = acted!) in a dying condition. : inals, he now fought death witht. opinion to ee org age a on Agr gren a di
parcels. They fell with a crash’ ; ; } Governor Aycoc commute}}mah” for baby San
a the #1 In Scratch Ankle stubborn success. By spring he i: j the sentences of Miller and Gates}Irived. The rate of pay
.

< ;
2: e floor. : ” 2
} “Who's that?” snapped the sec- The sheriff and a posse took the was back at work in McClelland’s the Korea °

; a trail at dawn. in Store, and in i : to life imprisonment. vant was $1 a day for re
_: \%)-Jond masked man, whirling to ;, the oa” cae ee fan Session of sthe ‘ pan gar a } But in February. of 1902, af work. ee
RY mae, neighboring community of Scratch Asheville, he was star witness | year after their deplorably ill-. ¢o:mer North Caro- se
} ‘Into Action e, where the four fugitives against Johnston, Foster, Gates} , advised effort to Tob a store un-H.1 were covering the Omen
an In that instant Alexander went were rounded up. and Miller.- - ug? (der guardianship of Samuel Alex-h peace talks with Sum- ee 3 TS
-_ into action. From the top of the The leader, Dudley Johnston, | This quartet had a lawyer, one { - ,ander, Dudly Johnston and met rnie Kaplan of INS, pa,
Safe ‘he snatched the revolver was a young Floridan, Urged to jof the State’s shrewdest and best! , -egster_were hanged in Asheville.figw of the Herald. Bt
{that had been taken from his talk, he shook his head. Alex- |known. He was Thomas B.’' Set-}- EPS OMG D ad oer ee Don Schanche of Time- 3
jroom. As the second man turned ander’s second shot had broken | tle, once of the State Supreme fF 7 vase Ail former Raleigh cor- ig
| back, Alexander shot him in the his jaw. The other wounded man, | Court. The Presiding judge wasp. 0 20. for INS and Bill Miller 3
body. The big .44 slug knocked an Asheville. Negro named Ben | Fred Moore, who had come to Pa a a ino te d Press was formerly earner |
ithe man down as though he had Foster, lay moaning on the;the bench at 29, perhaps the eS ot ar in Raleigh, Ww e watchingf.
j been Struck with a giant club. ground. He had been shot through | Youngest man ever to hold that fi: ee j ing in Chapel Hill for wed to intq* |
, Drawing back the hammer, Alex- the lung. “I’m dying,” he | Office.. a Met Myth we i Sneak Summerlin is|headquarters in New York he w Panmu.\” . ;
. ; ander aimed at the fellow at the moaned. “Take care of me and |_| Settle cannily declined to put ones de on his Spanish which|report to Havana, Cuba, late t one period|s |,
: fore tne pulled Sriveer o> a ae ou ee pe i - of his clients on the stand. §: . a ee , iS a youngster in Mex-/March and from there will be bSoage se Watt
i e two unhu ‘ He ea | ; ; i Fc
j +” jfutile click upon a defective eart- Miller of Asheville “and “a, Alexander's clear Avg tS" ee AE Seorins assignee ores Se Cy eine
;Tidge. Without rising, the safe- Gates of Tennessee, were lodged to convict 4 eet
b - plunderer drew his own pistol and| in the county jail. Johnston and when backed by Foste :

..

5h ead

age ie ggered, but kept
The the pra cch seizing| VeTS, a dirk, a razor and sever- | Pronounced a
the other’s gun wrist. The watch-

=

aes

red point-blank, his bullet rip-| Foster went to ihe ‘hospi’ ice sage cd, nde BS eet In dustr Is An Aec
ping into the clerk's left side. f j are roueht in a Reed. 2 rr er mv Tne
jAlexander sta When Searched, the pockets of uadruple ver Bee Nk ae Shia ees ‘

Pm mgm
al pocket knives. The money | 4PPpealed to :

from McClelland’s gaf His plea wag that McClelland’s — ‘
‘ers at the front door turned and ands safe, some _ MeClelland’s ; faLS,
‘fied inte the open. ‘There. were $2 828 also Feoovertd tnereg ts 8 Vive hi, and hat crise |
<i s stHiggle. Not map } FOOMS from Where | MeFefere the buFglary Rust be k %

imomenis of mur MS fro ME af copy Ott
1m as , Stpnger ef tha two Jay unconscious, Fos- | OR of seeahd dégree. if August
; ‘for all {he Bushing wolind in Ws ges f the plot to rab, the / UM Justices of the State Supreme
: ‘side, flung Bis enemy flat and °°T€ 204 described the €lerk’s | Curt considered the €vidence
jagain aini€d his gun. This time £*Y#8¢ Stand. It was a repre. aiid! Settle’s brief,
: tit fired successfully, the bullet (alive thrilling deathbed con-|,, This is an important ques- £
{ploughing the flesh of the man’s feSsion, but Foster did not die, | tion,” heavily opined Chief Jus-

i

= Shoulder and lodging in his jaw. Indeed, doctors said he would re. tice David M. Furchas, “and it is
. | But both the robbers were up Cover. He and Johnston were Singular that it has not before
i | now, rushing. Alexander clubbed taken to the jail on stretchers, been pressed or called to the at-
a jat them with his revolver, then While a throng. of citizens, of tention of the court.” However, >":
struck with his free fist. One of vaTying degrees of respectabi]. he and the other justices felt 4.

3 jthe two went down from a punch ity, gathered to talk about that Settle interpreted the law
3 in the jaw, the other fell across lynching. Aronely. After all, the fact that
. him a moment later. They tried (AAT ENE Sine: This ta Tees Alexander had slept by custom

to craw] away, making for the Meds ireke : .in the store made it a residence

int oo.

“Eck
toes, <
Ge Bae Ww * : The,
ied operas Bag ont Ee eee
RI ia bare ET EAP SEN | Naik, °

+ A
Far P -

vat jof a rcrt. Though his

BSA
t

sey


FOY, Edward

# y ha Di ccnaeahata Zico, ARTE LF Lota hon,

; ee the, CAL ng —iylaeitntt tds fe uae nies ae
Lil clan.

Le al Lez te

DL fpapdiylihuw i. gocrtighy
Ano “be 7, 4 XH Wile teed C bpbes Mice Liilstof,

ineieasilniderivis Lbz yp mete fer Arrsat ¢ te lows ht a, ‘estbaeLa dal al

Y ¥ La ish pane Le-kerce 40 lvoe hidieg é LE, ectstlay
SPOR fbf Lhtef but a bare Leveng Lee & fet Gir to Of~

Lelghscige é dated (Ledldud

TRIAL

APPEALS

EXECUTION

Cs Lob J 65 AER de ius — Goue. .
| coud frothens Feld.

SOURCE

FRANK NEWLON OFFICE SUPPLY-Ob THAN


Pid ste La

sl sR ci lk

’ aenstnet —
pereyen yr one. by 2 SUE tae as abl Told
emo

anon ae tibaille

shots dasa oy fa fh Pohee be

Ie 40 SOUTHEASTE

a constructive breaking.—as we do ‘not un- |

derstand that the statute of PSSO makes any

change in the law as to the mode of break+ |

ing. Mills and Gates were charged with
niding and abetting, and were convicted.
We have examined their exceptions with
enre, and do net think they can be sustained.

So far gs we can see, they have had a fair |

trial.
As we see no error, the judgment of the
court below is cflirmed,

DOUGLAS, J. 1 eoncur in’ the opinion,
except in so far as it relutes to the defend-
ants Mills and Gates. It appears from the
evidence that Alexander's bed room was not
in the main store building, but was in one end
of an annex thereto, with a door leading into
the other part of the annex, and a door from
there leading into the main = store room,
‘There was no opening direct from the bed

room into the store room, which could be |

reached only by going through the other part
of the annex. Both these doors were open,
nnd in fact were rarely shut. I think that
the defendants Foster and Johnston are
suilty of burglary in the first degree, in
view of their entering Alexander's bed room
in the manner they did. This seems to me
to amount to a constructive breaking,—cer-
tainly mere so than merely raising a lateh
or breaking a pane of glass for the mere
purpose of reaching something through the
window. On the other hand, even in the
view taken by the majority of the court, if
there had been no communication at all be-
tween the bed room and the store room, or
if the inner door had been fastened, mere-
ly entering the store room would not have
been burglary, but would have been break-
ing and entering a store house, punishable
under section 993 of the Code. The defend-
ants Foster and Johnston were guilty of two
crimes, store breaking and burglary; the
latter being in addition to the former, and
not necessarily dependent upon it. Here
comes the point upon which I differ with the
court. T eannot recall any evidence connect-
ing Mills and Gates with any crime, except
breaking into the store. They do not ap-
pear to have had anything to do with the
murderous assault upon Alexander, or en-
tering his bed room. Suppose that Alexan-
der had been securely locked up in his bed
room, and that Foster and Johnston, with-
out disturbing him in any way, had merely
broken into the store and stolen a piece of
meat; would they have been guilty of bur-
glary? Jf they had not been guilty, those
waiting outside could not have been guilty.

Can we make aiders and abettors of one |

crime constructively guilty of another and
distinet crime, not within the contemplation
of their original act?) We must carefully
distinguish between the essential and the ac-
cidental facts of a case. The defendants
Mills and Gates were guilty as accomplices
in the crime of store breaking, but I have

RN REPORTER (N.C.

very grave doubts whether they can be hela
guilty, in law, of burglary, and such doubts
Lomust resolve in favor of htmnan life.

There are peculiar circumstances in this
case which may tend to swerve our juds-
ment. Weare naturally indignant at the out-
ragcous assault upon Alexander, whose splen-
did courage and manly devotion to duty com-
mind our admiration and respect; but we
should not let our feelings blind our judg
ment. Those who commiétted the assault
will pay the penalty of their lives, but those
who had nothing to do with it, and who
probably neyer contemplated any crime
greater than that of theft, should) be punish-
ed only for the offense of which they are
guilty. If they are accessories before the
fact to the burglary,—-and they were cer:
tainly not present when the bed room was
entered.—then they are punishable under sec-
tion 9SO of the Code, which provides that
“any person who shall be convicted as an
accessory before the fact in either of the
crimes of murder, arson, burglary or rape,
shall be imprisoned for life in the peniten-
tiary.”

|

|

LEA v. DURHAM & N. R. CO. et al.
(Supreme Court of North Carolina, Dee. 25,
| 1901)
| RAILROADS—PERSON ON TRACK—
KILLING — CONTRIBUTORY NEGLIGE?D -
CONCURRENT NEGLIGENCE—INSTRUCTIO? Ss.
1. Deceased was run over and killed by de-
fendant’s freight train about 8 o'clock in the
morning, while defendant was moving twe
freight cars with an engine between them, and
deceased was standing on the end of the cross-
ties of defendant's road. Defendant's track
| was on one side of a public street, which was
| not regularly used as a strect, there being a
| Gear street of D0 feet besides that portion oc-
cupied by defendant's road. No one was on
the front car in the direction the train was
moving at the time deceased was killed. The
train was running faster than a city ordinance
allowed; no bell was rung or whistle sounded:
| and deceased was warned by a friend, but toe
| late to avoid the accident. Held, that it was
| error to refuse defendant's instruction that
|

NEGLI

the conclusion could not be reasonably avoided
that plaintiffs intestate was guilty of contribu-
tory negligence.

3 It was error to refuse the instruction ask-
ed for by defendant to the effect that, taking

all the evidence together, there was nothins

which placed plaintiff's intestate at any dis-
| advantage as regards avoidance of the injury.
| and that. when such is the case, no recovery
| can be had when each party is negligent.

Douglas and Clark, JJ. dissenting.

Appeal from superior court, Person county:
Shaw, Judge.

Action by John S. Lea, administrator.
against the Durham & Northern Railroad
Company and others. The third issue sub-
; mitted to the jury was whether plaintiffs in-
) testate was guilty of contributory negligence
From a judgment in favor of plaintiff. di
fendants appeal. Reversed.

Winston & Fuller, for appellants. Ww.
Kxitchin, for appellee.

N.C.) LEA vy. DURITAM & N. R. CO. 313

FURCHES, C. J. Sidney Lea, the intestate
of the plaintiff, was run over and killed by de-
fendant’s freight train in the city of Durhain,
about 8 o'clock in the morning on or about
the 1st day of November, 1900. The defend-
ant, for the purpose of making up a freight
train, was moving two freight cars, with an
engine between them, nnd the deceased was
standing on the end of the crossties of de-
rendant road. The defendant’s track is on
the north side of one of the streets of Dur-
ham, and is not used as a street, though per-
sons occasionally travel it on foot, there be-
ing a clear street of 50 feet, besides that por-
tion occupied by defendant's road, kept up
by the city as a street, and was in good condi-
tion at that time. There was no one on the
front car in the direction the train was mov-
ing at the time the intestate was killed, and
it was in evidence that the city of Durham
bad an ordinance against running a train
more than eight miles an hour, and there was
evidence tending to show that this train was
running at a greater rate of. speed than the
ordinance allowed at the time the intestate
was killed. There was also evidence tend-
ing to show that no bell was being rung or
Whistle sounded by the defendant. Wiley
Weaver, a boy about 14 years old, testified:
“We walked near the track about ten min-
utes. We were going around to see the town.
Went by a fine house, looked at the yard,
and went by a street near the railroad, and
we stopped. to look at some letters on the
house, and then we stepped out there to look
at the train couple up; and he asked me if
I knew what the letters were, and I told him
‘No, I did not; to come, and let us go to
market. He said to hold on a minute; he
would see the train couple up, and he would
go: and turned around, and said, ‘Come on,
I'm in a hurry; and he said, ‘Go on, I
will catch your and I turned and looked
back, and the train was in about two yards
of him, and I told him to look out; the
train would run over him; and that is all
I think of. * * * About the time I called
to him, the train struck him on side, under
his arm rather, from the back.” ‘There are
ho exceptions noted in the judge's charge,
but at the close of the charge he says, “De-
fendant excepts to the court giving so much
of the charge as is embraced in numbers 1
to 2, 3 to 4, and 5 to 6; and upon ex-
amination we find that no such numbers ap-
pear in the charge. This throws upon us
the burden of examining the entire charge,
or, in other words, makes it a broadside ex-
ception. There has certainly been careless-
ness in making up the case on appeal or in
making out the .transcript of record. But
the point in the case, as we view it, seems to
he sufficiently presented by the defendant's
prayers for instruction and their refusal by
the court. There are quite a number of
brayers for instruction on the part of de
fendant. A number of them are refused “ex-
cept as given in the charge,” and as the case

is made up there is nothing to point us to
that part not given; while a number of them
are refused without any reference to what Is
given In the charge, and we prefer to put our
opinion on those. The main question, and
the one upon which the case depends, as we
think, is the contributory negligence of plain-
tiffs intestate; and this is presented by de-
fendant’s fifth and seventh prayers for in-
struction, both of which the court refused to
vive. The fifth prayer is as follows: “That,
taking the plaintiffs evidence, and also the
defendant’s evidence (which latter does not
furnish any contradiction as bearing upon
the third issue), and the conclusion could not
be reasonably avoided that the plaintiffs in-
testate, by his own negligence, contributed
to cause the injury.’ The seventh prayer is
as follows: “In this case, taking all the
evidence together, there was nothing which
piaced the intestate at any disadvantage as
regards avoidance of this injury, and when
such is the case no recovery can be had when
each party—that is to say, both intestate and
the railroad company—were negligent.” We
think the defendant and the intestate were
both guilty of negligence. This was so found
by the jury under the instruction of the court,
and was not excepted to. The intestate was
killed in broad daylight about 8 o'clock in
the morning. Jt is true he was killed in the
city of Durham, on the defendant’s railroad
track, which is constructed on the north side
of the street, not used as a part of the street,
there being 50 feet of said street in good con-
dition and unobstructed in any way. It is
contended by the plaintiff that this is a fact
in its favor in determining the liability of
the defendant, but it does not appear so to
us. It may be a reason going to show the
defendant's negligence, but this does not help
the plaintiff, as the defendant is found to
have been negligent. And it may be a rea-
son why the intestate should have exercised
more care, as he was in town on the rail-
road track, and saw that the road was en-
gaged in shifting cars and making up a
train. But this has but little to do with
the case as presented to us, as the intestate
was also found to be guilty of negligence.
Nor do we see that the testimony of Wiley
Weaver affects the case. He says when he
looked back the train was in about two yards
of intestate, and struck: him just abcut the
time he called to him to look out or he would
be struck. This being so, the rate of speed
at which the train was moving could have
had no effect. It was too late, when: he
called, to do any good, as the intestate was
stricken just about the time this warning
was given. The intestate was not killed at
a street crossing, nor on a track much used,
even as a footway. The case does not fall
under any of the exceptions that require that
the whistle should be sounded, or the bell
should be rung, or the train stopped. He
was not an infant. as in Bottoms’ Case, 109
N.C. 72, 13 S. FE. 758; nor drunk and down,

mert

NRT ROT SUERTE TE

ig
»
q
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if

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°0Q8 40 SOUTHEASTERN REPORTER.

meantime the tenant can
Under such

court. [In the
starve, or subsist upon charity.
circumstances, if he uses a part of his crop,
under the penalty of going to jail if he fails
to show that he has fully satisfied all liens,
I think he should have the opportunity of
showing payment or its equivalent.

CLARK, J. (dissenting). The statute un-
der which the defendant is indicted (Code

1759) prohibits any lessee or cropper to re-
move any part of the crop “without the con-
sent of the lessor or his assignees, and with-
out giving him or his agent five days’ notice
of such intended removal, and before satisfy-
ing all liens held by the lessor or his as-
signees on said crop.” This statute, pass-
ed in IS76-77, is a most important one to
the agricultural interests of the state. In-
deed, there is not one probably whose preser-
vation in its integrity is more important to
our farmers, whether owning or renting
land. It was passed after careful, delibera-
tion, and the fullest consideration, in 1876-77,
and with a slight modification, in 1883, has
heen retained, amid all mutations of par-
ties, during the quarter of a century since.

The defendant does not allege payment.
That would be a single issue, and would at
onee, if found in his favor, be an acquittal.
Tut he sets up, not payment, but alleged
dumages for breach of contract by way of
counterclaim and set-off. matters
cunnot be a “satisfaction” of lessor’s lien,
unless they had been either agreed to by him,
or adjudged in a civil action to be so ap-
plied. Till then they are merely counter-
claims for unliquidated and unallowed dam-
ages, and cannot be set up as a defense of
“satisfaction” in a eriminal proceeding. To
permit this te be done would be to destroy
the efficacy of the criminal proceeding which

Those

the general assembly deemed essential for |
; |

the protection of the Jandowners of the
state, and which no succeeding general as-
sembly has thought it ought to impair or
repeal, Section 1754 emphasizes this rem-
ody by guarantying the landlord's lien. till
his rents and advances are “paid.” Section
1756 further particukuly points out the les-
see's remedy when there is, as here, a con-
troversy between him and the lessor, It is

by application to a justice of the peace if |

the amount ino contreversy jis under S200,
or to the superior court if over that sum.
It there is an appeal from the judgment, this
section permits the lessee or cropper to re-

tain and use the crop upon giving proper |
hound. Tf the defendant had pursued that |
course, as required ly the statute, this pro- |

coeding would not be pending. But to allow
him te take the law into his own hands, ad-

judge for himself that his counterclaim or |

seteffis good, and thus throw the statement
of the aecount into a eriminal aetion, would
be contrary te the express lumgiuage of the

statute. and would deprive the lessor of the |

very protection the statute was enacted to

|

(N.C.

secure to him, i. e. retention of the posses-
sion of the crop raised on his land, unless the
lessee or cropper (usually irresponsible pecu-
niarily) should give bond to abide the civil
judgimnent upon the controverted matters.

In rejecting the evidence here offered by de-
fendant te show damages for breach of con-
tract to répair buildings and shortage jn land
agreed to be rented for a lump sum there
Was no error, and none in the charge, State
y. Williams, 106 N. C. 646, 10 S. E. 901.
The possession of the landlord was not trans-
ferred to the lessee by sending the cotton
te be ginned.

COOK, J.
ion,

I concur in the dissenting opin-

In re DRURY.
Appeal of BARNHARDT.

(Supreme Court of North Carolina.
1901.)

PUBLIC LANDS—ENTRY—CONTEST—CAVEAT—
TRESPASS.

Code, § 2765, enacted in 1777, on account
of the land offices being closed during the Rev-
olutionary War, and providing a means of de-
termining conflicting claims of persons enter-
ing on public Jands, has no application to an
entry on lands already owned and occupied by
any individual, and the owner of lands which
another attempts to enter as public lands can-
not contest his entry by caveat under such sec-
tion, but may sue the enterer for trespass.

Dec. 23,

Appeal from superior court, Burke county;
Timberlake, Judge.

J. M. Barnhardt and others filed caveats
and protests against the entry of eertain
lands by one Drury. From a judgment dis-
missing the proceedings, Barnhardt appeals.
Aflirmed,

J. ‘Tl. Perkins, S. J. Ervin, and EB. J. Jus-
tice, for appellant. Avery & Ervin, for ap-
pellee.

FURCHES, C. J. The respondent Drury
made three entries of land on the South
Mountain, in Burke county, one of GOO acres,
and two of 640 acres each, ‘The entry taker
advertised these entries as provided for in
section 2765 of the Code, and the appellants
Barnhardt and others filed their caveat and
protest. And the matter was certified to the
sttperior court, notice issued to the enterer,
Drury, according to the provisions of said
section, and Drury filed a reply. The cavea-
tors in their protest say that they are owners

of the Jand the enterer claims that said) en-

tries cover: that said lands were granted to
William Erwin. James Erwin, and James
Greenlee many years age, and they derived
their tithe through mesne conveyances froin
them, and they are now in the actual pos-
session of said lands by their temiunts. ‘The
caveators also allege that said entries are

ore

N.C.) STATE y.
so vague and uncertain, in location and de-
scription, as to render them void and of no
effect. The respondent Drury in his answer
avers that said entries are not void for
vagueness and uncertainty, and alleges that
they are altogether regular and sufficient in
lecation and description. He also denies
that the caveators are the owners of the
lands covered by his entries, or that they
are in possession of the same. Upon the
matter coming on for trial, and the plead-
ings, ineluding the entries, the caveat, no-
tice, and respondent’s answer, being read,
his honor dismissed the proceeding at the
cost of the caveators, and they appealed to
this court.

The matter has given us trouble, as it has
heen diflicult to determine what was the
policy of that part of the statute which pro-
vides for this proceeding, or to discover its
benefits.
see how it could affect the caveators in this
case. As well as we have been able to learn
the history of the statute, this provision of
it was incorporated into the law on account
of the land offices (entry offices) being closed
during the Revolutionary War; and, al-
though it has stood upon our statute books

for more than a hundred years, we are |

able to find but one reported case in which
the proceedings seem to have been under
this statute. McNeil v. Lewis, 4 N. C. 517.
And the information we get from that case
leads us to sustain the action of the court in
dismissing the proceedings. That case holds
that this proceeding applies only where it
is admitted by both sides that the land en-
tered is vacant land, and the question to be
determined is as to whom the grant shall
be issued. We readily yield our assent to
this interpretation of the statute, as it seems
to us to be the only one that can be sup-
ported by reason; for if it be true that said
land had once been granted, and the cayea-
tors are the owners of said-land by a regu-
lar chain of title from the state, and are in
the actual possession of the same, as they
Say they are, no entry or grant the enterer,
Drury, could make or procure could affect
their title, and the enterer would be liable as
a trespasser for entering upon and “tread-
ing down the grass.”

We do not think it necessary to discuss the
regularity or sufficiency of the entries, as
they can in no way affeet the rights and
title of the eaveators, whether they are regu- |
lar and sufficient In form or not.

There are quite a number of cases cited
under section 2765 of the Code, but when
they are examined it is found that they do
not apply to the provision of that section
Which provides for a proceeding by caveat.

We have certainly been unable to |

They are suits in equity, where there has
been a grant issued by the state In fraud of
sole prior enterer, or, at least, where this
's alleged, and the court is asked to declare

Such alleged fraudulent grantee trustee for

the benefit of the first enterers, and have no
{0 S.E.—14

FOSTER. 209

application to the case now under consider-
ation.

lor the reasons stated and the authority
cited, the Judgment of the court is affirmed.

STATE y. FOSTER et al.
(Supreme Court of North Carolina. Dee. 23,
1901.)
BURGLARY—DEGREE—BREAKING—SLEEPING
APARTMENT.

1. Under Laws 1889, ¢. 454, defining burg-
lary in the first degree as where the crime is
committed “in a dwelling house or in a room
used as a sleeping apartment in any building.”
while actually occupied, a burglary committed
by breaking into a stereroom. off of which
opened an occupied sleeping apartment,—the
door between such apartment and the store-
room being open—is a breaking into such
sleeping apartment, and burglary in the first
degree.

2. Where burglars broke into a store, and.
with loaded revolvers pointed at the clerk,
drove him before them into his sleeping room,
opening off of the store,--the door between be-
ing open,—and there stole his revolver and
purse, such entry into the room was a technical
breaking into the sleeping apartment. and the
crime was burglary in the first degree, as de-
clared by Laws 1889, c. 434.

Appeal from superior court,
county; Moore, Judge.

Ben Foster and others were convicted of
burglary, and appeal. Atlirmed.

Buncowbe

Thos. Settle and N. W. Brown, for appel-
lants. Irank Carter and Brown Shepherd,
for the State.

FURCHES, C. J. The defendants are in-
dicted and convicted of burglary in the first
degree. The facts are substantially as fol-
lows: D. J. McClelland is the owner of a
store at a place called “Emma,” a few miles
from the city of Asheville, in the county of
Buncombe. Samuel HL. Alexander is” his
clerk, and had been for more than. three
years boarding in the family of McClelland
and sleeping in the store. There was a room
in said store building fitted up and furnished
with a bed and other furniture, as a sleeping
apartment, in which said Alexander kept
his trunk and other belongings, and slept
there, and had done so regularly for three
years or more. On the night of the Sth of
February, 1901, he closed and fastened all
the windows and outer doors of said store
building, and between S and 9 o'clock he
went into his bed room, but. thinking some
customer might come, and not being ready
to retire, he left a lamp burning in the store
room. There was a partition wall between
his sleeping room and the storeroom, in which
there was a doorway and a shutter; but the
shutter was rarely ever closed. and was not
closed that night. Soon after he went into his
sleeping room he heard a noise at one of the
outer doors of the store building, and, think-
ing it was some one wanting to trade, he
went to the door and asked who was there,
When some one answered that he wauted

2061-9272

‘(aquooung) euTTore) yyION pesuey feqtym ‘KeTpNG ‘NOLSNHOP pue ‘yoeTq ‘ueg “YALSOF

AE

210

to come in,—wanted some coffee and flour.
lle then took down the bar used in secur-
ing the door, unlocked the same, and, when
he had opened the door about 12 inches,—
still having the knob in his hand,—two men
forced the door open, rushed in the house,
covered him with pistols, and told him = to

hold up his hands; that they had come for |
business, With the pistols still drawn upon |
him, they qaarched him into his bed room, |
where they searched him and the things he |
had in the room, taking his pistol and other |

things. They then carried him into the store
room, and made an effort to break into the
post-office department; there being a post
otfice kept there. But, not succeeding read-

ily in getting into this, they abandoned it |
; alone that they were within the curtilage

for the present, saving they supposed there
was nothing in it except postage stamps, and
they would attend to them later. They then

. : : ’ |
turned their attention to an iron safe, and

compelled him to assist in opening it; one of
them still holding his pistol on him. After

the safe was open and one of them going |
through it, taking what money and other |

valuables he found, a cat made a noise in the

back part of the store, and the man with the |
pistol bearing on him turned his attention |

to that; and, as he did so, Alexander seized
his own pistol they had taken from his room,
and which the man who was robbing the safe
had laid on the end of the counter, and shot

; |
the man robbing the safe, and also shot the
other man; but in the meantime the man |

whose attention had been attracted by the
cat shot Alexander. ‘They were all badly

shot, but none of them died. We have made |

this summary from the testimony of Alex-
ander, who was the only witness examined
as to the facts; neither of the prisoners going

upon the witness stand, and there being no |
other witness to the transaction. There |
| ly sleeps there that makes it a dwelling

were two other persons (Ilenry Mills and R.
Ss. Gates) indicted as being present, aiding
and abetting in committing the crime, and

tried at the same time with Ben Foster and |
rank Johnston, who were charged as prin- |
cipals. They were all convicted of burglary |

in the first degree, and, the sentence of
death being pronounced upon them, they all
appealed to this court.

There are several exceptions, but all of
them that seem to require discussion resolve
themselves into one question, and that is the
only question pressed upon the argument in
this court. Indeed, the learned counsel for
the prisoners stated in bis argument that the
ease turned upon this one point. That is
this: That under chapter 434, Laws 1889,
changing the law, and establishing two de-
grees in the crime of burglary, a party cannot
be convicted of burglary in the first degree
for breaking into a store house where there
is a bed room, and one regularly sleeps there,
unless there is a breaking and entering into

the bed room. ‘This is an important question, |

and it is singular that it has not before been
pressed or called to the attention of the

40 SOUTHEASTERN REPORTER, (N.C.

court. The case of State y. Pearson, 119 N.
C. 871, 26 S. I. 117, was called to our at-
tention by the state, but it does not seem
to be authority upon the point discussed in
this case. Therefore no case was cited and
we are unable to find any, that decides, or
even discusses, the point made in this case,
and it devolves upon us to construe this
statute.

DBurelary at common law was the breakiig
and entering a dwelling house in the night-
time with a felonious intent. And this was
the law of burglary in this state until the
passage of the act of T8890. In this definition
were included houses used as a part of the
dwelling, such as smokehouses and pantries
within the curtilage. It was not the fact

that made it burglary to break into and en-

| ter them, but it was the fact that they were

used as a part of the dwelling, as well as
being within the curtilage. A store hotse
or a workshop, though within the curtilage,
was not such a house as would make one
guilty of burglary to break and enter at
night with a felonious intent. State v. Jen-
kins, 50 N. C. 450; State v. Langford, 12 N.
C. 258. Indeed, to break and enter a store
house, in which no one slept, with intent to
steal, was not a criminal offense at conmon
law, nor in this state until made so by stat-
ute. State v. Dozier, 73 N. C. 117. But it
was held in England and in this state that
a store house, or any other house in which
one regularly slept, was a dwelling house.
and one upon which burglary might be com-
mitted. State v. Williams, 90 N. C. 724, 47
Am. Rep. 541; State v. Outlaw, 72 N. C. 598,
It is thus seen that it is not the fact that
it is a store house that makes it a house in
which burglary may be committed, but it is
the fact that some one regularly or habitual-

house. And the law was the same as to any
other house in which one regularly or habit
ually slept. This discussion of the law of
burglary in England and in this state prier
to the act of 1889 was necessary to enahle
us to put a construction upon that act. It
is an act to “change the law in relation to the
erime of burglary.” It divides the crime into
two degrees.—first and second. The first is
punished with death, and the second degree
with imprisonment in the penitentiary for
life, or a less term, at the discretion of the
eourt. The first degree is where the crime is
committed “in a dwelling house, or in a room
used as a sleeping apartment in any buil.l-
ing, and any person js in the actual oecapa-
tion of any part of said dwelling house or
sleeping apartment at the time of the com-
mission of said crime, it shall be burglary in
the first degree, Second. If the said crime
be committed in a dwelling house or sleeping
apartment not actually occupied by any one
at the time of the commission of the crime.
ov if it be committed in any bouse within
the curtilage of a dwelling huuse, or in any

bullding not a dwelling house, but in which

there {s a room used as a sleeping apartment |

and not actually oecupied as such at the
time of the commission of said crime, it shall
be burglary in the second degree.” The ob-
ject of the statute must be taken Inte con-
sideration, aud both sections must be con-
strued together, in construing the act of 1889,
It Is manifest that the object of the legisla-
ture was to modify the law of burglary as it
then existed, aud reduce the severity of its

execution. At common law it was not nec- |

essary that any one should be in the dwel-
ling house at the time the crime was com-

mitted. 4 Chit. Bl p. %225. And this was |

the law in this state, and the penalty was
death, until the passage of the act of 1889.
Under that act, which is the law now, to
constitute burglary in the first degree and
make it a capital offense, it is necessary that
some one should be in a dwelling house when
the crime is committed; and, if there is not,
the crime {s burglary in the second degree,
which fs not punished with death. Also, at
common law, and in this state until] the act
of 1889, buildings within the curtilage, and
used in connection with the dwelling house,
were held to be a part of the dwelling house;
and the crime committed in one of them was
burglary, and the punishment death. But
under the act of 1889, to break, enter, etc.,
such a house, is burglary in the second de-
gree, and the punishment imprisonment.
Under the common law and the law of this
state until the act of 1889, to commit the
ertme in a store house or other house where
there was a sleeping apartment, regularly
or usually occupied as such, it was burglary,
and the punishment was death. This was
not so because it was a store house or other
house, but because it was held to be a dwel-
ling house, and the punishment was death.
But, under the act of 1889, to make the of-
fense burglary in the first degree, and pun!sh-
able with death, a breaking and entry Into a
store house or other house where one reg-
ularly or usually sleeps does not constitute
burglary in the first degree, unless tue bur-
glar breaks and enters the sleeping apart-
ment. A store house stands precisely upon
the same ground as any other house where
there is a sleeping apartment In which the
crime of burglary might have been commit-
ted before the act of 1S89, and must be
given the same meaning. We are forced to
this construction in order to give any mean-
ing to that part of the statute which says,
to constitute the crime of burglary In the
first degree, It must be “In a room used as a
sleepiu;, upartment in any building, and any
person is in the actual occupation of said
dwelling house or sleeping apartment at the

time of the commission of said crime, {t shall |
be burglary in tbe first degree.” Were we |

hot to give the act of 1889 this construction,
It would leave the law of burglary the same

@s to store houses and other houses having |

a sleeping apartment where one regularly or

N.C.) STATE v. FOSTER 211

usually slept, just as it was before the act
of 1889. This we are not justified In doing
And the second subdivision of section 1 pro-
vides, “If the said erfme be commitied in
e * * a sleeping apartment not actually
oceupled by any one at the tine of the com-
mission of the crime, * * ® {t shall be

| burglary in the second degree.” It is there
| fore seen thet the statute niakes It necessary

that the sleeping apartment sbould be ac-
tually occupled by some one at the time the
offense {s committed. or the crime is bur-
glary in the second degree, and thereby clear-
ly showing tbat such buildings as_ store
houses and other houses in which there is a
sleeping apartment are no longer regarded
as dwelling houses, as there is a clear dis-
tinction made between them and dwelling
houses. In dwelling houses the brenking
and entry is burglary ip the first degree. {f
any one {fs in any part of the house at the
time. In other houses where there is a
sleeping apartment, the sleeping apartment
must be broken in and entered, and must be
actually oceupled.

The question then comes to the facts of
this case to determine whether the prisoners
are guilty of burglary in the first degree.
There was a regular sleeping apartment,
which had been occupied by the clerk, Alex-
ander, for three years, and he was actually
present in his sleeping spartment when the
burglarious assault was made. The cuter
doors and windows were securely fastened,
and the door to his room—his sleeping apart-
ment—was open. The prisoners by trick
and fraud procured him to unfasten the door,
when they forced thetr way tnto the house
against his heroie efforts to prevent them.
Upon their gaining an entrance in this way,
they covered him with pistols, made him
throw up his hands, and marched him into
his sleeping apartment; and there, in his
presence, they went through his desk and
other things, taking his pistol, purse, and
other property. They then marched him in-
to the store room at the muzzle of their pls-
tols, where the tragedy related above waa
enacted. Everything necessary to constitute
the crime of burglary in the first degree, un-
der the statute of 1889, Is present and pro
nounced in this case, if there was a break-
ing Into the sleeping apartment. And this
{is where, as we understand, the prisoners
rest their defense. This cannot avail them.
If the door to the sleeping apartment had
been closed and fastened, and they had not
broken and entered into it, {t may be thefr
defense would have availed them. But. as
this door was not closed (and the evidence
{s that it rarely ever was), tbe outer doors
and windows were his relfance and protec-
tion. They were the doors to his sleeping
apartment, and gave him the protection of
the law. We also hold that Alexander's be
ing carried {nto his sleeping apartment by
force, and under the Influence of a loaded
pistol bearing upon him, was # breaking,

mrad

&
4


pets, 2

| ts ‘lin pena then
placed the black|ca over Fr eman’s’
‘head and adjusted t lat.and 't e fatal'|
noose, and while| t 4 W a8 ing on
Revs. Conwa ana | Foaxlet, two col-,
-ored miniaters ste ding né ar y; gang’. '
a: hymn; which| Freeman | |
quested several ‘days Jago) sh |
done, saying. that it ‘wo ld; §
ensier” for him.: | fe Te
- Precisely ‘at twenty-on |
twelve o'clock, everything
readiness, the signal was | ?
Deputy Sheriff|.Elder’|puiled ‘the
lever. The trap- door ee clang {

and jar that shook the ilding, and
‘Freeman’s body hot.do wards and
brought ‘up . with’ j a suddel ‘jerk
and. thud, and. the crowd hra k back’
scomingly in| horror : fro - the:

throughout the puildicie np a mq:
ment, and tinen. rom one | ott

in the: upper. cor id ir oft ie J il there |

came ad wild wailing cry. tha uf !
‘the, silence with jbut. add: ad 1¢

and. fro. . “mMnbrb é
ic [mation | of}
shoulders ‘rais a: i ie.
those of 2» "person! '|breat si
ily.| ‘Th.e knot nia the Ph ch

been adjusted unde thi
slipped. around t Ne kK | OL: o]
neck, and ‘it wise it )
failed to do its | oil rop

Potter and Lane, ‘anc is
geon Brooks, w pers.
amined the body, Ojpee if nie
tinct... At five| m utes’ t¢
o'gloek Freeman was) (prono
dead, and two ake 1a ter, h

Was s lowered an int lo

neck was nots br woul 0%

-A deputy, a orift : ai ce |

on lie coffin and af rema is
jaf

" then-taken | Into) , the aI det ,

¥


1 oe EOE ERT LEST ISO TaN ee

3 SASTE SPORTER, 2d SERIES
156. ONG. 34 SOUTH EASTERN REPORTER, 2d SI

Washington; that he sent her checks for in the divorce cas oes Bagy 7
her support each month and wrote regular- Parker v. Par si : AAR aS
ly; that in April 1944 plaintiff made a brief S.E. 346; Woo ay? a mente
visit to Atlanta and defendant saw him at N.C. 685, i S Gi = eer er ey
her home and at his hotel; that in May Williams, 224 a, : ar . Salva
1944 defendant again went to digs Pa “ fo cp eae oy A cans aa
i 5 rer and they stayed at hensio t 1
es Ne for about four days, bearing on the ee Mg fst oi
and then for several days she stayed with Dudley vy. Dudley, 225 N.C. ov, "
a friend in Washington (Mrs. Grainger) 2d 489.

where her husband came frequently to see [2] “As the siteeatians 10.8 petition for
; j a , :
her; that her friend testified shat pes divorce are directed by statute to be sworn
bathe pupdatcs Oe Yer Sa Ce, to, it is more emphatically required in
and their actions toward one —_ he ie ee Dean teat a ehars Ynav'the siteeas
actions that this dpone i nce tions and proofs should correspond ; other-
: ; :
bry cab lttly pees he he wise the Court cannot decree a divorce.
and very fond of each other’; that the $ ¢ ‘ vi 36 NLC. 90
net y . < ware paid LHeadnote. in Foy v. Foy, 9 iG .
expenses of this and other trips were Pé :
by plaintiff; that plaintiff told defendant [3.5] In Byers v. Byers: 228 Nev 298;
he was going to be sent away on duty, an 1 oS E.2d 902, the tifect of the Act 0
wanted her to remain with her parents 1937 now G.S. § 50-6, upon actions for
that during this visit she told him as ene divorce for two years separation was under
had nothing to do she. wished » coe consideration, and it was there held, in
the service, but her husband objected and an opinion by Justice Seawell, that as to
told her if she would not do so he would cetions brought under this Act proof of
have her allotment increased, and at of plaintift’s residence in. the state and that
insistence she agreed and eae vt e. the husband and wife have lived separate
lanta; that she received checks and letters | 4 apart for two ycars would entitle the
from him each month, the last — plaintiff to a divorce—except whcre ree
from Miami July 29, 1944, being Te de separation was caused by the ee
August Ist; ee he gave pdeates at aes of the piaipsit 2 we ee are
that he intended to or was entc st y. Byers, 223 N.C. 85, 25 S.E.2 466. S
for divorce; that not hearing from him nico Moody ¥: Moody, 225 N.C. 89, 33 S.E.
after August Ist, she made inquiries and a4 491 opinion by Justice Schenck. This
‘ by 2 aR
then “for: the” Urat-atime learned of = statement of the law as ig ee ss »
i i + r ay-
divorce action. * GS. § 50-6 was upheld in Taylor v. y
The plaintiff, in his answer to the de- lor, 225 N.C. 80, 33 S.E.2d 492, 494. But
fendant’s motion, contents wat stig _ in the opinion in shel apg by Sapedepe es
ic ate é not live ctoey it was said: course, the plain-
categorical statement that he did no > Stacy it was said: pla
with her as husband and wife a give tiff may particularize as to a wee
15, 1942, but does not pe the we of the separation by alleging ait ; wae y
ste of association set out with partic- jyitual consent, aban onment, — ete.,
ulakaty in defendant's affidavits, and admits which event, if material to the cause of ac-
he sent her checks each month and I tion the burden would rest with the Pe
her up to July 29, 194-4. lhe ~_ at tiff to prove the ee ee ak Ne Se
‘ i sparation by mutue = a Williams v. illiams, 22 CO,
ence made by him to separa at citing Nie iat VAC. 91
agreement 1s that on the occasion - Lp 29 S.E.2d 39, 40. In Williams ay Williams,
visit to her in Atlanta in April 19: a supra, where the plaintiff relied upon $s
says “she agreed to the ra no os ration by mutual ee oe eae ok
separati isted since JUNE ie A yinion by Justice Barnhill:
separation had existe 4. an :
Upon this point the court held “that the establish his cause of action, based on sepa
i tc concerning the mutuality of the ration by mutual consent, plaintiff must not
canes is conflicting, but the evidence only show that he and the defendant have
Semaine that the plaintiff supported jived apart for the statutory period, *
is undis ‘ ) Pe ey
defendant until he was granted a divorce also that the separation was Seer
from her and the mutuality of the scpara- its inception. There can be no volun ;
soil immaterial.” separation without the conscious act
mee vas in- both of: the parties.” And in Byers *:
It i sparent that the court was S02 0
sae akh taint Byers, 222 N.C. 298-22 S.E.2d 902,
advertent to the language of the complal yers,

STATE vy. FRENCH Ko ae
Cite as 34 8.E.2d 157

it was said: “There must be at least an in- this Court in Dudley v. Dudley and Taylor

tention on the part of one of the parties to v. Taylor were available.

cease cohabitation, and this must be shown The cause is remanded for further pro-

to have existed at the time alleged as the ceedings in accord with this opinion.
beginning of the separation period.” Byers

v. Byers, 222 N.C. 298, 22 S.E.2d 902.
In Oliver v. Oliver, 219 N.C. 299, 13
S.E.2d 549, 553, it was said by Justice
Winborne writing the opinion for the
Court, “the case was tried upon the theory

advanced by plaintiff that their separation
was by mutual consent.”

Error and remanded.

[6,7] Separation, as this word is used sie Ni“
_ [6,7] Separation, as this STATE v. FRENCH.

in the divorce statutes, implies living apart No. 363

for the entire period in such manner that Bass

those who come in contact with them may Supreme Court of North Carolina,

sce that the husband and wife are not June 6, 1945.

living together. , For the purpose of obtain-
ing a divorce under G.S. § 50-5(4) or G.S. 1. Homicide €=282
§ 50-6 separation may not be predicated Conflicting evidence was sufficient to
upon evidence which shows that during the take case to jury on charge of murder in
period the parties have held themselves out the first degree.
as husband and wife living together, nor 9» pyomicide C2269
when the association between them has vide that deceased was. bodil
been of such character as to induce others ,. 0. i me ohne a as
who observe them to regard them.as living uve init iately neers and was aire
together in the ordinary acceptation of that Meee . ne ee nA Stes: oe —
ee ae fe w9s the. holditg sae fired seatien ees pear ihe: at
in Dudley v. dle 20. IN Gay Soy Cds Oa ee “ : nae
2d 489, ia an pare ex tee Gt MESEN 10: 200) 50 SL ee as Ase
hy-Jastite Denny. “Separsti veg. and its infliction by accused, notwithstand-
2 enny. Separation means cessa- +7, mortician’s testimony that deceased’
tion. of cohabitation, and cohabitation 8 : i 9 GS aS
means living together as man and wife, veinous system had been broken down.
though not necessarily implying. sexual 3. Criminal law €=822(1)
relations, Cohabitation includes _ other The charge to jury must be considered
marital responsibilities and duties. Dudley contextually.
v. Dudley, supra; Williams v. Williams, 4. Homicide ¢>300(12)
supra; Woodruff v. a. :

simahaurk tere deat Instruction to convict accused of mur-
der in the first degree if accused with
: malice and premeditation and deliberation
the exigencies of the husband’s service in unlawfully killed deceased was not errone-
the Navy permitted, the continued exercise ous as depriving accused of the benefit of
Ey him of marital authority and responsi- his plea of self-defense.

“lity, together with total lack of evidence
of estrangement or cause for estrangement b Pemen ie se tages
between these young people, viewed in Instruction te Sanyo of first-degree
connection with the plaintiff's concealment murder. if accused with malice and with
ffom cher of. his “action stot divorce’ for premeditation and deliberation unlawfully
the cause alleged and verified in his com- killed deceased WaReTIOL REEOUCDS 45 not
plaint, would seem to afford ground for having again and immediately defined de-
her contention that the plaintiff, for some liberation, where such element was ade-
reason undisclosed, has dealt unfairly with quately and accurately defined in a preced-
his wife, and that under the forms of law ™& instruction,

he has practiced imposition upon the court, 6. Homiclde C=22(2)
to her injury.

{8] In the case at bar we think the
frequent association of the parties, such as

: “Deliberation” as bearing on the de-
- 16 justice to the able judge who heard gree of homicide means to think about, to
this case below it may be said that his revolve on one’s mind, and, if one thinks
ruling was made before the opinions of about performance of an act and determines

7 —
our eee

, oa

ar

CRHVERSHY

*cnéTt ‘2c eunpe (Azowezquoy) qSON *xAydse S£aueq “HON


ees.

a

eT AE

POE POL EE ITE SENS TE PE ee

x
LOE EOE IT DIE

bay 4

~ eet ots

in his mind to-do such act, he has deliber-
ated upon the act.
Sec Words and Phrases, Permanent
Edition, for all other definitions — of

“Deliberation”.

7. Homicide <222(2)

“Premeditation” as bearing on the de-
gree of homicide means to think over a
matter be forchand.

See Words and Phrases, Permanent

Edition, for all other definitions — of

“Premeditation”.

8. Homicide ©22(2)

Where one forms a purpose to kill an-
other and weighs such purpose in his mind
long cnough to form a fixed design to kill
at some subsequent time, the killing of such
person pursuant to such fixed design would
be a killing with “premeditation” and “de-
liberation” and would be “murder in. the
first degree”.

See Words and Phrases, Permanent

Kdition, for all other definitions — of
“Murder in the First Degree’.

STACY, C. J. and WINBORNE, J

dissenting.
PS eA aed 7

Appeal from Superior Court, Montgom-
ery County; William I. Bobbitt, Judge.

Ifenry Vrench was convicted of murder
in the first degree and sentenced to death,
and he appeals.

No error. ‘

The defendant was tried at the October
Term, 1944, of the Montgomery Superior
Court, upon an indictment charging him
with murder of Duck LeGrand,

The evidence of the State tended substan-
tially to show that James Richardson, driv-
ing Shang LeGrand’s car, in which were
Shang and_ his wife, Duck LeGrand, the
deceased, and other persons, was gomg out
of an alleyway towards the highway.
French was driving his car along behtnd
them. As Richardson came out of the al-
Ieyway and turned along the highway,
French came out, also, and in trymg to go
around the car, hit a telephone pole. There
was no collision between the cars. When
the French car struck the telephone post,
the LeGrand car stopped, then pulled off
and went on to Wadeville. French backed
away from the post and carried his car to-
wards home. About 25 minutes later, a
State's witnéss met defendant going up the
road, and defendant asked him “where

5S N.C, 34 SOUTH EASTERN REPORTER, 2d SERIES

that damn Shang LeGrand was.” Wit-
ness said that he did not know, and French
replied that somebody was going to pay
for his G—— damn car. About that time
Shang LeGrand’s car passed, and defendant
went on to where Shang’s car was parked
on the right-hand side of the road. Later
witness found French at the LeGrand car
arguing about his own car and talking to
James Richardson, Duck LeGrand and her
husband were there also. French told
Richardson that he wanted pay for the
“dann damages.” Richardson told him to
Wait until tomorrow and he would talk
about it. Duck and Shang and the rest of
them walked down the road to “Craven’s
house.” Another person went up and got
LeGrand’s car and drove it, French stand-
ine on the side of it. The car was driven
about 40 yards from where they had been
talking. French kept arguing about dam-
age to the car, and James kept telling him
he would sce him tomorrow. French re-
plied “G-—— damn it, wait till IT come back,
[will kill all you s. 0. b's.” Duck LeGrand,
Shang LeGrand, James Richardson and
Margaret Ingram were present. Witness
had not scen any previous fight, nor had he
seen any weapons of any kind in the hands
of LeGrand and his wife, or any of that
party.

The defendant then ran down through a
corn field about six or seven hundred yards
to his house; and some ten minutes later
came running back with a rifle and ran
around the side of the car where the driver
was. Ile came by the side of the car where
Shang LeGrand was, stuck the barrel of the
rifle in the car and shot four or five times
into the car. Duck LeGrand and. Shang
LeGrand were sitting on the front seat of
the car as the defendant approached on the
driver's side. Witness did not hear either
of the LeGrands or French say anything.
French fired five or six times and Duck
started to get out of the car. She got out
on the running board, and defendant fired
again, and she fell. He was standing near
the front of the car when he shot Duck
LeGrand, Her face-was turned away from
defendant, her back to him, and when she
fell, defendant turned around and ran,

FE. T. Reynolds, a mortician of fifteen
years’ experience, and licensed by the
State, testified that on the night of Sep-
tember 2nd he saw the bodies of Duck
TeGrand and Shang LeGrand, both in
front of the bank building. Duck LeGrand
was in the back of the car, down in the

STATE v,

FRENCH NG .439

Cite as 348.E.2d 157

foot. Witnes$ ‘prepared her body for
burial, finding a bullet wound in her back,
about an inch to the left of her spinal
column and down below the shoulder blade.
The veinous system was punctured some-
where in the thorax or the chest. The bul-
let wound in the back was about the size
of a .22-caliber rifle bullet.

Another witness for the State testified
that he pulled the Shang LeGrand car out
from the “piccolo” (restaurant) out in
front of Craven’s, and drove it a distance.
French was standing on the running board
on the driver’s side. ‘There was no one in
the car at that time. After the car was
pulled in front of Craven and Beatrice
Turner’s house, the defendant began to
curse Duck LeGrand and Margaret, her
daughter, in the presence of Shang, Arthur
Hill and Wenry Ingram, Duck LeGrand’s
boy, a lad about 15 or 16 years old. De-
fendant called Duck a s. 0. b., and after he
called her that, he left and said he was
going home and get his gun and come back
and kill all the s. o. b.’s. He broke and
ran through a corn field. Witness was not
present when he came back.

Arthur Hill testified that he was with
Shang LeGrand and Duck, the deceased
woman, and James Richardson. Duck and
Shang drove in front of Miss Flora’s, on
the right-hand side, and stopped, and the
party was there a few minutes when de-
fendant walked up and began talking to
Richardson about the damage. Richardson
asked him to wait until tomorrow and de-
fendant said, “I am going to have some
damn damage tonight.” He was talking to
Richardson, Duck and Shang LeGrand.
French was cursing Duck LeGrand and
Shang LeGrand, and then John D. McCall
came, got the car and drove it on down in
front of Craven’s, with French hanging on
the side of the car. Duck and Shang went
on down behind the car after it had been
driven on. Then the argument. started
again, with defendant cursing them and
repeating that he intended to have some
damn damage. He then ran up the road,
telling Shang and his wife to be there
when he got back, he was going to kill
every s. o. b. that was there. He came
back in about 20 minutes, had his rifle up
when witness broke and ran. Defendant
ran around on the driver’s side and poked
the rifle into the car, and witness heard
tour or five shots. Duck and Shang were
Were in the car at the time. Later, he saw
Duck lying on the back seat, dead.

IJenry Ingram testified that Duck Le-
Grand was his mother and Shang LeGrand
was his stepfather. Witness was standing
in his grandmother’s yard when defendant
came up to the automobile. Witness was
about 25 or 30 yards from the automobile
in which his mother and stepfather were
sitting. The defendant was standing there
shooting into the LeGrand car in which
were his mother and stepfather when
the witness first saw him. He saw him fire
four or five shots into the car.

Witness started towards the car, and de-
fendant turned around and shot him in the
leg. The defendant was standing beside the
car when he fired on the witness, and wit-
ness heard him fire again after he went
back into his grandmother’s house.

Witness returned to the car, found his
mother lying on her face in the back of
the car, picked her up, put her in an auto-
mobile and carried her to Dr. Harris’ of-
fice. She was dead when witness picked
her up. Witness did not have any weapon,
nor did he find any weapon about the body
of his mother when he picked her up.

Ivey Hall, Chief of Police of Troy, testi-
fied that he brought the defendant to the
sheriff’s office or jail. He asked French
why he shot those people, and the reply
was that they had been “picking at him and
he got tired of it, and said he would show
them who to mess with.”

At the close of the State’s evidence, the
defendant moved to dismiss as of nonsuit
and for a directed verdict of not guilty as
to the count or allegation of murder in the
first degree. The motions were overruled,
and the defendant excepted.

The defendant testified that he was 34
or 35 years old and lived in Troy; that
he had known Duck LeGrand and Shang
LeGrand all his days.

Defendant testified that they were at
“Miss Flora Kelly’s ‘piccolo,’” a short
distance at the rear of the courthouse. He
saw Duck and Shang LeGrand come out
from the “piccolo” in a car; that they start-
ed up ahead of witness “and made a bad
drive. in front of me,” in consequence of
which defendant bore to the left and hit
a “telegram” post and cut it down, De-
fendant testified that he carried his car
to the house and returned to the “piccolo,”
saw Shang LeGrand when he left the high-
way and turned to go into the “piccolo
walk.” , They were up where the post had
been cut down and were talking about it,
and Duck LeGrand and her two daughters

weg sme

oot

FRENCH, Ross, Indian, electrocuted North Carolina (Swain Co.) on Nov, 2h, 1911.
(Acheville-

"Oct. 9, 191l-Ross Frenchy 21, a Cherokee Indian, living on the Bird Town, Swain County, ©
reservation, was safely lodged in the county jail here last night, charged with the
murder of Ethel Schuler, the l-year-old daughter of a Bird Town farmer, His arrival |
here was effected after an exciting escape from a mob of 100 men bent on lynching the
prisoner, The body of the girl was found Friday in the woods near the town with her
throat cut and no trace of the assailant was found until Sunday morning when Deputy
Sheriff Beck of Swain County arrested French at a point seven miles from Sylva, Beck
made the arrest on the strength of blood-stained finger prints on the Indian's hat.

The news of French's capture spread quickiy to the neighboring towns and a mob of 100

men followed the deputy sheriff to Waynesville where French was lodged in jail. As the
mob continued to grow, the sheriff called out the militia and the crowd was dispersed.
Beck then took the prisoner through the back door of the jail to a waiting automobile

at Clyde, 20 miles from this city, and then rushed to Asheville," JOURNAL, Atlanta,
Georgia, October 9th, 1911 (three/one.)

"Greensboro, Ne Ce, Oct, 28, 1911-Perhaps the quickest time in which a capital case was
ever disposed of in North Carolina was at Bryson City, yesterday, when Ross French,

a Cherskee Indian charged with the brutal murder of little Miss Ethel Shuler, a Lheyear=
old lassie of the mountains, was tried, convicted and sentenced to electrocution in less
than one half day's session, “ov, °), was set as the date of electrocution," JOURNAL,
Atlanta, Ga., Oct, 28, 1911 = 21.

"Ashville, Oct. 8, 19ll-...Later the Indian made a partial confession, but would not
give full details of the crime, He is alleged to have stated that the girl made a
desperate fight, and had hit him in the head with a rock," TENNESSEAN, Nasvyille, IN

Oct. 9, 1911 (5/5.)

Convicted Murdeter?s Appeal'ls. Reje ett

Decision 1 May Set Stage For Execution Of miner ¢ Adams?’ Killer Gets ce

Three months to the day fol-
lowing arguments, a federal three-
judge panel of the 4th Circuit
Court of Appeals has rejected an
effort to set aside the death sen-
tences of John Sterling Gardner.

Gardner was eiavieies of the’ a oe Mrs, A. K. " ibies. Kim
shotgun murders of two Steak and. iller, 23, <= the second victim
Ale “employees at about 12:30 gt the restaur

a.m. on December 23, 1982..One’, "| The appeal . court affirmed the
of those employees was Richard ‘ décision of: the U.S. Middle
A. Adams, 21, of Grifton, son of Djstrict Court made September

| 71992."

‘the U. S.-

H, 1992, dismissing aN that
errors at Gardner’ s trial in
September 1983 deprived him of
his constitutidnal tights.: ‘The case
was rgued before the court on
February 4, 1992 and the decision
was handed down on — 4,
page

The rejected Siel may be

.Gardner’s last, although his\attor-

/ neys will undoubtedly made other
y appeal attempts. Thesstate is.
expected to schedule a Hewing to >
set a new Jon ay date for

Gardner.. Joan Byer$, Special
Deputy Atforney General, said
Gardner ‘will probably file for a
rehearing,"}
preme Court, or file
something “in state. court.
“Hopefully we are’ now at the
point where the issue of his being
executed is less if than when,” she

said. “It’s been 10 years too lorie. “ eathy

Relative’ to a hearing to Set £new f uiiconstitutionally imposed” ‘and. -
execution date, Ms. Byers said th
state will “. study. the situ wae

aaa —

ake a Cert petition to.

_proces¢ of law
- denied gourt-ap

arid do what is appropriate.”
The U.S. oneal Court has

previously declined twice ta hear
the case. i

. In challenging the death sen-
‘tences, Gardner ‘alleged that: (1)

he was denied effective assistance

“of counsel at the sentencing phase
of the trial because of counsel’s”

failure to adequately investigate:
and present a case of mitigation;’

(2) he was denied due process’ of
law the state’s failurejto produce

discovery and by pcosecutorial

instructions were uriconstitutional,
because. they. : required unanimity:

‘in considering: mitigating’ evi-

derice? and, (4) he was denied due-

ted

“misconduct; (3) the sentencing © ~;

when:-he was. 2 >

inted psychiatric: as

assistance. sae eel

: The:

hearet

sentences Were: “=:not.

: Please Turn To tage 1) me

~

peals court held thar ‘the:

- a3
Snr ws ;
oe eae ~
é at

.

ghey t7

’

oie
a"
i

a VAISS)

icited that his court-appointed - at

se
eS
—
as

ir.
(Murderer

gipland gis Rohe a eh cae
(Continued From Page 1) _
raser, did

Aevsabe ‘

ane

L<

attorney, .Bruce. C..F

meet. constitutional .norms in the *

‘presentation of mitigating evi+
“dence, “It is, difficult to fault the
‘attorney for pursuing what. his
client refuses ‘to, reveal- or indi-
- cates is not worthy of considera-
- tion,” the court-wrote. “‘Under the
circumstances facing Fraser in this
~ case, we conclude that his investi-
gation.and ‘utilization of mitigat-

ing evidence satisfics constitution-—

_; alnorms.” : i
The court also. found that there

was “no prejudice .... apparent in
the record” relating to disclosure

information by the prosecutor nor

...was there improper action by the

prosecutor. in, questioning Gardner

about his prior, Miranda warnings,
: or Gardner's connection to anoth-:
er murder in another county. The,
. the prosecutor,

~% did make “improper remarks” dur-"
s during the:
but noted,’
the remarks do. no rise to the: saw Gardner run
tutional violation: and Ale to the pa
ne-. wailing automobil

.. *court.did find that

“ing closing argument
» sentencing -phase,

level of a:consti

that would-warrant a new sente

ing hearing," ss";

‘ “The court also

found t

Gardner's claim that the jury was |
nimously find mjti-.:
tances before they | the flee
‘could be weighed against aggra-.,
-yating factors:in deciding on the:
‘death sentence: must also fail. “In

_ required ta una

‘galing circums

this case, neither the jury’ instruc *
erdict form contains .
“any such pnanimity restriction. on}

the jury’s use of mitigating evi--:

tions nor the v

dence,” the court’s opinion said.

., Gardner’ also claimed he was:

Loses Appeal ——
ere ay ia ct ey oe “

POT el

denied due process because he .
was denied a court-appointed psy-
chiatric expert. Even though the
rule requiring a psychiatric expert |
at: both the guilt and sentencing
phases of capital trials docs not
‘apply in the Gardner case, the
court indicated that even if it did.
apply, “«.there was no showing by
_. defendant to the trial court that his
sanity was at issue or that the state
intended to put ‘on psychiatric evi-
dence at trial regarding Gardner’s
danger to society ws 2 ‘sa
Both. Adams and: Miller were
killed during a robbery at the
Steak and Ale restaurant in
Winston’ Salem. According to
‘court records, the two employccs
readily’ gave ‘the -money to
Gardner-and both were shot with
shotgun: blasts to the face ‘and
neck ie tbe ere)
‘Gardner was
Linda Cain, a cashier at‘a neigh-
‘boring restaurant as she was walk-
ing to her car at the time of the
robbery. Ms. Cain heard the shots,
from the Steak
ssenger side of a
e. “She had
ith the indi-:,

\ '

f direct eye contact W

hat’ vidual for several seconds and

later. identified Gardner from
. police. photographic Jinc-wps. as
records stale. ,.
“ Nearly three months after the
murders, Jeff Royal implicated ,
Gardner jn the-murders. Royal |
was:aniinmate :at the Forsyth
County. jail at the time..
initially admitted to being in the
* car, but while at the crime scene
later with investigators, confessed

later observed by

ing individual,” court —

Gardner .

to committing the murders: On.”
March'24, 1983, Gardner “...fur-
ther described the victims, where |
he shot them, and their positions
after they were shot,” court
records indicate. Gardner’s con-
fessions were tape- recorded.
~ Gardner was convicted on two
counts ‘of first degres murder on
September 23, 1983.’ The judge-
‘ments were alfirmed on appeal by
the North Carolina Supreme Court
on August 28, 1984 and the U.S.
Supreme Court denied to near the
case on'February 19, 1985. in
December, 1985, Gardner filed a
motion: to start state habeas pro-
ceedings. ‘After an evidentiary
hearing, the state court rejected
his claim, and the state court’s
opinion. was upheld by the N.C,
Supreme’ Court on August 29,
1986 and the U.S. Supreme’ Court
refused to hear the case in 1988.
Gardner filed a petition in fed-
eral court’on March 7,'1988. A
magistrate judge hearing the case
recommended that Gardner's
Claims be denied, and that report
was accepted by the district court
on September 11,1991.
:.Gardner appealed’ the
. September 11, 1991 decision
which resulted in the decision of
the three-judge appeals court on
June 4; 1992. Gardner’s original
execution date wus sect on. January
10, 1992, but was stayed’ on
December'S, 1991, pending the
most recent appeal.’ 68
His attorneys have until June
18 to file a motion in-the 4th
Circuit for a rehearing before the
full court. . _

Tia? .
ry soe

bad

awn

ewe’

1

By WILLIE PATRICK
Post Staff Writer

John Sterling Gardner, sentenced
in September to die for a double-
murder in For-
syth County,
wat given a iile
sentence
Thursday for

the Dec. 17,
1962, slaying of
T1-year-ol y
Shaver, oO
Clark Road.
Judge Wil-
Ham H. Helms

handed down <= 6
the sentence GARDNER
alter Gatdner pleaded gy to
second-degree murder. Gardner's
plea was part of a ploa-bargain

which stipulates he will not be
prosecuted for armed robberies of
two area businesses, The Patio and
Harkey's Country Store.

Gardner, 2%, who has been on
Death Ktow in Raleigh’s Central
Prison since the Forsyth sentence
was passed, entered the courtroom
at 4:31 p.m., escorted by two
sheriff's detetives and a guard. He
walked slowly, with his hands in
front of him. Hu wore a baggy brown
suit, white shirt and green-striped
tle.

The courtoom held only one apec-
tator during the hour it took for
Gardner's trial. It was a sharp
contrast’ to Gardner's Forsyth Su-
perior Court trial, which was well-
altended and made headlines daily
throughout the state.

Rowan Sheriff's Detective G.A.

Sides testified that the department
received a call al 10:38 a.m. on Dec.
17 from a man who said he was
holding one man, and thal (wo more
were loading up his ‘‘stulf,” and
were leaving In a white van.

A sheriff's deputy arrived seven
minutes later, finding Shaver lying
dead on a walkway outside the house
in a pool of his own blood.

Gardner said In his first statement
that he, Richard Dwight ‘Roogie™
Small, 2%, of Route 17, Lexington,
who at one time lived in the Gold Hull
urea of Rowan County, and Ronald
Darwin Bruscla, 37, of 6364 Old
Highway 52, Winston-Salem, escaped
in a truck with a white camper, and
not w van. The discrepancy in the
identification allowed them to pass a
patrol car that was driving tuward
the-Shaver residence.

»,

Gardner guilty of 3rd murder,

gets life

Sides said that in February,
Gardner tuld him he, Small and
Bruscia went to the Shaver home, as
Hruscia had talked about breaking
into a house in Howan County. He
said none of the men knew Shaver.

The three men were surprised by
Shaver at the home, Sides noted,
while reading Gardner's lirst state-
ment. Gardner said that while
Shaver held «a gun on Small, he and
Hruscia left but returned and suc-
prised Shaver from behind. tle told
Sides that Bruscia shot Shaver

Later in February, Gardner
changed his story in another state-
ment to Sides. This time he indicated
that it was he who shot Shaver, by
surprising him from behind and
Causing the gun, a .38-caliber pistol.

Coatlased om Page 4-A

Contiaued from Page !
to go off while Shaver held it in his
own hand.

Gardner claimed the shooting was
accidental.

On Sept. 28, Gardner gave a
Forsyth County detective and Sides
another statement, this time indicat-
ing that Bruscia and Small were not,
involved. He named two other men,
whose names were not fead aloud in
court testimony. Gardner told the
detectives that “even my Rowan
County attorney (Bays Shoaf)
doean't know about this.”

Gardner told the detectives that
he was “in a new program here” in
Central Prison, and ‘they can’t do
any more to me than they have,’ and
that ‘‘Ron and Boogie weren't even
there.”

The autopsy report on Shaver
indicated he died of asa gunshot

wound, with the bullet entering -

below the left ear, traveling upward
and forward.

Assistant District Attorney Ron
Bowers narrated Gardner's prior
conviction record, which included 11
other convictions before the Forsyth
County double-murder, —-

Shoaf said he confronted Gardner
at Central Prison about his conflict-
ing statements, and Gardner real-
firmed the first one as the true one.
He also sald he would testify in any
case Involving Small.and Hruscia,
according to Shoaf. '

Gardner was sentenced by Helms.
and at 5:28 p.m., was escorted from

‘the courtroom.

The condemned man was given the
option, after his September convic-
tion, of being put to death by lethal
injection or the gas chamber. His
execution date is Feb. 3, 1964.


AANSTON-SAPEM JOURNAL

87TH YEAR No. 178 Wrvston-SaLen, N.C. Sunpay, SEPTEMBER 25, 1983 %& 178 Paces Newsstanp—75 Cents, CARRIER-SS CENTS

By Gary Terpen!
pa Keita Ai stole

As Judge George Fountain read the

Steak and Ale Murder Trial Revealed an Unhappy Life

Per Geeerwrs

The life of John Sterling Gardner Jr.
gat ie a broken bore in Winsion-Sa-
em snd could ené wn Gesth row in
Raleigh.

The Ume ta betweer, was patbetic and
nrtsred, Gardner's court-appointed al-
i TA perp ag? Aiea aleplebe
iecused of what bb prosecutor called
wemeditated, colé-bloosed killing.

A pacy corvicted birn Tharsdzy, and e
vége sentenced him Friday to éie ba the
zas chamber,

He was ocwed of killing a bartender
ané @ manager-trainee with a shoigon

4uring a robbery ot a Siesh end Ale
Resisuram bere. '

7

éeatk sentence, Gardner's eyes clouded,
and a tear trickled down his cheek.

sornetbing about his eyes,” ove witness
testifeed She was a waitress who said
that she bed cought a brief glimpse of
him in the Ale parking bot just
after the shootings.
“The way be stared al me really
scared me Something abot him — }
couldn't take my eyes of! him”
Garénef ts a slender: maz with s dark,
shaggy beard But people whe see bim
for the firs( tire invariably comment en
bis bive Rhee Age & 1 Gardner's
eyes are frightening { they can cul

of through you.
t his girifriend says that bis eyes are
what attracted ber to him.

“They're aot hard eyes,” she naid, arnil-
ing “They're soft eyes. They're besutiful

eyes.
-” Gardner's life seemed to be filled with
drugs. alcobel, violence and éejusions.
An only child be was bors tc Winslon-
Sater 25 years age A paychistrist testh
fred that Gerdner told ber that his moth-
er was a wino and that be hated bis
father, who was a merchant sailor. The
parents were ¢ivorced when Gardner
was 3.
At S, be was seri to 8 boerding achoot.
Ho father recalis that bis sou would
we obey him
Every ume I'd extend my hand, be'd

bile 1.” his father 3214 in an ielerziew on
March 23, the day after hin son was

charged with the Steak and Ale murders.

Gardner's father said that his sos tried
to be the center of attention in school —
making moines and faces.

When Gardner misbehaved, bis father
whipped him with s swiich

Gardner said that his son seerned to do
al right in school! enti! the seventh grade,
when be started te get demerits Many

oe
tnizhed

After Gartner éropped evi of school —
be testified that be finished the ninth
grode — be often ran away to visi board-
ingecboo! friends in Elizabeth City, bis
father said.

The psychiatrist who exarpined

Gardner five months ago sald thet

18 — morijeona, ampbets
and PCP. Gardner also drank beevily,

the peychiatrist sald:

In bis confession to police, Gardner
paid that he injected e half-gram ef am-
phetamines into each arm before the

shootings st the Steak and Ale.

Gardne: married 8 yea
wher be was 17. His father said that bis

The

— Coariene —

right arm.

marriage lasted only 2 few yeors.
prychistrist said that Gardner
told ber that be often became violent —

Contineed From Page Al
wouldnt peed but one sbot
x - Ropes
A man who testified in
Gardpaxs trial said thas
Gardner always had guns.

Sef! Reval, who awaits trial
of, armed-robbery charges in
a case in which Gardner bas
pleaded guilty. said that
Gardner had one favonie
shotgun that be called “Mas-
ter Blaster”

Royal said that be met
Gardner in the Yadkinville
Prison Unit aboul three years
ago and knew him more re-

cently through drug éeals He
described in his testimony the
scene in bis home near down-
town Winston-Salem early

“this year.

“There was guns coming in
and out all the time,” Royal
testified “The people I associ-
aied with wa: the type of
people who carried weapons.”

tt was Royal who alerted
investigators to Gardner's in-
volvernent in the Steak and
Ale murders. '

He testifed that in January,
he, his wife. Gardner and oth-
ers were watching television
at his house. A Crimestoppers
announcement came on ad-
vertising a reward for infor-
mation about the robbery and
billings.

“Mr. Gardner stated, They
sure would like to know what
1 know about that” Royal
testifred *~} would sure like
to make another lich lhe
Steah and Ale. Two thousand
five hundred sollars don't
come every day.”

Royal said that he really
Grént beheve Gardner and
that be was too drugged at the
lime to think about what
Gardner had admitted Going.

But he did recall later, and
Gelectives questioned
Gardner wn February They
tesufred that Gardner said
that be knew mothing aboul

1 away

the murders \
Rut another part of Card-

net's persons! began to

c on Ma when he
colled a Getectivg with the
Furyth CountyShenifs De-

saa arg! anid that be had
ard thing about the
. Shooungs 4

Ané be tolé detectives
about Johnny — a sirepping.
ruthless, shoigun-toling Hell's
Ange! who could fest walk in
or. somebody and blow him
Detectives were con-
vinced that Johnny was Gard-
wer's aller ego.

: Gardner referred to her as his

Garéner poor gave inveati-.

gators a tape-recorded con- ;
fession. .

In court he said that the
taped confession was untrue.
He told detectives what they
wanted to bear so they
wouldn't arrest his girlfriend,
Kathleen L. Giordano,
Gardner testifred.

He met Ms Giordano on
Dec. 16 last year al 8 topless
bar on Interstate & in Lexing-
ton. Ms. Giordano testified
that she moved to Lexington
from California “for a change
of pace” and started working
at the club in mid-December.

In an interview during 8
break in the trial last week.
Ms, Giordano said that she
really fell for Gardner that
night It was his eyes. But she

made him brush his teeth be-
fore she hissed him because
he had onion on his breath

On Dec. 20, Gardne: moved
into her apartment, which she
shared with 18-year-old Greg -
Teel and her 2-year-old :
Gaughtet, Tracie Angel Gior- |
dano. |

She said that they broke up
in January because Gardner
started using drugs But they
got bach together, and

fiancee during testimony.

She sard that Gardner was
broke and thal she supported
him when be moved in He
hod 3 pari-lime jod learning
bow to finish concrete, she
aard, and by Christmas Day be
had enough muney to bey Her
a Si Bernard puppy.

A> she waited for Cardner
‘Ww come bec imlo the court:
room, Ms Giordano shook her
bead, staring al the emply
gerivel chair that he used dur-
tng the trial She said that his
poe fault was lying and that
be had told detectives a real
whopper when he made the
confession.

“He's a bed fiar.” she said. |

laughing rwefolly “Bot be's -
: me meréerer” ate

role woman

argernents with bis wife.

A éclective Lestified that Gardner told
him that be began to offer blackouts
pire ee ego renga tg
that Gardner told him that be blscked
ool once Guring a fight with bis wife.
When be came to, the inside of his bouse
was 8 shambies.

While Gardne; was married, be

father said
He showed his familiarity with weap-

or asked him last .


aN ‘, owe on

Appeals court rejects

1:appeal of death sentence -

A federal ‘appeals court Friday

_rejected an appeal by a North Caro-

‘lina inmate who contended that he
was improperly sentenced to death

‘for the 1982 slayings of two work-
ers at the Steak and Ale restaurant
in Winston-Salem. |

, John’ Sterling Gardner Jr. had

“been scheduled to die Jan. 10, but
the 4th U.S. Circuit Court of Ap-
peals stayed the execution to hear
his case.

Gardner argued that he was de-
nied effective representation at his
sentencing hearing because the

-only witness was a psychiatrist wha
had evaluated him for competence,
» He said his lawyer failed to investi-
-‘gate his difficult childhood that re-
“sulted from an abusive father and a
‘.drunken mother. .

The three-judge panel said the
-idefense lawyer tried to introduce

‘.evidence about Gardner’s past but

the inmate repeatedly said he did
hot want his family involved. —__ |.
_ The court dismissed Gardner's |

contention that the lawyer should

“ have ignored his client’s wishes

“because he was irrational.

e “There is no evidence to support

_a finding that Gardner was ‘irratio-

>f ‘nal’ and incapable of making a
gasoned judgment concerning the

nse of his case,” the court said.


. ‘
’ Og

‘ oe 8
ANSE Lis

f°

a

[ARDNER, GA S
Convicted killer’s fate
in hands of high court

;

Death penalty foes
set back on vigil

By JOSEPH NEFF
and PAMELA BABCOCK

Stat wihters

RALEIGH — The fate of double’

murderer John Sterling Gardner
passed to the U.S. Supreme Court
on Wednesday after a federal

_ appeals court and the N.C. Su-
preme Court declined to stay his
execution. .

And a group of death penally
opponents lost a round in its own
Icgal appeal for the right to stage
a candlelight vigil oulside Central
Prison tonight in the hours Ieading
up to Gardner's execution, sched-
uled for 2 a.m. Friday.

The U.S. 4th Circuit Court of
Appeals declined to grant relicf to
Gardner, who is to die by Icthal
injection. A small cheer went up
in the N.C. Attorney Gencral's
Office on Wednesday afternoon
when the appeals court decision

arrived,
“Al some point in lime, we must

yield to the finalily of judg-.

ments," wrote the three-judge
appellate panel. ‘We do so in this
case afler a painstaking and
thorough review of the records
and find nothing in it that would
accord the petitioner relicf."

The N.C. Supreme Court de-

clined late Tuesday to hear Gard-
ner's appeal.
, Robert Elliott, Gardner's attor-
ney, said in a telephone interview
that he thought prospects were
“‘very bad, very poor" for a stay
from the U.S. Supreme Court.

“But there's still a little bit of
hope left in me," Elliott said. “It's
not out of the question."

In a petition filed with the
nation's high court, Elliott argues
that the instructions given the
Jury narrowed the type of mitigat-
ing factors jurors could consider.
A 1989 U.S. Supreme Court ruling
widened the scope of millgating
factors jurors could evaluale
when weighing the death penalty,
he said.

Elliott also argues that Gard-
ner's (rial lawyer failed to present
mitigating evidence during the
trial because the lawyer was
impaired by cocaine and alcohol

abuse. ‘And if the jurors had
known of the abuse that Gardner
received from his parents since
infancy, Elliott argues, they
would not have rendered the death
penally;

Depuly Allorney General Joan
Byers said the allegations of drug
abuse by trial lawyer Bruce Fra-
ser were baseless charges that
Fraser's ex-wife made. Affidavils
filed by the trial judge, the court
reporter, the proseculor and a
bailiff showed there was no evi-
lence that Frascr was impaired
ducing the trial, Byers said.

Meanwhile, the fale of a candle-
light protest remained In Imbo
Wednesday as altorneys for the
N.C. Council of Churches scram-
bled to find a new protest sile for
opponents of the death penalty. .

"A Wake County judge upheld a
Department of Correction deci-
sion and denied the protesters’
request to hold a vigil on a grassy
area in front of the prison during

Gardner's execution.

The tussle over the protest vigil
could return to court today unless
allorneys for the N.C. Civil Liber.
tices Union secure a permit from
the N.C. Agricullure Department
to gather on a sile just west of the
prison.

Judge F. Gardon Batlle of Wake
Superior Court said Wednesday
that opponents should not be
allowed on the half-acre knoll in
front of the prison, where they
have gathered for the past four
executions. Battle said thal
though the prolesters have a
constitutional right to protest, the
Correction Department's denial of
the permit “is supported by valid
concerns for prison security and
the danger of confrontation or
violence taking place on the pris-
on property.”

He said he also feared that
death penalty opponents would
clash with death penally support-
ers. On Oct. J, the family of anc of
Gardner's victims gol a permit
from the Raleigh Police Depart-
ment allowing up to 150 peaple to
march on the northern side of
Western Boulevard, ;

Meanwhile, Gardner maintains

his own vigil on death row.

“He's accepting things as they
come, with dignity,’ Elliott said.
“IIe's known for some time that
we don't have a great deal of
hope.”

Gardner was convicted of the

1982 shotgun murders of Kim
Miller and Richard Adams al a

- Steak & Ale restaurant In

Winston-Salem. Prosecutors say
Gardner killed Miller and Adams
during a six-week crime spree
fueled by alcohol and drugs.

Shortly after midnight Dec. 23,
1982, Gardner forced his way into
the restaurant at gunpoint and
herded Miller, 24, into the office
where Adams was working. When
Adams, 21, rose from his desk,
Gardner shot him and then shot

Miller.

“I remembér Kim Miller beg-:
ging me not to shoot her,""-Gard-.
ner said in a confession. “But
when things came clear to me, |
was standing aver the bodies of
Kim Miller and Richard Adams.
They both appeared to be dead."

Sentence inexcusable

We wrile to you on behalf of John
Sterling Gardner. He is scheduled to be
excculed Oct. 23 by the stale of North
Carolina. Gov. Jim Martin has denicd
Gardier clemency; however, he may
still commute Gardner's sentence to
lifelong imprisonment.

New evidence revealed after Gard-
ner's sentencing shows that he did not
reccive adequate representation as
guaranteed to every American citizen.
For instance, Bruce Fraser, Gardner's
court-appointed atlorney, received repri-
mands from the state bar's Grievance
Committce only one month before Gard-
ner's trial. According to an affidavit filed
by Frascr's wife, Fraser went to court
under the influence of alcohol and
cocaine while representing Gardner.

According to the same affidavit, Fra-
ser also told his wife that he considered
Gardner a ‘“‘scumbag” and that he was
not going to put much effort into the
trial. Fraser held true to his word and
failed to present mitigating evidence
about Gardner's childhood, thus remov-
ing the option of life Imprisonment in
Gardner's sentencing.

Nat only in question are the merits of
Gardner's sentencing, but also the mer-
its of the death sentence itsclf. The
Universal Declaralion of Human Rights,
adopted by the Uniled Nations, guaran-
tees for all people protection from crucl
and inhuman punishments. By convict-
ing Gardner of murder, the state has
convicted him of a cruel and inhuman
crime. By what power can it commit the
same awlul crime upon Gardner? Gard-
ner‘s crime is inexcusable and he should
be held accountable for it; however, just
as inexcusable is the state's chosen

punishment.
JOHN V. MATTHEWS II

Hertford
JOSHUA M. HUMPHREYS

New Bern


Ly olen -Sokum Yourndt / 0/22/02

Gardner |
Prepares
For Death

W@US. high court
would be last appeal

By WIH Lingo
JOURNAL REPORTER

John Sterling Gardner Jr. was
moved to the death-watch section
of Central Prison last night, in
preparation for his execution early
Friday morning.

The 4th U.S. Circuit Court of Ap-
peals rejected one of Gardner's last
appeals yesterday, and said It could
find nothing about the case that
would entitle Gardner to a stay of
execution or another court hearing.

“The present case (shows) that
capital-punishment litigation is a
long and profoundly litigious proc-
ess,"’ the court said. “At some point
in time, we must yield to the finality
of Judgments.”

The court's decision came one
day afer the N.C. Supreme Court
rejected Gardner's appeal. Gov.
James G. Martin rejected Gardner's
request for clemency last week.

Unless the U.S. Supreme Court .
steps in, Gardner will be executed
by lethal injection 2 a.m. Friday. He
was convicted of killing Richard A.

See GARDNER, Page 18

Stop Gardner's execution

John Sterling Gardner is scheduled to
die Friday morning. Yet, if his execution
oes ahead, we will all wake up the next
morning not being one iota safer, Indeed,

I think the first step we could take to-
ward making our society a safer, gentler
Place would be to Stop the execution,

Gardner was abandoned by his mother
when he was very young. He was regu-
larly beaten and terrorized by his father,
He was placed in several foster homes,
only to be returned to his father and fur-
ther ill-treatment. i

None of this mitigating evidence was
Presented to the jury by his lawyer, who
was abusing drugs and alcohol during the
trial. I recognize that Gardner should be
punished, but he should not suffer for his
lawyer's incompetence.

It is frequently hard for death penalty
Opponents to express their Opposition at a
time of an execution because people's
hearts are rightly with the victims’ fami:
lies. But these are exactly the times when
we need to make it clear that to prevent
more crimes like Gardner's, we need to
Stop using the death penalty.

The death penalty doesn’t deter crime,
It is arbitrary, and it extends the degree

Of violence in a society.

Politicians pandering easy solutions to a
Scared society aren't going to tell you
that. Yet half the world knows it, includ.
ing all the democracies of Europe,

GEOFFREY MOCK
. Hillsborough

GARDNER:

Continued From Page 13

Adams and Kim Miller on Dec. 23,-
1982, at the Steak and Ale Restau-
rant on Stratford Road.

Gardner's attorneys have con;
tested his case through several

rounds of appeals over more than -

nine years. Thelr latest appeals say
that Gardner did not get a fair trial
because his trial attorney, Bruce C.
Fraser, abused drugs and alcohol
and did not present evidence that
could have helped Gardner.

THE APPEALS COURT, in a
strongly worded 27-page opinion,
said that Gardner has raised these
issues too late and has not proven
them anyway. His attorneys would
or should have known soon after
the trial if Fraser abused drugs or
alcohol:

“We find it peculiarly Interesting
that Gardner never previously
raised this allegation ... where
such abuse would have been pellu-
cidly obvious to those individuals,
including Gardner, connected with
the trial,"* the court sald.

But even If the allegations had |

been raised properly, the court sald
that none of it would have made a
difference. “Gardner simply does
not identify, in any way or manner,
any action that Fraser could have
taken to enhance his chances of
success," the court says.

Gardner will be alone in his death
watch cell, which is adjacent to the
execution chamber. He will be un-
der 24-hour guard and will spend
his entire day in his cell; except
when he comes out to take a show-
er. He may watch television or lis-
ten to the radio and he may have
visitors,

He will remain there until he re-

celves a stay of execution or until

he Is led to the execution chamber:

Just before 2 a.m.

People for and agalnst the death
penalty will gather near the prison
this evening. Death-penalty pro-
testers will have to hold thelr vigil
tonight across the street.

People who support capital pun-
iShment are being allowed to hold
their own vigil near the prison.
They got a permit from the city of
Raleigh, which controls the land on
either side of the road in front of
the prison.

JUDGE F. GORDON Battle of
Wake Superior Court upheld yes-

terday the Department of Correc-.

tion's ban on demonstrations on its
property during the execution.
Battle ruled that the department
of correction could use its discre-
tion to determine what might con-
stitute a safety hazard at Central

_Prison.

Attomeys for the N.C. Council of
Churches and the N.C. Civil Liber-
tles Union argued that similar vigils
in the past had not caused prob-
lems. The state said that demon-
strations last year disrupted prison
security, °

S. Collins Kilbum, the executive
director of the council of churches,
said that the decision violates the
group's freedom of speech and its
free exercise of religion.

But he sald he understood the
department position: “People in
different positions see things dif-
ferently," he sald. “I believe their
intent was not to squelch freedom
of speech."

James Smith, a deputy attorney
general who represented the de-

partment sald: “This is not a matter

of free speech. This Is not a public
forum. The U.S. Supreme Court has
held emphatically that prisons are
not public forums,"

}0/22/4 =


N.C. death row inmate
faces Friday execution

* By DAVID PERLMUTT
Stat Wer weve
ing a last-minute repneve.
Ne uorimaned killer John Ster-
ling Gardner on Friday will
become the 26th, or 27th, person
put to death this year In the United
States — the most in any year since
1962.

It comes at a time when support
for the death penalty has become a
political icon of conservatism,
even among Democrats fending
off attacks of being too liberal.

All three major presidential can-
didates say they favor capital pun-
ishment. And it's hard to find
candidates raising an opposing
voice in the 35 states where the

souri man was scheduled to be
executed Wednesday night.

“It isn’t politically fashionable
....” said UNC-Chapel Hill politi-
cal scientist Richard Richardson.
“It is directly linked to the rise in
crime and a feeling at least by
some that the death penalty is a
deterrent. ;

“Even if the Democrats win the
presidency, | don’t see much activ-
ity against it in the future.

Death penalty opponents say
their voices won't be heard early
Friday when Gardner is scheduled
to die. They've been banned from
Central Prison grounds in Raleigh.

Gardner, 34, a Davidson County

death penalty is allowed. A Mis- Please see Death/page 8A
oz
On
3a
On
bs
| te BE
U \. G a le C- we
c ho
eo , cere ee zg

[6/22

Z766T

‘AVGSUNHL

ee

” after the 4th Cir-
- cuit

Death

U.S. Supreme Court
inmate’s last recourse
Continued from page 1A ;

native, will die by lethal injection
— his cheice — for killing Kim
Miller, 24, and Richard Adams, 21,
during a 1982 robbery at a Steak
And Ale restaurant in Winston-
Salem. A Forsyth County jury con-
demned him to die in 1983.

Nine years later, his options fora
stay of execution appear jo be all
but exhausted. ee
He was moved oqz%
to the death %
watch = area &
Wednesday

Court of -#%
Appeals in
Richmond ge
declined to stay je
his execution. ¥
He would be
the fifth person
executed in
North Carolina since 1977, when
the death penalty was reinstated.

Last week, Gov. Jim Martin said
he wouldn't grant Gardner clem-
ency.

Tuesday, the N.C. Supreme
Court rejected Gardner's request
for a stay. So his last chance is the
U.S. Supreme Court, said Marshall
Dayan, one of Gardner's lawyers.

Dayan filed papers with the high
court making three challenges,
including that Gardner's trial law-
yer used cocaine and mishandled
the defense. He said the attorney
didn’t use evidence about Gard-
ner’s troubled youth that might
have swayed the jury.

“Our chances are not good,”
said Dayan, a lawyer with the N.C.

Gardner

Resources Center, supported by.

SS

State and federal money to repre-
sent indigent death row inmates.

The execution is scheduled for2 |

a.m. Friday, hours after lights at
Central Prison in Raleigh are cut
off, and hours before they are
switched back on.

Prison officials said the time
discourages unrest among
inmates.

“It is fit into where there is a
natural ebb of activity and before
there is a start of another day,”
said Central Prison spokesman Bill
Poston.

But some death penalty oppo-
nents say the early hour is set to
discourage outside protest. It
hasn't in the past. Attorneys for the
N.C. Council of Churches and the
State chapter of the American Civil
Liberties Union argued at a hearing
Tuesday that prayer vigils have
been held on prison property.

For Friday's execution, how-
ever, death penalty supporters got

permission to gather on city prop-.

erty next to the prison, and Correc-
tion Department officials refused
to allow opponents on state land.
A Wake County judge upheld that
decision Wednesday. Opponents
plan to demonstrate across the
street from the prison.

“I frankly can’t recall a more
blatant exercise of raw political
power,” Dayan said. “That we've
come to this in this state —
silencing matters as important as
life and death — is an outrageous
treatment of liberty.”

Even as Gardner awaits his fate,
debate continues over the effec-
tiveness of the death sentence asa
deterrent.

A Gallup poll last year showed
that a majority of Americans —
76% — supported the death pen-
alty. However, when life imprison-
ment without parole is an option,
support drops to 53%.

UNC Charlotte criminal justice
Professor Robert Bohm, consid-
ered a national expert on the death

47 in 1962

did not allow

1968 and 1977.

The Supreme Court

executions between

\\

x

*82°83°84°85°86°87°88'89°90°91°92

Source: UNCC Criminal Justice Prolessor Robert Bohm

penalty, doesn’t believe capital

punishment is much of a deterrent. -

Public perception, he said, is that it
does deter others from murdering.

“But there is very little reliable
support for that,” Bohm said. “In
fact, there is some evidence that
suggests it... might actually lead
to murders.”

He said some studies suggest
that some people kill in a suicidal
attempt to be put to death by the
State.

Bohm said another general per-
ception is wrong — that it's
cheaper to kill a murderer than
keep him in prison [or life.

Studies show that it costs con-
siderably more to execute a per-
son. In Florida, for instance, the
trial and appeals cost an average
$3 million. Florida, on the other
hand, spends $500,000 to $1 mil-
lion to keep that person in prison
without parole. :

That doesn’t sway supporters.

Dick Adams of Grifton, N.C.,

MIKE HOMAN/Siatt ;

j
father of victim Richard Adams, :
said he has gathered his own!
numbers since his son died in
1982.

Adams, chairman of the state's
Crime Victims Compensation
Commission, said that federal fig-
ures show that 15% of convicted
murderers who are released mur--
der again.

“Up until Dec. 23, 1982, if you
asked me or my wife what we
thought about the death penalty, |
don’t know how we would have
voted,” Adams said. *... There is
absolutely no doubt in my mind
that if you turned this guy loose on
society, he would kill again.”

The state, he said, is taking the }
night action.

“He's not going to kill again. I'm
damn sure of that if everything
goes as it is supposed to.”

oo00
The Associated Press contrib-
uted to this article.


*
ba}

- expressing concern that Mr Gardner may have been inadequately

represented at trial by an attorney who has since been suspended from
practising law in North Carolina;

- referring to the important, mitigating evidence concerning John
Gardner’s background which was never presented to the jury which

sentenced him to death.

APPEALS TO:

The Honorable James Martin
Governor of North Carolina
State Capitol

Capitol Square

Raleigh, NC 27601-2905

(Telegrams: Governor Martin, Ralei
(Telephone: 1 (919) 733 4240)
(Faxes; 1 (919) 733 5166)

PLEASE SEND APPEALS IMMEDIATELY, to

October 1992.

~~ »

[Salutation]

gh NC 27601-2905)

arrive in North Carolina by 22

Oo Postage costs: airmail letters cost 50 cents.a page (‘2 0z.) to most
countries; aerogrammes are 45 cents each: airmail postcards cost
40 cents to most countries. Mail with colorful stamps may not reach
its destination.

O The name of Amnesty International may be used, although letters
written in a private or professional capacity are often more
effective.

QO) Telegrams and letters should be brief and courteous. Stress that
your concern for human rights is not in any way politically
partisan. Refer to relevant provisions in international law, such as
the United Nations Universal Declaration of Human Rights:

Article 3 - “Everyone has the right to life, liberty, and
the security of person.”

Article 5 - “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.”

Article 9 - “No one shall be subject to arbitrary arrest,
detention or exile.”

C) Send your appeals in English unless you are fluent with the
language.

O Please take action as soon as you receive this Urgent Action
appeal. Carefully read the recommended action and send a tele-

gram or. airmail letter immediately to one or more of the

addresses given. Other letters can be sent afterwards.

QO Correct salutations include: Dear Sir - for local authorities. prison

commanders, police chiefs: Your Honor - for judges: Dear
Admiral, General, Captain, etc. - for military officers: Your
Excellency - for most minister-level officials and state presidents:
in closing use “Yours sincerely” or “Respectfully” for any
authority.


Proprietary to the United Press International 1985
February 19, 1985, Tuesday, BC cycle
SECTION: Washington News
LENGTH: 402 words
DATELINE: WASHINGTON

The Supreme Court Tuesday rejected appeals by 11 death row inmates,
including one who is scheduled to die early Wednesday in the Georgia electric
chair.

The justices refused to consider an appeal by Van Roosevelt Solomon, a former
Baptist preacher, who was convicted along with an accomplice of the 1979 murder
of a convenience store manager.

It was the second time Solomon had unsuccessfully asked the high court to
review his case. His attorneys had argued that Solomon should not have been
given the death penalty because he was not the triggerman.

Solomon, 41, is scheduled to die in the electric chair at 12:15 am. EST
Wednesday at the Georgia Diagnostic and Classification Center.

The justices also refused to review the case of Maryland inmate James Russell
Trimble, who was still a minor when he was convicted of the July 1981 murder and
rape of Nila Kay Rogers.

Trimble’s attorneys had argued the death penalty should not have been allowed
in Trimble’s case because he was a minor at the time of the crime and minors
traditionally have been allowed more lenient sentences.

The court also refused to review the cases of:

-- Jose Roberto Villafuerte, who was sentenced to the Arizona gas chamber for
the 1983 kidnapping and murder of Amelia Schoville and the theft of her car.

-- George Lemon of Florida, who received the death sentence for the 1982
murder of a former girlfriend, Kimble McNeil.

-- James E. Billiot of Mississippi, who was convicted of the 1981
Thanksgiving Day sledgehammer bludgeoning of his stepfather, Wallace Croll Jr.

-- Donald Dufour, who was sentenced to death in Mississippi for the 1982
murder of Earle Wayne Peeples during a robbery.

-- James R. Stringer, who received the death sentence in Hinds County, Miss.
for June 1982 slaying of Nell McWilliams. .

-- Maurice Byrd, who was sentenced to Missouri’s gas chambers for the 1980
execution-style slayings of four people during a $9,000 robbery at a St. Louis
County cafeteria in 1980.

-- John Thomas Noland of North Carolina, convicted of the February 1982
killing of the sister and father of his ex-wife, Susas Milton.

-- North Carolina’s John Sterling Gardner Jr., who was convicted of the
deaths of two employees of a Winston-Salem Steak and Ale Restaurant in 1982.
-- Albert J. Clozza, who was convicted in Virginia for the murder, rape and

sexual assault of a 13-year-old girl on her way to a bookmobile.

ie Ne ee pe

Ra

a

ENA GamLONTAE

URGENT ACTION PROGRAM OFFICE « P.O. Box 1270 « Nederland, CO 80466-1270 « 303-440-0913 »« FAX: 303-258-7881
| 30 September 1992
Further information on UA 423/91 (4 December 1991) and follow-ups (8
January 1992 and 14 January 1992) - Death Penalty
USA (North Carolina): John Sterling Gardner

John Sterling Gardner, who was scheduled to be executed in North
Carolina, on 10 January 1992 and received a stay of execution, is now
scheduled to be executed on 23 October 1992.

Gardner, white, aged 34, was sentenced to death on 23 September 1983
for the murders in December 1982 of Richard Adams and Kimberley Miller,
both white, during a restaurant robbery.

Gardner’s trial counsel was reprimanded by the state some four months
before his trial, and was later suspended from the practice of law in
North Carolina, for professional negligence: he was abusing drugs and
alcohol at the time of Gardner’s trial. He failed to conduct any
sentencing investigation or contact potential sentencing witnesses for
the crucial penalty phase of Gardner’s trial. An expert criminal
defense attorney reportedly testified that Gardner’s trial attorney had
failed to satisfy even the minimal standards of competence.

John Gardner suffered an abused and troubled childhood. He was born to
alcoholic parents, and abandoned by his mother when he was very young.
As a child he was regularly beaten and terrorized by his father. He
was placed in several foster homes, only to be returned to his father
and further ill-treatment. None of this mitigating evidence was
presented to the jury as a reason not to sentence Gardner to death.

BACKGROUND INFORMATION

As of August 1992, there were 110 prisoners under sentence of death in
North Carolina. Four prisoners have been executed by the state since
1984, the most recent being Michael Van McDougall on 18 October 1991.
Prisoners in North Carolina may choose between execution by lethal
injection or lethal gas.

Governor Martin (who has full power to grant clemency) has commuted one
death sentence during his term in office. On 10 January 1992 he granted
clemency to Anson Avery Maynard, a Native American prisoner, a week
before he was to have been executed.

Amnesty International opposes the death penalty in all cases as a
violation of the right to life and the right not to be subjected to
cruel, inhuman and degrading treatment or punishment, as proclaimed in
the Universal Declaration of Human Rights.

RECOMMENDED ACTION: © Please send telegrams/telexes/faxes/express and
airmail letters:

- urging Governor Martin to grant clemency to John Sterling Gardner by
commuting his death sentence;

This Urgent Action appeal originated from Amnesty International's research headquarters at the International Secretaniat in London, United
Kingdon Amnesty ievnrnesaieal I aes independent worldwide movement working for the international protection of human nghts. It seeks the

beihait of such people detained without charge or trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or
punishment of all prisomers without reservation.


Governor Jim Martin
State Capitol

Capitol Square

Raleigh, NC 27601-2905

Dear Governor Martin:

I am extremely concerned about the scheduled execution of John Sterling
Gardner, Jr. I am convinced that his difficult background and the apparent
negligence of his attorney merit further consideration.

The judicial system is designed to provide a fair trial to all people.
Gardner's attorney was reportedly suffering from a drug and alcohol
addiction during the trial and has since been disbarred for three years
because of misconduct and negligence in representing clients. Critical
evidence was not presented during the trial that could have made a
Significant difference to the jury's decision. It will be an outrage for
Gardner to die because of one bad lawyer.

I also believe that Gardner's abusive background deserves further
attention. He was routinely physically and mentally abused by his father.
This ultimately caused him to be emotionally disturbed and in deed of
psychological treatment.

I urge you to give deeper thought to the circumstances surrounding this
case.

Sincerely,

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“SALEM oe
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- SALEM, “NC, Sunpay, June 3, 1984 -* : ‘170 Paces NEWSSTAND-75 CENTS ¥: meh y :
He’s Haunted by a Cri

(ner Plays Cards, Watches TV and Plans His Appeal

ry Terpening 2 That conféssiod — and a guilty

“ot and Adams, a 21-year-old manager- he Is sure he will y plea to... : The leads just

ith Lawrence: -: ,, Wainee, were found : with his i . 7 {&3 the murder of a 72-year-old man in Row-* *tors said, ‘and they aren't

WReserters «27, “..". » fice at the Steak and Ale Restaurant on .: ‘Gardner, who free} he can County on Dec. 12, 1982 — Were ploys - Fro

| Right, Joba Sterling . South Stratford Ro ied i dq: =xto get out of an armed robbery _

} an eerie feeling that “about eight hours earlier of a 20-gauge -robberies and drug deals here, said that’. said He said that he took a gamble that ©

us cell on death row — shotgun wound in the head. 7 >. ‘+: he would not serve time for the armed

eeking around a corner . Despite the fantasies and nightmares, ‘way he worked. He always Carried a .22- Bob police information
gi ahecz ve Gardner said that he doesn’t believe in , caliber Pistol, he nota 20-gaage about the murders." .* gS a

when Gardner glances -: the Supernatural. He wishes that he did, shotgun. ‘23 22; ; ed a RR But, as he conceded’ it was a miscalcu- |

what haunts him: the ““$hough, because he believes that Miss . ; Gesturing with a pointed index finger, ~~ pated “4

og restaurant employ- , Miller and Adams might be Only .. he said that a 22 was all he ever needed.

onvicted of murdering “people who could prove that he is inno Fy. ies on

rly on the’ morning of peenb ee ys sxe Syke T1Mta = 3 -his fiancee, Kathleen L Giordano, who td Ret EE a ie ed

Joc iMR 9Lo e a es T dead people could talk,” he said ~Said that she and Gardner were aftheir s.InvesHgators resale ee ee

me images of flesh nN “trai ;

8G

‘at_Cen

al leads that suggested that someone else Pe,
* Could have

| sfhat he ended up convicted of three mur- “7d

; Corps ser- _ pain in their lives can end. Miss Miller’s
son the Gardner is the killer, Bets grasping at”. ‘ exay

Se bat Coben Straws as his execution draj fear, the d
rardner said, he will be Ee POR By gS LES Wh tee =
Every time an inmate id executed any-"3
where in the country, they said, Gardner 7id
qsends them a letter with leads that he-.:

a 2cFecent interview

1
¥ sei: BFE Esaid would prove tat he is innocent. -*; abo a,
PSR ES - Ionarts Feces oe see eg hig ESE nia. atte ben oe
eg yeu +P, eae WES Res Srb-. a R

BS erty.
re cole
es. *- Po 4


— oe wee Rte Sowa mere wee we we oe ee - + @

. . 7 £ “7 . - . . =? . _—

: «. . ete ete . es . ‘ @ i. . ha

eo? - ; - ste eo. bd . ” . = . 7
.4 7 << -oe : ‘

a -. .
3. .

Winston-Saleni_ Journal, Wasim Salem, Ne, Sindsj. 3 June 3, 1984

rdner

- Continued From Page Al -
ISON IS an-ugly, geometric hodgepedee at
arbed wire set between N.C. State University
ood near downtown Raleigh. Gardner can see a ae od
lot from his cell on death row. 4 ae
outside for an hour twice a week. His wiry'body’ ; eg ee
inch tall and welghs 152 pounds — shows thathe J ." 1...
sketball during those two hours. He said thathe |B +3.
dunk since he’s been in prison. ae!
: to use the law library for two hours a week. He’ Leg
his days in the common room off his 16-man
ag letters, playing cards or checkers, falking
ates or watching television’ -

i fan of the Boston Celtics and San Francisco :
said that he likes Baroey Rubble, a cartoon .
“Flintstones.”
son home isa forbidding maze of corridors with
ontrolled sliding doors. If his appeals fail, and
here, the grim setting could be a fitting back-
d of a life that he conceded has been bad.
dner talked tirelessly, with just a hint of a rural :
s adult life and crimes, he didn’ t want to say
childhood =: +
a Winston-Salem but was sai to’ a foster home *
pele asl berated ot aad ote
z-was8 °° mo
“the foster home, he lived with his father, a
2, in rural Davidson County. He went to school,
iis education has proved tiie Knowing that ”
‘umbus discovered the New, World never has.
said. AS
f learning stretched ‘to hobbies. as “well. He 3
recalled the tuba lessons that his father made : *
; a. te =. bas ees
L wants to ‘tote around big piece. of brass
he said, 2: :- SLs hete wes gece
he preferred to ting mh carsben bese
ttes and looking cool. He’ laughed and puffed
i a menthol cigarette, imitating how he looked. ¥-
Said that he enjoyed football, and he talked © Ee
sent have led oa dierent te. He wasa swt: aca
e with po or d college scholarship.
4h school coach in Tyro, boweret cones that ©
good enough to start, <5 hig St 4:
16 and In the 10th grade, Gardner quit school
tabeth City. He wanted independence front his ~
aid inst couldn't seem to let him grow ‘up and

tattle

ne ‘Cys. sSaoes ate oe. nie be

a | ‘d rather. know AR
rand -be ‘prepared for-it. ty

ices of death. te eae ne; =

| oe Sane we

pe

a 7 Rika

“me mionton a’. a OE


killing ¢
ing a robber
restaurant

om vis: : ‘+ - December 1 i beer) CR: ea DG hee
4 delayed Gardner oa Nis ages ‘exhausted his appeals. in state’ i Jonge ss Sep MOS yeh
*. . ‘ 4 mY ‘ in Me ts. ‘ ; 7 iss ' + AM : Del ee ace enre 7
: Be cs "The order came, five, SOUr' _- es . Rees
‘ appeal henderton Dispetch bik | aie \ pak Motion for stay of tak DARIN fg oy:
at dersonville: Times at) Thad ° Ranta et Ne esky cet
2 Mitte macors  | N.C. man’s “execution filed 29 0 20
: oo. igh Point nter : : ‘e TRON TY NS \'4 (Ce VW { ) etl h My ¥
Js yack sonville News ce een! _ fETGREENSBORO (AP) — Attorneys for John
a Retieaeaentent | | | EXECU Let 1 eee Gardner esked a federal julge Friday to stop
a oe et igs Tople omer ean ee |’ Gardner's execution until they can appeal his clse ©
De i Oe a oe CA delayed ae ‘afederal appeals court, Dec
‘ BPR Se amerton: ana RSE ame : zi ae: "Robert M, Elliot filed a motion for a
¥ Rie atts Ore Sp Monroe: Erlews- Herald : The Associated Press execution with Judge Frank W. Bullo
| ae : Gun Airy News a WINSTON-SALEM — John... District Court. The motion aske that “0 Nott
: New Bern: Sun Journal i Sterling Gardner will not be execut- | the éexecution'so that Gardner 8 naka F mie 3
Newton: Observer N ae ed next month after the 4th U.S.) his case to the 4th U.S. Circuit Court? 083 f
CTlaeigh: News & Observer > Circuit Court of Appeals issued an . . . Gardner, 33, was convicted in September vA 0
ro order delaying the execution. “killing two young employees of the Steak un ve
Dec § iH a : The order, issued Thursday, de- FRIED Gy Restaurant on Stratford Road during a robbery 0
ee gariee 3 layed Gardner's execution until the |... restaurant in 1982. ‘The victims, Kim Miller, 24, unc
ee court can rule on his latest’ peal. Richard Adams, 21, were shot with a shotgun.
The order came five weeks before | = = ~~ This is Gardner's third round of uppeals and
\ Gardner’s scheduled execution date |... probably hislast.. eign ees aa
| of Jan. 10. : : RE Tt ete INERT Cathet SRE A ay N.C ‘gata
= _ Gardner, 33, was sentencedtodie |. ‘The Times-News, Henderson Arla Da ta
after he was convicted of killing two “8” Sunday, October 13, 1991”
; * young employees during a robbery =. DS cha! Baa
| ~ of the Steak and Ale restaurant in
Winston-Salem in December 1983.
; Since then, he has exhausted his
4 appeals in state courts.
his is his firat hearing in the }
| federal appellate courts. ?
| The 4th Circuit had refused a vir-
| ‘tually identical request only 2%
Ne .; + weeks ago.
The court reversed itself after

‘qne of Gardner’s attorneys, Mar-
shall Dayan, filed a motion asking |:
for more time to brief.the court on |:
_ Gardner’s appeal.
- Dayan and Gardner’s other attor-
. neys, Robert M. Elliot and Ellen R.
Gelgin, have argued that the court
- would not have time to give full
8 oe consideration to Gardner’s appeal
a : before his execution date.
i‘  Gardner’s attorneys are basing
his latest appeal on an argument .

a es ae! | that was not made in bis, appeals to .
as hee ‘ the state courts: that his first attor-
KE SS) ci J} oo ne R Bruce ron Fraser, abused alco- 3 Ke ‘; gers ‘i ;
- | hol and cocaine at the time he repre- |’. aa a fel eae cei 8
ae : ‘ sented Gardner at trial. - ey ' a:
yoyws 7) Rraser was suspended by the a
Sipe Fae | : N.C. Bar in 1990 for failing to rep-.
ge ae sya Se . pesent his clients properly. The bar |.
Pe onoen Lie eo, Che — : said at the time that r had |'
3 Pi Tes : been abusing alcohol and cocaine. |
(v4. + Gardner’s appeal also argues that
. |; ¢ an important witness against Gard-
we ek ner has since admitted that he was
; RON aS A ae | ’ involved in the shooting,
\ ‘ Ce tage eek oe ‘a Greensboro News-Record }
. 5 } : A ay is + 3h . ere - ¥, Teanville allector ha
: see Bet PVRS hata eee Henderson Dispatch nat
vs mg . Hendersonville: Times News : 4
: ha of: Hickory Record at
dR: at ae wo, High Point Enterprise it
hae EAS SS ES ipa Wg Jacksonville News ‘ : i ; ‘
: : ai Kannapolis independent va? ia RI Raa es A ae
Kinston Free Press ot Suse MN A
i‘ Lenoir News Topic . titties? Daten aay teenie! Jen
Lexington Dispatch % rset eeaiay «|
Lumberton: Robesonian
Monroe: Enquirer Journal ott ‘ ‘
“eo | Morganton News-Herald —~ Saget } Mii a de
“aha Sees Mount Airy News ae eee a) te
ate tae Bie hag oda New Bern: Sun Journal it
: He eae Newton: Observer N E
ier Raleigh: News & Observer
ge lec 2 tH


“Third”
_ Appeal —
Rejected |

@ Decision will likely
_ Clear way for state
., tO set execution date
By Will Lingo Mame

‘ JOURNAL REPORTER
A federal appeals court rejected
John Sterling Gardner's appeal to
set aside his two death sentences
Thursday, clearing the way for
_ Gardner's execution later this year,
The appeal, Gardner's third, is .
likely to be his last.

. A three-judge Panel of the 4th
U.S. Circuit Court of Appeals af--
firmed a U.S. District Court deci-
sion in September dismissing Gard-
ner’s claims that errors at his trial

_ in September 1983 deprived him of

his constitutional rights, , "

yee = The decision

‘| removes a stay

{-of *execution:

“| granted to Gard-

ner in Decem-

ber, and the

State can now .

Schedule .anoth-

“er. hearing to set-*

iss Gardner's ex
ee TA Ney cution date. /
omen e.. Barry $,s16/ \
| SOHN GARDNER aii ee 2 wae.

- deputy attorney. general for North
‘Carolina; said that Gardner ‘could

a
‘

$ °g

M
bie}

Gardner’s |

_ preme Court would find anything

this year.”

. Sree murder in October 1983 in the

“This pretty much exhausts his ;
appeals in the state and federal
courts,” he said. “My best guess is
there's little chance the U.S. Su-

interesting to take this case on.

“We could see the actual execu- *
tion of John Sterling Gardner by

Gardner's aftorneys said they
were disappointed but will continue
to fight the death sentence. ‘This
appeal sought to overturn Gard-
ner’s sentence, rather than his con-
victions. ,

THE DISAPPOINTMENT was ©
evident in Robert M. Elliot's voice
after he read the court's decision
yesterday afternoon. “We'll have to
regroup, and we haven't done that
yet,” he said.

*“T'm sure we'll fight it all the
way. I'm not going to be artificially
optimistic at this point. I can't... .
It's awfully hard at this point to get
people to listen."

A jury in Forsyth Superior Court
convicted Gardner, 33, of first-de-

deaths of Richard A. Adams ars, 21,
and Kimberly Miller, 23.

Ms. Miller and Adams were killed
during a robbery at the Steak and

‘ Ale Restaurant on Stratfurd Road

_ on Dec, 23, 1982. The jury recom-
mended two death sentences for

Gardner.
' Gardner's attorneys’ main argu-
ment was that Gardner's trial attor

See GARDNER, Page 4

Reidsville Review

Rockingham: Richmond Co. Journal
Roanoke Rapids Herald

Rocky Mount Telegram

Salisbury Post

Santord Herald

Sheiby Star

Statesville Record & Landmark
Tarboro Southerner

Thomasville Times

Tryon Bulletin

Washington News

Wilmington Star

Wilson Times

‘|. ask for-a’rehearing by the full 4th Journal
eto Circuit and by. the: U.S. Supreme |
Court, byt that few alternatives re-
. Main.. einem Giedet « ulusaz
-. a : ‘ :

tion of mitigating evi a ~
‘enh €Nnce satisfies judicial «... cong ss —
Constitutional norms,". tsfies Judicial system, This is setting a

very, very low Standard for Jaw.

‘GARDNER
ardner's attorneys also say that yers," he said

5 ontinu m Page 1 Fras m ,
: ney, Bruce Eo at ie des ia ores and alcoho! He said defense attorn lear
7 i ‘ . im ¢ ar 7 ‘ . eVS cle:
ney, Fraser, ignored eyj- affected his performance Thee proved that Fraser hada lone,
.T. ‘C. standi

: dence th
’ - ( at could have er. .., , ;
; Jurors to give Gardner - ite soe pds ane iat abuse when it alcohol. “It's saat A alt
g ‘nded Fraser's law license in Tor us 18 @ impossible
urden for us to sh

{ tence,
They say that Fras ; . Ow he was actu-
: investigate Gardner’ becled to year and charged wi sates’ ence duri
: é er's bac &ed with possessing € duriny the
vand failed to present vide about three ounces of cocaine, ~ pr or five days of the trial," he
_ his poubled family life. ; « The court denied a request to Ga fae the standard, it's in
< US father's abuse of hi Abbie
. : um. Gar o. ;
od But the Court said of Fraser: “We de dner's attorneys have 14
be, cannot say that he acted unreason ‘litthe ‘i ec
y. *  “'s ably under the Circumstan ‘ € relevance to Fraser's ;
” se , ces \- : Crs con- | , ah ;
| ee to him before and at "he a at the time he represented Princ bbe ny Pecution Within a
“ime Of (the) trial, . + We conclude Eliot Tn coutt said. to the U.S. Sasteme Coot which
se d tl, which

* that his investigat; aid he j F
: at tlie, € is worried ; =
ation and utiliza. What the decision eknd for ae caste has declined to hear the
> twice,

fae, He

we



FREEMAN, Stephen _ Executec! 7/U/88

tephen Freeman, hanged for rape, Wilmington,NC
on July » 1888,

1889 undated CHICAGO TRIBUNE, sent by Massey &
containing 1888 execution lists,

Rape of Mrs. Addie Seoflers on 1/9/37. Denied!
guilt to the last. |

The Wilming Ton Mfkssenger 12/98 pyed

<< 9 -
as -

ql dit readiness. to receive
in them. ‘The body’ WAS taken. directly
sty! pent jail to’Pine For st cemetery

Stephen Freem uw

f és his Ori eg we. ier bu: pL too pl ace ‘shortly:
"The executio! pate Freeman, i" ih a a MAN'S eel i
for the. crime | ° ra | aulted Mrs\| Ada Sellers,

et Ook 'p ace 'yes-. feels cele: man Ass
nodn | in the: poun- ideale ; hl ‘white |v an, liv-

? ty jail. It lacked, nates of 11. aypang martied white /woman,

: o'clock / hen! th A lie aren f {the Gail | i ig on Sou h Thirteenth | i street near

: whe ‘Coors of | the ‘Jall ; arket, on, he night ofthe, 18th of

Were tinlocked| and the persona to | | :

Dey dy caeibier tes te rN vember, 887. She fully identifie
whom tickets 'o ‘admi s on'had. been |. ie :
‘issued wes = F ie wit Mitr ‘ts Maiti E e in tot * man who committed.

| alteria Ge: eas fault robbery, and he was

ing portals. » ‘Th in te dhe | ered | at the lovember term of "the:

some thirty or Htouty? viene 3 the | 1 inal .Cd art
" | Crim nal. ‘- Thos. Ww. Strange.
sheriff's ee four, palicehlen and: | J ba | Elliott; sqs., _ being
a

two colored ministers, : several | éngag ed. his counsel. ‘The-trial

= sicians, ne Wspap er meport roy) and J tasted tivo. OF. three. days and every.
others who were p cee effort! ita ie py, thle prisoner’s

curiosity. A. fow minu es atter th | ‘
crowd had entered Deputy! Sheritt counsel and friends to secure an ac

quittal There were . some forty wit-
uae ‘accompanied by Del uty } ve nesses | sumn ned,. eighteen for the,
der and two of three |

: other eTsO} Ss State and t verity-two for the defence..

entered the cage where, idigg an was 1 Mrs: grea ‘the chief leit ness for the

confined and proceeded | to Tead the’ Stats! testified I
qe

—
_positi ely | that Free
death. warrant | to the! con damned ? ,
man. Freeman who ha d bodn Walk'| man was the al a, ssaulted her,

an wh t
hin and her,t stim ony was orreborated
ing to:and fro i etopped, f by! that of, *:

the cage,
front of his cell! and listene d mrutety other witnesses.. pags
ide

He Was standing “by the Bi | of his
spiritual, adviser, Rev. Father: Burns,
and seemed iot one) ‘whit more con-

| aa ‘a
|, ‘
aa sg aqsota Be ct [Ee given bir hto a 2 tatatio child

ressed 1n @& neat 'su Bex wh ch | was | mitted by | the State)

frock coat and | pan te tha Garriéds a I ] i
that she ought uot tobe believed.
sniall black book ip one hand. Atter | The a “ak : iy ee wil Jably bons

Mr. Shaw had nish ed reading the ducted by Soli¢itor Moore, and a ver-.

; iH |
death warrant ; reeman said tha the dict of | aril | Was returned. by the

| | (bays ae
was not guilty, ut that ihe ¥ as pre- Wi tea slbee a ete Me
‘pared to die and h d fo vas | iPass | oe i eares sentenced Free i

TH: iP man. to be. hanged: on Thursday, the
bsdy. He Naresin told) ‘tha i : | | 22nd, of December, overr iling a mo-
anything fart er tor Say , | | ;

: 4-tion| [for pie | trial. An appeal’
|i then akien, to t : Supreme.
ns ee €o rt, which affirmed the! finding of |
him with Fath Cone 0 ie || the Criminal Court, and t ee Governor.

Five minutes afterwards appointed thd 93d - daht

Elder again et ered tH cae and | last as the: dath. of execution. In the
with two colore jisaretate proc eded. meantime Freem
| forwarded a petition to th e Governor.
le} | | asking | that, the sentence should be.
Tete ists commu ted: - life impriso ment. :
ants and exprossed the: pe: ; | Gov, Beales xe used the application,
‘there would be no delay i in | the, | but: upon an, & peal. for longer time,
on. When hi sen |e a, res bite until ithe ith of |
curely pinione mee y left the | | Mt ie
cage and mar hed. the > fe
trap | at the. oath a , pf

tit |

corridor. The! | ondemne ‘y :

bad sreucd by, counsel for
: Mrs: Sells Was

pried Freemali sp ke wie

M i Fipdiak wag ‘formerly, Ht stave. and’
Migr 1 clai ed. to. have been born. in Fay-

e > | etter ile, Je. | He: was married but.


FODRELL, Chase

(Need confirmation)

"Winston-Salem, NC, Feb. 13, 1909-For the murder of his
wife on Friday of last week, Chase Fodrell, a negro, was
yesterday found guilty in the Forsythe Superior Court and

sentenced to be hanged on Friday, April 30, 1909," JOUR-
NAL, Atlanta, GA; 2-13-1909 (2=2.)

Statence muted per
Raleigh News h Observer 5/27/09 22

DA Argues Others Helped
In Steak and Ale Killings

By Gary Terpening
i fiat Reporter

District Attorney Donald K. Tisdale told a
jury yesterday that John Sterling Gardner Jr.
‘was not alone at a Steak and Ale Restaurant on
the December morning when two employees
were killed.

In fact, the jury probably had heard his
accomplices testify, Tisdale said.

His startling remarks came al the end of the
third day of Gardner's trial in Forsyth Superi-
or Court. Gardner is a 25-year-old (rom David-
pon County who is accused of killing a bartend-
er and a manager-trainee at the Steak and Ale
oa Bethesda Road on Dec. 23, 1982.

Also yesterday, a cashier at a restaurant
next door testified that she saw Gardner run-
ning to a car at the back of the Steak and ‘Ale
on the morning of the killings.

Except for a tape-recorded confession that
Gardner says is not true, it is the only evidence

that puts him at the restaurant around the
time of the murders — 12:20 a.m. on Dec. 23.

Gardner testified that he confessed because
police had threatened to implicate his girl-
friend, Kathleen L. Glordano, in an armed
robbery that he has pleaded guilty vo.

He said that he loves Ms. Giordano, a 71-
year-old who works in & nightclub on Inter-

- state 85 in Lexington.

“That's fairly simple,” Gardner said when
Tisdale asked him why he confessed. “] was
afraid that they would try to implicate my
fiancee in something that I was or was not
involved in. | knew | wasn't guilty of \t, and I
figured even though I gave a statement on It, |
could prove I wasn't guilty.”

Ms. Giordano testified yesterday (hat
Gardner picked her up from work between
midnight and 12:30 a.m. on Dec. 23. She said
that they ate at a restaurant next door (0 the
club and went to their apartment.

See Others, Page 2

Coatineed From Page !

A man who shared the apartment confirmed the story in his
. testimony.

i But Ms. Glordano admitted to Tisdale that Gardner wrote

her a letter saying that he went to Winston-Salem after he

_ dropped her off at work about 6 p.m. on Dec. 22. And she sald

: that after police interrogated her for several hours, she told

Their apartment mate, Greg Teel, an 18-year-old who de-
: scribed himself as a “jack of all trades,” said that Gardner's
' attorney, Bruce C. Fraser, had told him not to say anything to
police about what he and Gardner did on Dec. 22.
. Tisdale said in his rice argument to the jury that Gard-
ners defense cannot be believed. : ‘
Holding up &-by-10-inch color photographs of the slain em-
ployees.— Kim Miller, 24, and Richard Adams, 21 ~ Tisdale
compared the pictures to the details of Gardner's confession,
which was tape-recorded by detectives on March 23. Tisdale
told the jury that only the murderer could have known many of
the details that were in Gardner's confession.
i Gardner testified yesterday that he made up the confession
and (illed’in details that were suggested by detectives who

glimpse of two pictures of the crime scene when he was left.

alone in the detectives’ offices at the Forsyth County Shertif's
‘ Department. ae ‘
, Only Gardner has been charged, and detectives said that the
' case is closed. Rut Tisdale told the jury that other people were
at the Steak and Ale with Gardner.
“You probably heard some of them testify,” he said.
—=serié did Not identity anyone by name, and he said over the
‘murmur of whispers in the courtrodm that those people would
be on trial with Gardner if investigators had been able to
. gather enough evidence. . . ,
He tried to implicate Teel yesterday when he questioned him

about admitting to police that he drove Cardner away from the
Steak and Ale. Teel denied saying that.

_The question of accomplices was raised yesterday during the
testimony of Linda L. Cain, a cashier at Kyoto Japanese Steak
& Seafood House at 585 Bethesda Road.

Ms. Cain sald she was leaving Kyoto about 12:30 a.m. on Dec.
23. When she got outside, she Lestified, she heard a loud noise
like a door slamming or a car backfiring. She sald that she
continued walking toward her car, which was parked near the
Steak and Ale. ~ ;

She testified that as she a
shuffling nolse that sounded ke someone running in tennis

shoes. She said she looked up and saw a person running toward ;

a car parked behind the Steak and Ale.
“When I saw the guy running, it startled me, and I stopped for

_ split second,” Ms. Cain sald.

She said that the man stopped, too, and with about 30 feet of

well-lit parking lot between them, they stared al each other for,

a couple of

seconds.
“The main thing that struck me was something about his

eyes,” she said. “The way he stared at me really scared me.
Something about him — I couldn't take my eyes off him.”
Ms. Cain said that dhe man got into the passenger side of the
car, which backed out of the Steak and Ale parking lot almost
immediately. ;
She said that she did not see anyone else in the car but that It
-appeared someone else must be driving because the car backed

As Tisdale began asking Ms. Cain whether the man she had
seen was in the courtroom, she began to fidget and glance at
Gardner, who has large, distinctive blue eyes set deeply under
dark, bushy eyebrows.

She raised her hand and pointed at him without hesitation.

“That's the one I seen,” she said. “It's just his eyes. I'll never
forget those eyes.” Pa ?

Gardner's trial is scheduled to resume this morning.

G-32A-83

her car, she heard a -


‘Yu.

Steak and A e Picked ‘at Random’ to Rob |

Taped Confession Played mn Murder Trial

By Gary Terpening

. - Spat Reperter
A downtown courtroom fell silent for a half-hour
yesterday afternoon, except for the tape-recorded
voices of a detective {alking to another man, who is
conféssiflg to Killing TW pebple at a Steak and Ale

Restaurant last December,

Police say that the confessor is John Sterling
ner Jr., 25, from Davidson County. He could be
sentenced to die in the gas chamber if he is convict-
ed of the hwo first-degree murder Charges against
him. ;

Gardner, who is accused: of killing a manager-
trainee and a bartender at the Steak and Ale at
South Stratford and Bethesda roads early in the
morning of Dec. 23, 1082, speaks in a deep, sluggish
voice on the tape. In the often rambling confession
— which he adinitted making but has sald Is untrue
— he tells of drinking, taking drugs and deciding to
rob the Steak and Ale at random.

Kim Miller, 24, of Yadkinville and Richard Ad-
amis, 21, were found dead in the restaurant's office
about 9 a.m. on Dec. 23. Miss Miller, the bartender,
died from a shotgun wound In the neck; Adams, from
a shotgun wound In the face.

The (ape that was playod in Forsyth Superior

Court yesterday is a recording of a statement that
Gardner made to detectives.on the eyening of
Marah 23. .
Gardner, who testified yesterday morning with
the jury out of the courtroom, said that he made the
statement but that it is not (rue: But Judge George

H. Fountain of Tarboro ruled, that it Is evidence that

the jury should consider.
With the Jury back in the courtroom, detectives
testified that Gardner became a suspect after a

friend of his told police that he had heard Garnder .-

talk about the shootings and robbery.

Detectives testified that Gardner had given them
a written statement on March 23. But they said that
Gardner decided to make a fuller oral statement
later in the day after he and several investigators
drove out Lo the restaurant and re-created the route
that Gardner said he took on the morning of the
deaths.

Detective M.L. Branscome of the Winston-Salem
Police Department testified that Gardner was alone
in an interview room in police headquarters after
returning from the Steak and Ale. Branscome sald
that Gardyper flagged him into the room and asked
him what he thought.

Branscome said that he told Gardner that the

detectives had not been told the whole truth. He sald -
that he told Gardner, “I believe you're the one who
killed those people: : . .

“He hesitated,” Branscome testified, “and said he
had problems of blacking out In the past.”

Branscome said that Gardner then hung his head.

“He sald, ‘1 killed them,’” Branacome testified.

Alter Gardner described going into the restaurant
and killing a man and a woman, Branscome testi-
fied, other detectives came into the room and bet up
a tape recorder.

The tape starts out with Detective Jack G. Bul-
lard of the Winston-Salem Police Department read-
ing Gardner his rights. A voice Identified as
Gardner's in a transcript of the tape agrees to make ©
the statement.

.Gardoer says that he left his house about 9 p.m. on
Dec. 22 and rode around in,Lexington, drinking. He
says that he had been drinking for three days.

Gardner says that he drove to Winston-Salem,
where he met a friend named Johnny in a bar. He
says that each Injected amphetamines Into his
arms. They sal in the bar's parking lot for a hall-
hour, talking about how they needed money.

“We were talking about — he neoded some moh-

: See Taped, Page 2

Coatiseed From Page ! ;
ey, and I needed some money,” Gardner says. “And so we
decided to go and poe a place to rob. We were just riding
around around drinking, and it just ha that we picked
Steak and Ale out at random. No special reason, just happened
to pick that place.” Pe

ardner says they got to the restaurant just after midnight.

“I parked the car around towards the rear of the building and
left the motor running and cut the lights off,” he says. “I had
borrowed Johnny's shotgun and went (o the rear entrance of the
bullding. I rang the bell, the service bell, and a young woman
came ‘to the door. She cracked the door, and when she did |
Ned it and walked In. I told her to go to the office,
ause I figured that late at night the money they kept would

be th a safe somewhere in the manager's office. By this time the .

drug had somewhat positive effoct on.me, when we got to the

office, she walked in and | was behind her. | didn’t expect.

anybody else to be there.
_ “J asked her for the money that she had, or they had, and at

the same Ume | was watching him. She had said something to,

him. I don’t remember quite what it was. She returned with the
and al the same time, while getting ready to hand it to
me, manager jumped up out of his chair and appeared to,

me that he had something in his hand, and at that point I don't
remember what happened until it was over.”
_ Bullard asks what Gardner means by “until it was over.”

Gardner says: “l was — when I realized what was going on ©
and what had happened, both the manager and the young
woman were dead. f picked the role 4 up and left the same
way I came in. 1 got in the car and wed the shotgun In the
back seat, and f left.”

According to the interview transcript, Gardner also told
Bullard that the wea he used was a 20-gauge sawed-olf
pump shotgun. He said that it belonged to Johnny, a Hell's
Angel who is 6 fogt 6 Inches tall, weighs 240 to 250 pounds and
has a talloo of a motorcycle whee! with wings over the slogan
“Born to Raise Hell.” ~

According to the transcript, Johnny was counting money as
Gardner drove away from the restaurant. Gardner said that he
dropped Johnny off at the bar where they met, then returned to
his father’s mobile home in Lexington.

Detective D.L. Diamont of the Winston-Salem Pplice Depart-
ment testified that invesUgators never found Johnny and that-
the case is closed. But, Diamont said, the investigation would be

lf police get new Information about the man.
he trial ls scheduled to resume this morning.

WWenotor,- Aalem Geurrf

G-21- 83

7 oy

Winston-SaLem, N.C.

FRIDAY, Lelie 23, 1983

». WINSTON-SALEM JOURNAL.

87?rH YEAR No. 176

48 Paces

ad

Weath.
Partly choedy.
midtts. Details. '

25 CENTS

:

thd

Jury to Decide of Sentence Today

‘ardner Convicted in Restaurant Killings

By Gary Terpening

Sw" Reporter

avy io Forsyth Ceart found John
mg Gardner Jr. guilty yesterday of killing
cnployees al s Steak and Ale Restaurant

c bours Later, ir a sentencing bearing. the
extor told the jurors to take 3 mental

ey back to 1220 arm oo Dec 23 1982 ©

pink about #1.” District Atloracy Donald
sdale urped calmly as be argued for the
> send Gardner to the g2s chamber. “You
abou! the stillness of that night And you
the footsteps...”
gaié that the footsteps belonged to
per, who walked into the Steak and AH on
nds Road and sho Kim Miller and Rich-
Adams with 2 2-gauge sbotgen before
poke benaen
reached wo decision yesterday
: sentence, which will be life in
2 o; Gesth in the gas chamber. The seven
ez ant five men on the fury had consid-

ered Gardner's fate for about an bour when
Fountain told them to break enti] this morn

Miss Miller, a fad psc ee bartender, and

nye a 5 evens manager-trainee, were

my kids, Tisdale told the jury.

ye os boon? be said in a@ voice that

almost to a whisper, “and you hug

your child. Because tha! could have been your
eaild”

People in the packed courtroom wept.

The fury deliberated the verdict for an bour
and forty minutes yesterday morning, and
dodge George M Fountain of Tarboro read the
verdict precisely at moon. It found that
Gardner was guilty of first-degree rourder in
the killing of Miss Miller and Adams during a
robbery at the Steak and Ake.

Teen the highly emotional proceed-
ings , Gardner rocked steadily in his
chair “cists is atlorpey, Bruce C. Fraser.

The defendant broke the rocking fre
e's. swiveling to whisper to Fraser or

"pass him bong. handwritlen notes.

One detective sitting to Gardner's Jef said
that be saw Gardner's eyes water slightly
when Fountain read the verdict.

But observers in the courtroorn could detect
nothing of Gardner’s feelings as be rocked,
even a3 Tisdale rained his voice and told the
jory that Gardner is pot worth being called a
burnap being.

What sort of man would walk into a restav-
rant with a shoigun, intent on robbery, and not
wear a mask? Tisdale asked the fury.

“Actually, it's fust a premeditated. cold-
blooded killing.” be said. “He ditin’t intend to
heave any witnesses...

“And we're going to call this a buman being
for lack of any other word J know of,” be said,
gesturing toward Gardner. -

Tisdale talked about the death Ny as
fasstice that our laws Gernand, and he seerned
weary a3 be concipded that bega! solr‘iums can
pever really be

“There is mo pustice,” Tisdale said. “2! pustice

were bere, we could raise ; fromm the
6ead.... We can't make the Millers whole, we
can't make the Adzmses whole.”

We can only do what our Laws szy, be said.

“J can't bring these young people back,” be
said. “I can't remove the scars from the fam-
ily. I can’ ever remove the scars from the
commnenity.”

Bot Fraser argued that executing Gardner
would be vengeance, not justice.

“It won't bring those two people back.” Fra-
ser said.

Fraser talked about Gardner's childhood
with an alcoholic rnother and a father that he
hated. He said that Gardner, who qui! schoo! at
age 15 and abused alcoho! and’a wide variety
of drugs, pever had a chance to make some-
thing of his life.

“Maybe if there’s sorme good in John
Gardner, we shouldn't execute it with the bad
in John Gardner,” be said “Can you reach
Gown and find sorne mercy for this pathetic,
tortured person?”

St9% Prete

John Gardner Jr. ts bed to county -

J ury Sentences | “EG@ardner Sentenced to Die

| * ve, e 28 ‘
U _. a Continued From Page.) were fired early that morn:
Gard ! H er to Die -Qardner probably wasn't ing. And he told the jury that
. “lone when the shotgun blasts it had probably heard Gard-

3 oe,

ner's accomplices testify.

. C Cardner's girticiend and their
n As am er apartment mate testified that

Gardner, was in Lexington at

| the time of the shootings.
| Tisdale also alluded to a

By Gary Terpening a

prone Reporter
A jury sentenced John Sterling Gardner Jr. ta die in the gas | statement that he said one of
the witnesses for Gardner —

chamber yesterday. ‘ ' Greg Teel, 18, of Lexingt
~ . ! . . ng wel?
Gardner, 2, of Davidson County, was convicted Thursday of made to police. Tisdale asked

murdering (wo employees of the Steak and Ale Hestaurant on \
Bethesda Road in a robbery last December. him if It was true that he told
The jury convicted Gardner of the two murders in an fi investigators that he had

———

and 40 minutes Thursday morning, | driven the car Gardner used

Then st met again Thursday allernoon and yesterday morn: , in the robbery and shooting».

were maren ing to decide if he would be sentenced to life in _ Teel denied making that

Rig prison or death in the gas chamber. Its decisiun  gLatement to investigators.
came after (wo hours and 4> minutes of deliber- After Gardner was convict:
ation.

' While Judge George M. Fountain of Tarboro pb am L eadenst US on lin-
read the decision — which said that Gardner & oe riroom,
will be executed on Feb. 3, 196 — Gardner approached an investigator
rocked In his swivel chair as he had throughout with the Forsyth County Sher-

his weeklong trial in Forsyth Superior Court. \if's Department and shook

He occasionally looked down bul did little to his hand. Teel and Gardner's
a” ty reveal how he felt. He told Fountain that he had girlfriend, Kathleen L. Cior-
aa * qothing to say. dano, 27, also of Lexington,
_? Deputies tovk Gardner to the Forsyth County have not attended the trial

Jail, where he talked with his attorney for several hours. since then.

Gardner, whose death sentence is automatically on appeal,
| will becume the 34th prisoner on Death Row in Central Prison
\

in Raleigh. Sevenveen other white men, one white woman, 14
black men and one male American Indian await execution
there.

A spokesman for the N.C. Department of Correction said that
the oldest case on Death Row 1s almost 9 years old The most
recent arrival was {our months ago, the spokesman said

\ 4 «No on has_teen executed since Oct. 27, 1941. Theodore
| Roykin, an uncinp oyed farm worker, was executed in the gas
chamber then for the rape and murder of a woman in Duplin
County on Christmas Eve 19
The prison spokesman said that Gardner may become the
first condemned prisoner in North Carolina to choose his
method of execution

The state legislature passed a law allowing the choice on
July 5, and the law lets a prisoner choose the gas chamber or a
lethal injection.

Hichard N. League. & special deputy attorney general in the
N.C. Department of Justice, said that Gardner probably would
be offered the chaice even though Fountain’s order specilied
the gag-chamber.

-. About # half-hour before the jury signaled deputies that it
had decided Gardner's sentence. detectives Irom the Forsyth
County Shecitfs Department and the Winston-Salem Police
Department met with Gardner in & holding cell behind the
courtroym = *

They talked for about 20 minutes. Detectives declined to
discuss the conversation.

Hut several court and law enforcement officials said that
Gardner may be willing to talk about who else was al the Steak
and Ale when Kim Miller and Richard Adams were killed, Miss

me Millerertt-year-old bartender, and Adains, & 2\-year-old
manager-trainee, were found dead with shotgun wounds about
9 a.m. on Dec. 23, 1983.

- District Attorney Donald K. Tisdale said during the trial that
See Gardner, Page 2


Convicted killer’s fate
in hands of high court

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See REQUEST, page 7A

Id to the f

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. Su-

1982. -:°-"

a

Winston-Salem | |. .

restaurant in

- John Sterling Gardner
. people ata

Request

now before

high court

Continued from page 1A

ments,” wrote the three-judge
appellate panel. ‘‘We do so in this
case after a painstaking and
thorough review of the records
and find nothing in. it that would
accord the petitioner relief.”

The N.C. Supreme. Court de-
clined late Tuesday to hear Gard-
ner’s appeal. at
_ Robert Elliott, Gardner's attor-
ney, said in a telephone interview
that he thought prospects were
“very bad, very poor” for a stay
from the U.S. Supreme Court.

“But there's still a little bit of
hope left in me,” Elliott said. “It's
not out of the question.”

In a petition filed with the
nation's high court, Elliott argues
that the instructions given the
jury narrowed the type of mitigat-
ing factors jurors could consider.
A 1989 U.S. Supreme Court ruling
widened the scope of mitigating

factors jurors could evaluate

when weighing the death penalty,
he said. ‘

Elliott also argues that Gard-
ner’s trial lawyer failed to present
mitigating evidence during the
trial because the lawyer was
impaired by cocaine and alcohol
abuse. And if the .jurors had
known of the abuse that Gardner
received from his parents since
infancy, Elliott argues, they
would not have rendered the death
penalty.

‘Deputy Attorney General Joan
Byers said the allegations of drug
abuse by trial lawyer Bruce Fra-
ser were baseless charges that
Fraser's ex-wife made. Affidavits
filed by the trial judge, the court
reporter, the prosecutor and a
bailiff showed there was no evi-

dence that Fraser was impaired

during the trial, Byers said.

Meanwhile, the fate of a candle-
light protest remained in limbo
Wednesday as attorneys for the
N.C. Council of Churches seram-
bled to find a new protest site for
opponents of the death penalty.

"A Wake County judge upheld a i

Department of Correction deci-
sion and denied the protesters’

request to hold a vigil on a grassy .

area in front of the prison during

Gardner's execution.
The tussle over the protest vigil
could return to court today unless

- attorneys for the N.C. Civil Liber--

ties Union secure a permit from
the N.C. Agriculture Department
to gather on a site just west of the
prison.

- Steak & Ale

Morgan St.
g
< A
) anita
Dept. of (iHQ
Agtictunure 3,
} Grassy
I | knoll d
Was <n
by gern Cabarus\ Si.
BY Death penalty
Protesters supportors
wantto

hold vigil "ee

O;
The News & Obveover

Judge F. Gordon Battle of Wake
Superior Court said Wednesday
that opponents should not be
allowed on the half-acre knoll in
front of the prison, where they
have gathered for the past four
executions. Battle said that
‘though the protesters have a
constitutional right to protest, the
Correction Department's denial of
the permit “is supported by valid
concerns for prison security and
the danger of confrontation or
violence taking place on the pris-
on property.”

He said he also feared that
death penalty opponents would
clash with death penalty support-
ers. On Oct. 1, the family of one of
Gardner's victims got a permit
from the Raleigh Police Depart-
ment allowing up to 150 people to
march on the northern side of
Western Boulevard. -

Meanwhile, Gardner maintains
his own vigil on death row.

“He's accepting things as they
come, with dignity,” Elliott said.
“He's known for some time that
we don’t have a great deal of

hope.”

Gardner was convicted of the
1982 shotgun murders of Kim
Miller and Richard Adams at a
restaurant in
Winston-Salem. Prosecutors suy
Gardner killed Miller and Adams
during a six-weck crime spree —
fueled by alcohol and drugs.

Shortly after midnight Dec. 23,
1982, Gardner forced his way into
the restaurant at gunpoint and
herded Miller, 24, into the office
where Adams was working. When
Adams, 21, rose from his desk,
Gardner shot him and then shot
Miller.

“1 remember Kim Miller beg-
ging me not to shoot her,” Gard-
ner said in- a--confession. ‘But
when things came clear to me, I
was standing over the bodies of
Kim Miller und Richard Adams.
They both appeared to be dead.”

Court Denies Gardner’s Stay

Ei Attorneys would bury court
in a ‘sea of paper,’ state says |

JOURNAL STAFF AND WIRE REPORT

RALEIGH

The N.C. Supreme Court rejected John Sterling

Gardner's request for a stay of execution yester-
day.

Barring intervention by the federal courts,

’ Gardner will be executed by lethal injection Fri-

day morning at Central Prison.

Gardner was convicted in 1983 in the Killings:
of two people during a robbery the previous year
at the Steak and Ale restaurant on Stratford Road
in Winston-Salem. Since that time, his case has
wound through the state and federal courts, fol-
lowing the intricate appeals process.

Gardner's attorneys filed for a stay Friday,
arguing that Gardner's original trial attorney mis-
handled his defense. The state responded yester-
day by asking the court to reject those arguments

See GARDNER, Page 20

GARDNER

Coctinmwed From Page 13

contignenial

Attorneys for the N.C. Council of
Churches and the state chapter of
the American Civil Liberties Union
argued at a hearing yesterday that

vigils have been held before.

and accusing Gardner's attorneys “We certainly cannot let the state
of trying to ‘drown this courtina of North Carolina put someone to
sea of papertotrytohaltGardner’s death without there being some

execution.”

In a brief ruling signed by Justice

witness in opposition,” said the
Rev. Jimmy Creech of the Council

_ 1. Beverly Lake Jr., the court denied of Churches.

Gardner's motion for a stay.

The state contends that demon-

A judge will rule today in Wake _ strations at the last execution dis-
Superior Court on whether oppo- rupted prison security. ‘This is not
nents of the death penalty canhold a matter of free speech,” said
a candlelight vigil on prison prop- James Smith, an attorney with the

erty during the execution.

attorney general's office.

LA Dia Franitgsatam VWsurme (

Ia [2 [or


Decision lik

By PAMELA BABCOCK

Staff writer

RALEIGH — A Wake Superior
Court judge is expected to decide
today whether death penalty op-
ponents can hold:a_ traditional
candlelight vigil outside Central
Prison durlng the 2 a.m. execution

Friday of convicted killer John

Gardner.

After hearing arguments from
lawyers Tuesday afternoon,
Judge F. Gordon Battle went to
visit the site. —

A week ago, death penalty
opponents filed a suit demanding
that the state Department ol
Correction allow the vigil on a

grassy knoll in front of the prison —

off Western Boulevard. Protesters
were routinely granted permits by
he state Department of Adminis-
ration for the four executions
held at the prison since 1984.

But last month, Correction Sec-
retary Lee Bounds reversed the
policy when he denied a permit
request by the N.C. Council of
Churches. Bounds said prison offi-
cials are worried about upsetting
inmates. Some prisoners held can-
dles and one burned a sheet and
tossed it from his cell during the
state's last execution in October
1991, correction officials said.

The council and the N.C. Civil
Liberties Union contend Bound's
denial violates constitutional

rights to free speech. On Tuesday,
Raleigh lawyer Burton Craige
said previous vigils have been
held in the ‘‘most sober, dignified
manner as possible” and would

‘have a calming cffect on the

inmates. —

“There are‘no’clappers, no
chants, ‘simply quiet conversation
and prayer,’ Craige told the

court. :
Lawyers also questioned why

the state made no effort to block a

ely today on prison vigil

city permit issued Oct. 1 by the
Raleigh Police Department for a
group of 150 people who support
the death penalty. The group,
which includes the families of the
victim's, plan to march on the -
right of way of the 1300 block of
Western Boulevard, which in- —
cludes the grassy area and prison
property.

“This is flagrant viewpoint dis-

~ crimination that has forever been

prohibited,” Craige said.

High-speed rail line
may take decades

By STEVE HOAR
Stull wetter

Os meee 08 cee om com ame .

RALEIGH - The first steps
foward a highspeed rail line
linking Charlotte and Raleigh to
Washington were announced
Tuesday, but authorities say il
may be decades before the service
is running full-steana,

State and federal transportation
afficials said North Carolina and
Virginia will receive federal
pirants of $450,000 a year for five
years fo lay the groundwork for
the 478-mile line, which would also
include slaps in Richmond, Va.,

“Greensboro and possibly Durham.

When the line is completed,

rains will zip through the corri-

dar at speeds up to 125 mph, said
David Ning. director of the state
Department af Transportation's
Division af Public Transportation
and Rail. That's considerably (as.
ler than Anitrak’s Caralinian,
Which rails along at upto 7 mph
hetween Charlotte and) Greens
boro and up to 5 mph between
Greensboro and Cary,

Orlande and ‘Tampa,

M Inthe Midwest, fram Chicago
lo Detroit, Milwaukee and St.
Louis,

SM In California, from San Diego
and Las Angeles to San Francisco
and Sacramento. |.

mM Jn the Pacific Northwest, Eu
gene, Ore, lo Portland, Ore.
Seattle, Wash.. and Vancouver,
British Columbia,

The “seed money” announced
Tuesday hy state and- federal .
officials will be used by North
Carolina and Virginia lo improve
highway grade crossings between
Charlotle and Raleigh and _ be-
tween Washington and Richmoncl.
As the grade crossings are Im.
proved, trains will be able to go
much faster,

King said there are now 199
crossings on existlng rails be
Iween Charlalte and Raleigh.
“Hach ts a potential accident.” he
said,

Some crossings will get new
lights, crossing bars or bells.
Others with light automobile traf.

fize nell din altaninantal ct 1

e

Associated Press

RALEIGH — Gov. Jim Martin an-
nounced Friday he will not grant
clemency for John Gardner, who is
scheduled to be executed Oct. 23.

“After careful study and delibera-
tion, ] have decided to Jet the judg-
ment of the court stand,” Martin
said in a Jetter to Gardner's counsel.

“Accordingly, 1 will not grant the
petition for commutation of the sen-
tence or the petition for reprieve.
My prayer is that God's comfort will
be with all whose lives have been af-

fected so tragically by these events.”

Gardner, convicted in 1983 of the
murders of Kim Miller and Richard
Adams at a Steak & Ale restaurant
in Winston-Salem, has chosen to die
by lethal injection. State law gives
condemned inmates the choice of le-
tha] injection or gas.

Meanwhile, no hearing has been
set on a lawsuit by death penalty
opponents who have been denied a
permit to hold a candlelight vigil at
Central Prison during the execution,
said Burton Craige, an attorney for

the state chapter of the American
Civil. Liberties Union.

The NCCLU and the North Caro-
lina Council of Churches filed suit
Tuesday in Wake County Superior
Court seeking to overturn the denial
by the state Correction Department.

The suit contends that the denial
of a permit infringes on constitu-
tional rights to free speech.

Correction Secretary Lee Bounds
said the vigil was blocked because
earlier demonstrations were be-

Martin denies clemency for convicted killer

among Central Prison inmates.

William Simpson Jr., Jega] director
for the NCCLU, said it was a prison
lockdown that Jed to tensions and
the burning of sheets by some in-°
mates during an execution last year.

“The vigil is a solemn affair that
would have a calming effect on the
inmates,” Simpson said earlier this
week. “Central Prison is state prop-
erty, and the public has the right to
peacefully protest on state prop-
erty.”

Marshal] Dayan is one of Gard-

Gardner Denied Clemency 2stescesr:

By Ken

JOURNAL RALEIGH BUREAL

RALEIGH

Gov. James G. Martin said yesterday
that he wouldn't grant clemency to John
Sverling Gardner Jr., who is scheduled
to be executed Friday for killing two
people during a robbery at the Steak
and Ale restaurant on Stratford Road.
In 2 Jetter to Gardner's attorneys,
Martin wrote: “After careful study and
deliberation, 1 have decided to Jet the
judgment of the Court stand. According-
ly, 1 will not grant the petition for com-
mutation of the sentence or the petition
for reprieve. My prayer is that God's
comfort wil) be with al) whose lives have

been affected so tragically by these
events.”

Gardner was convicted in September
1983 of killing Kim Miller and Richard
Adams during an early morning robbery
of the Steak and Ale restaurant. His
appeals, which have wound slowly
through the state and federal courts, are
nearly exhausted.

Barring last-minute actions, Gardner
will be put to death by lethal injection in
Central Prison’s execution chamber at 2
am. Friday. His execution will be the
fifth since North Carolina reinstated the
death penalty in 1977.

See CARDNER, Page 4

Martin Won’t Stay Execution, Scheduled oa Friday

JOHN GARDNER JR: To
Cie by bethal injection.

state agency that represents indi-
‘ gent Death Row inmates.

“Il spoke with him (Gardner) this
morning,” | Dayan said. “‘He wasmi't
surprised.”

**] don’t think he’s going to geta
stay, but ] wouldn't be surprised if
he got one,” he said. “There are
serious questions here about the

: quality of his legal representation.”

Gardner's most recent appeals,

‘ including those now before the

courts, haven't talked about his
guilt or innocence.

Instead, they have focused on the
competency of his original court-
. appointed atlomney.

In court papers, Gardner claims
{ that the attorney, Broce Fraser,
“was abusing cocaine and mishan-
ded his trial by failing to bring
forward evidence about Gardner's
troubled youth that might have
persuaded a jury to spare his life.
His attorneys made this argu-
ment in a petition filed late yester-
day afternoon with the N.C. Su-
preme Court.

lieved to have prompted disruptions

“Every member of the bar should
be insulted that criminal defen-

, dants in North Carolina can be tried

for their lives by drug-abusing law-

: yers and that such representation-is
’ routinely considered effective.”

PROSECUTORS DENY that
Fraser botched things. And to date,
the courts have agreed, consistent-
ly ruling. that Fraser’s conduct
didn’t deny Gardner a fair trial.

Gardner confessed to the mur-

ders, but then recanted that confes-
sion.

Gardner still maintains his inno-
cence, Dayan said, ‘but in the legal
pleadings, we're challenging only
his representation." -

Barry McNeill, a special deputy
assistant attorney general, dis-
missed Gardner's claim. “It’s un-
questionable to us that he's the
one,”’ McNeill said. “We wouldn't
be pursuing this if there was any
question about his underlying

guilt.”

Gardner has also pleaded guilty
to murder in the death of a 72-year-
old Rowan County man ]) days

’ before the Steak and Ale killings.

McNeill said that the state
doesn't expect Gardner to be grant
ed additional stays of execution.

Gardner is one of 70 men and

five women on North Carolina's
Death Row.

- Within the next few days, he wil
be moved to the death-watch area
of Central Prison, an isolated sec-
tion of the prison where he will
spend his remaining days.

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North Carolina could mandate stricter qualify-
ing standards for appointment to these cases,
including experience in capital cases and con-
tinuing legal education in death-penalty law.
The National Legal Aid and Defender Associa-
tion and the American Bar Association have
recommended lead trial counsel have experi-
ence in nine jury trials of serious and complex
cases, includjng at least three murder cases
and one death-penalty case. Co-counsel would
have similar requirements.

Wecould increase pay for appointed lawyers
and give them the resources they need to try
cases well; investigators and expert witnesses
cost money the state has traditionally been
reluctant to pay, forcing lawyers to dig into

‘ete eB Pa
§ continued from previous page

their own pockets. The state could hire salaried

Unless a defendant or his family hires
their own attorney, all death-penalty cases
in North Carolina are tried by public de-
fenders or lawyers (two for each capital case)
appointed by the-court. (There are public
defender offices in 14 out of 100 counties.)
The qualifications for appointment are both
meager and vague: Any lawyer assigned toa
death-penalty case must have a minimum
five years experience in general practice
and some demonstration of previous crimi-
nal trial experience. There are no statutory |
standards of competence for that attorney's
performance at trial.

Pay is meager too. Appointed lawyers

_-witnesses. And, of course, the rest of their

De Be Ree Bean

and experienced public defenders to handle
every capital trials and provide them education
and resources that match those available to
prosecutors,

If John Gardner is executed on Oct. 23 he

will become the fifth person put to death by the.

state of North Carolina since 1976, the year the
U.S. Supreme Court reinstated the death pen-
alty. The lives of two of those five—Gardner
and Michael McDougall—might have been
saved by competent, committed trial attorneys.
Instead, they were represented by lawyers whose
personal and professional behaviors eventually
cost them their law licenses in North Carolina.
Two out of five.

_ Without measures to improve the quality of
counsel, the numbers could very soon become
even more alarming. There is a move in
Congress, begun by Chief Justice William
Rehnquist, to limit federal review of capital

al GETTING WHAT WE PAY FOR =

tum time sheets and expense requests over
to the trial judge, who decides the fee. UNC
law professor Rich Rosen recalls one friend
who tried a capital case, spent 400 or 500
hours on it and ended up getting paid about
$1.50 per hour. Lawyers may also incur alot
of out-of-pocket expenses, particularly when
the court underfunds investigations or expert

practice suffers while they try a capital case.
Being a defense lawyer in a capital case,
says Tye Hunter, is “like being a teacher in
the public school system: If you’re consci-
entious it’s terrible pay. If you're lazy, it’s a

good job.” i

SODA

cases—this despite studies that show federal
appellate courts find constitutional flaws in 40
to 73 percent of state death penalty cases
reviewed on the merits. The less opportunity
the courts have to review the efficacy of the trial
lawyers, the more crucial it is that those lawyers

do a good job. —

VAG TEE WE

ee:

tionally sound without guarantees that it is

“applied equitably and fairly. In the 1972

Supreme Court decision Furman vs. Georgia,

the Court temporarily abolished the death pen-

alty, finding it an arbitrary and capricious
‘\ A «

system for éxecuting people. Four years later,

the Court reinstated the death penalty when

What Jerry Paul didn’t tell his client was that he was
facing five ethical complaints filed by the N.C. State Bar—
and that the bar had suspended his license.

To make matters worse, both candidates
running for gubernatorial office in North Caro-
lina are pro-death penalty—and if their cam-
paign rhetoric and histories in office are to be
believed, neither will be inclined to grant
clemency. Without measures that would both
improve the competerice of trial lawyers and
make appellate claims of ineffective assistance
of counsel more winnable, executions may
begin take place at what one Chapel Hill
lawyer calls “a bloody clip.”*

But how likely is it that North Carolina will
pay, train and provide expensive resources to
a staff of death-penalty lawyers whose job it is
beat state prosecutors? Can we expect a state
Supreme Court that recently found someillegal
searches to be constitutionally’ viable to pay
attention to the rights of criminal defendants
charged with notorious crimes?

“This is not a case of.a few bad lawyers,”
says a Raleigh lawyer. “These are systemic
problems, issues of money and resources and
attitude. This state wants to kill people. And in

_| ways both obvious and unspoken, we're making

sure we do just that.”
The death penalty can never be constitu-

Georgia developed a two-part trial—with guilty
and penalty phases—that became the consti-
tutional model for other states. According to
the Supreme Court, this new system corrected
the issue of arbitrariness. .

And yet, in North Carolina and elsewhere,
defendants unable to hire their own lawyers
rely on the luck of the draw. Some get lawyers
who, as one lawyer put it, “know how to work
the hell out of that bifurcated trial system.”
Others are appointed defense counsel who are
too inexperienced, too overwhelmed or too
indifferent to try the penalty phase of a capital
trial. “If the Supreme Court is concerned about
arbitrariness in death cases,” says a Raleigh
lawyer, “they don’t have tolook further than the
trial lawyers themselves. You've got one guy
who's smart and fights for his client's life,
another too stoned to read his own notes.”

Should the Supreme Court decide to pay
attention to the haphazard quality of capital
trial attorneys, it might find itself faced with
another Furman us. Georgia. The new system
for executing people is no less capricious if a
defendantis arbitrarily appointed a lawyer who
won't or can’t use it. Mf

He's not alone

BYKARENLANGE

A year ago, as convicted murderer
- Michael McDougall counted down the
hours until his death by lethal injec-
tion in Central Prison, about 200 people waited
with him outside the gates.

Participants in a.N.C. Council of Churches
vigil left Pullen Memorial Baptist Church in
Raleigh about 9 p.m., and walked a mile and a
half to a grassy knoll between the north side of
Western Boulevard and a fence and concrete
culvert on the edge of the maximum-security
prison.

There they stood, some with buming candles,
until 2 a.m., the hour of McDougall’s execution.

This week another convicted murderer, John
Gardner Jr.,is scheduled todie. And, according
to Jimmy Creech, program associate with the
N.C. Council of Churches, opponents of the
death penalty want to once again gather on the
knoll, to support Gardner as a fellow human
being who ought not be left alone. But to do that
they will have to win a court order: Department
of Correction Secretary Lee Bounds has denied
the Council of Churches a permit to hold a vigil
on the knoll, which lies on prison property.

The N.C. Civil Liberties Union last week
filed a civil suit on behalf of the Council of

Churches seeking a temporary injunction to
force the department to grant the permit.
NCCLU legal director William Simpson says
the department's refusal violates the First
Amendment of the U.S. Constitution and Article
1, Section 14 of the N.C. Constitution, both of
which guarantee the right to free speech.

“There's an important reason to be on the
grounds, to be in front of the prison,” Creech
says. “This is a public witness. We have to
remind the people of North Carolina that we are
putting someone to death.”

Board of Correction spokesman Bill Poston
says death-penalty opponents can still do that.
“I don’t think the department has infringed on
anyone’s right to make a statement,” he says.
“What we have asked is that they make state-
ments somewhere other than on Central Prison
grounds.”

Bounds could not be reached for comment,
but Deputy Secretary W.L. Kautzky says the
decision not to issue a permit was based on
reports from the director of prisons and Central's
warden, who felt last year’s vigil, visible to
some inmates, created problems inside the
prison during the hours leading up to
McDougall’s execution.

Late Oct. 17 and early Oct. 18, 1991, fires
were set in the prison large enough to trigger
alarms; a burning sheet was tossed out a broken

window, according to Poston.

But NCCLU’s Simpson says the presence of
reporters and TV crews inside the prison gates
had at least as disruptive an effect as the quiet
vigil beyond the gates. Creech agrees there
would have been trouble regardless of what
was happening outside.

“The prisoners know there’s going to be an
execution,” Creech says. “It would be very
strange for them to show no reaction.”

One prison official even told him the vigil
has a calming effect, offering “assurance that
not all the world has tumed against this person
and not all the world agrees with the death
penalty,” according to Creech.

The Department of Correction has sug-
gested the Council of Churches hold the vigil
on other state property in Raleigh. South of the
knoll lies 45 feet of right-of-way for Western
Boulevard that, with a permit from the Raleigh
police, could be used for a demonstration, says
Gene Smith, assistant deputy state attorney
general.

But opponents of the death penalty have
used the knoll since the ’30s, Creech says, and
should be allowed to continue to do so. “We
feel that to accept the decision of the Depart-
ment of Correction will set a precedent,” he
says, “and we feel the Department of Correc-
tion is in error,”

GARDNER, ha Ss nl@_— f0fa3/14q2

Proprietary to the United Press International 1983
April 7, 1983, Thursday, AM cycle

SECTION: Regional News

DISTRIBUTION: North Carolina

LENGTH: 141 words

DATELINE: WINSTON-SALEM, N.C.

A district court judge ordered a psychiatric examination Thursday for a

24-year-old Lexington man charged with killing two employees at a Winston-Salem
restaurant on Dec. 23.

Judge James A. Harrell Jr. ordered the evaluation for John Sterling Gardner
during a probable cause hearing.

Harrell said he will decide next week whether to send Gardner to Dorothea Dix
Hospital in Raleigh or to Butner for the evaluation.

«&

Gardner was charged two weeks ago with killing and robbing Richard Adams, 21
of Winston-Salem and Kim Miller, 24, of Yadkinville. Both died of shotgun blasts
to their heads.

Gardner has been in jail since Feb. 10 on charges of robbing a Forsyth County
couple. He also is charged with the murder of a 72-year-old Rowan County man on
Dec, 12. Gardner and several others also face a series of charges across the
Piedmont.

Proprietary to the United Press International 1983
March 24, 1983, Thursday, AM cycle
SECTION: Regional News
DISTRIBUTION: North Carolina
=) LENGTH: 227 words
DATELINE: WINSTON-SALEM, N.C.

Authorities Thursday charged a Davidson County man with two counts of
first-degree murder and one count of armed robbery in the Dec. 23 slayings of
two Winston-Salem restaurant employees.

John Sterling Gardner, 24, was charged with robbing the Steak and Ale
Restaurant of $2,600 and shooting two restaurant employees. He was placed in the
Forsyth County Jail pending a first appearance Friday in Forsyth District
Court.

Winston-Salem Police Chief Lucien Powell, who announced the arrest, said
Gardner had been in custody since Feb. 10 on other charges.

Gardner and two other people were indicted earlier this week in Rowan County
on charges of first-degree murder, armed robbery and breaking, entering and
larceny in the Dec. 17 slaying of Eugene Shaver, 72, of Salisbury.

In Yadkin County, Gardner is charged with robbery with a deadly weapon. He
also is accused of larceny in Davidson County.

Powell said some potential evidence was recovered when Gardner was arrested,

7 but he would not say whether it was the weapon used in the slayings of Richard
Adams, 21, and Kim Miller, 24.

The bodies of Adams, an assistant manager, and Miller, a bartender, were
found by employees reporting for work. They died of shotgun blasts to their
heads.

Powell said investigators are following additional leads, but he would not

& say whether more arrests are pending.

for a new trial was rejected by
the U.S. Court of Appeals for the
Fighth Circuit on Monday, Octo-
ber 19th. Less than an hour
before his originally scheduled
execution on Tuesday, the tem-
porary reprieve came from
Justice Blackmun, who handles
emergency matters from Mis-
souri for the Supreme Court.

On Wednesday night, however,
the full court voted 6 to 3.to re-
scind the stay of execution, with
separate dissents written by Jus-
tices David H. Souter and John
Paul Stevens, as well as by
Blackmun. The execution by le-

_ thal injection went forward, and
Ricky Lee Grubbs was pro-
nounced dead at 9:35 p.m. It
was the nation’s 26th execution
in 1992, marking a 30-year
high.

* * * ek Kk

BROOKLYN, NEW YORK
OCTOBER 16 & 23, 1992

THE RANKS of an infamous
Vietnamese street gang, which
operates under the name Born
to Kill (BTK), were thinned con-
siderably as several members—
including the group’s founder —
wound up getting hit with
heavy-duty sentences for their
crimes. On Friday, October 16th,..
in Brooklyn Federal Court,
Judge Carol Bagley Amon sen-
tenced Lan Ngoc Tran, a top
lieutenant of the criminal band,
and Jimmy Nguyen, another
gang member, to life in prison .
for two separate murders, Tran
was convicted for the slaying of
Sen Ven Ta, the owner of a Chi-
natown jewelry store, on March
10, 1991; Nguyen was convicted
for the slaying of Cuong Pham,
an employee of a Chinatown pro-
duce store, during a robbery on
August 27, 1990.

Two other gang members also
received sentences on the same
day. Hoang Huy Ngo drew a
term of 15 8/3 years and Quang
Van Nguyen caught 14 years on
convictions of racketeering and
robbery. A fifth member of the
group walked away with five

10 Inside Detective

f _
_ t Aa}. Q.

years’ probation.

On Friday, October 23rd, the
founder and leader of BTK, 36-
year-old David Thai, faced the

music himself for several convic--
- tions. The gang honcho received

two life sentences for conspiracy
to murder—and the murder of—
Sen Ven Ta, eight 20-year terms
for robbery, 3 years for at-
tempted bombing, and 10 years
for each of four firearms counts.
Another ranking member of the

gang, Minh Do, will be doing 18

years for robbery and extortion.
In passing sentence, Judge
Amon called the BTK gang a “‘vi-
olent, depraved group of people
who preyed on their own.’”’ 6060

* * kk ek Ok

RALEIGH,
NORTH CAROLINA
OCTOBER 23, 1992

MAINTAINING his innocence to
the last, 34-year-old John Ster-
ling Gardner, convicted of a
double murder committed a de-
cade ago, was executed by lethal
injection at the state prison. The
appeals filed by his lawyers,
based on the claim that the ju-
rors who had recommended the
death penalty had not been al-
lowed to hear about Gardner’s
abuse suffered as a child, were
exhausted on Thursday, October
eeand, with the U.S. Supreme
Court’s unanimous vote to deny

the condemned man a reprieve.
According to the case record,

it was during a six-week crime

spree in Winston-Salem 10 years

ago that 81-year-old Richard Ad- _

ams and 24-year-old Kim Miller
were slain by Gardner in a local
restaurant, After his conviction
for the two murders, Gardner
pled guilty to a third slaying
committed in the same spree.

Lethal needle for John Gardner.

In his final statement, Gard- _.

ner declared, ‘‘I feel deep
regret and sorrow for the vic-
tims’ families. Though they

believe that I did what I was con-..

victed of, I didnot. ButI feel /,
sorry for them—that’s all.” b
Members of the victims’ families’

were among the witnesses to the »

execution, which was the 27th
to be carried out in the nation
in 1992. .

>

BEFORE HE gave up his post in
1956, Albert Pierrepoint served
as Britain’s chief executioner for
a decade and slipped the hang-
man’s noose around the necks
of hundreds of condemned pris-
oners. Several months ago, he
reached the end of his own rope,

in a manner of speaking, when ~

the fates decreed that his life
had run the full length he’d
been allowed. His death came on

(

BRITAIN’S TOP HANGMAN ~
SLIPS INTO THE BIG SLEEP

Friday night, July 10, 1992, as »

he lay in his bed in a nursing

‘ home in Southport, a city in

northwestern England.
Pierrepoint’s uncle and father
preceded him as the nation’s

public executioners. He followed .

in their footsteps in 1946 and
kept the post until 1956. Dur-
ing his retirement, he and his
wife ran a pub in Much Hoole,
near Preston, located about 15

Li

In\

LAWYE
NOW M

Pre-trial legal

growing occup
ing to U.S. Bur
so if there is a
Thousands of |
lawyers handli
pre-trial inves!
with lawyers a:
important facts
into the courtr:

PREPAR
PROTEC
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Investigators. \
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OPPOR’
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EARNEL
TIME Wi

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would be an exc
While in trainin
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E.M. Cunninghé

WORK C
LEGAL C
As a Legal Inve:
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facts of a case. |
search for the |

witness... searc
some new evide
so that justice w

C
THE MORE YO

116 Fairfielc
Approved by the N


Proprietary to the United Press International 1983
September 23, 1983, Friday, AM cycle

SECTION: Regional News

DISTRIBUTION: North Carolina

LENGTH: 134 words

DATELINE: WINSTON-SALEM, N.C.

John Sterling Gardner became the 34th person on North Carolina’s death
row Friday when he was sentenced to die for the murders of two employees at a
Steak and Ale restaurant. ©

A jury deliberated about two hours before returning with the death penalty.
‘The jury could have sentenced Gardner to life in prison.

Gardner, 25, of Davidson County, was convicted Thursday of killing Kim
Miller, 24, of Yadkin County and Richard Adams, 21, of Winston-Salem, Dec. 23,
1982 during a robbery.

Gardner maintained he was at a truck stop on Interstate 85 in Davidson County
at the time of the slayings.

District Attorney Donald K. Tisdale said in closing statements that other
people probably were involved in the shootings along with Gardner but Tisdale
said the state did not have evidence against anyone else.

Proprietary to the United Press International 1983
April 14, 1983, Thursday, AM cycle
SECTION: Regional News
DISTRIBUTION: North Carolina
LENGTH: 120 words
DATELINE: WINSTON-SALEM, N.C.

A Lexington man charged with killing two people at a Steak and Ale
restaurant in Winston-Salem was ordered sent to Central Prison Thursday for a
psychiatric evaluation.

John Sterling Gardner, 24, is accused of killing Richard Adams of
Winston-Salem and Kim Miller of Yadkinville Dec. 23, 1983 during a robbery.

The psychiatric evaluation was ordered by Forsyth County District Judge David
Tanis.

Gardner was arrested Feb. 10 in Albemarle in connection with the robbery of a
Forsyth County couple. Murder and robbery charges stemming from the Steak and
Ale deaths were filed against him March 24.

Gardner and two other men are charged with murder in the Dec. 12, 1982
shooting death of an elderly Rowan County man.

fear
ses an as
Bee and Men 6 four days before, soo | : i
Nel : *." ‘qnpeal, for Jan. 6, four days betors. Ni ‘The Associated Pres:
fe ‘gcheduled execution. © . st bic hea a i
“ hardner, 38, is scheduled to ‘die WINSTON-SALEM — A fede: 7 : ia,
; elas shea : _ e
ee ale restaurant in De to delay the execution of John Stari e Gurdocr aid te seta
' a Oba ‘eciie Monday to deny execution, appeal for. Jan. 6, tour days before his scheduled
; ny, mae. ardner, 33, is scheduled to di Ni
ane han bork, ps dere i eS at the Steak and Ale Sastartant in i ypordeserey a
oe “ang Gardner’s defense attorneys. =| hss ti of ae ey i deny Gardner's request for a stay of
_.. °° What it did was put us on a very ‘ oth prosecutors and Gardner’
nay yeti Mh gi a ore work to : - at a. ietan iy hati nm ac ate
‘ts docin very little time,” defense at- - A ce, what.it did was st.
_ .torney Robert M. Elliott said. “In 2. track. We have a lot of work to doin see littie Hite: Mitived ei
sour view, that was uncalled for, giv- =. attorney Robert M. Elliott said. ‘In our view ‘that was af :
ag eee te ie erg eee the eravity Of the case.'” Thee
District Attorney Thomas <- iot said that the 4th U.S. Circuit Court of Appe nied
aor ae — 30 decision was unex- the stay without prejudice, which means the ate ead erant
_ "pected but welcome. the stay once it hears the arguments.
Sti. vesnabegs News AOS pee - “J still have a lot of confidence in the merits of the case "he.
: Henderson Dispatch “4 ee a trict Att Th ’ pane, }
Hendersonville: Times-News orney Thomas J. Keith i isi
Br tui a niarniies expected but welcome. ee decision we cath
Jacksonville News ae aie appeals ure twice have rejected Gardner's re-.
Kannapolis Independent r review 0. case. Tw : PENG Soke BY
Ceuartions ean aria been denied. 0 sets obappenls na state. ey hae
portale | is latest motion for appeal cont : ae
i aeneeelge 5 ae : ther ight to a fair trial. id _ Garden infos Genee
Monroe: Enquirer-Journal .
Morganton News-Herald ‘
Mount Airy News . : ;
ew Bern: Sun-Journ , HERALD, SANFORD, N.C., ‘
settee “epee om oa Bo kw _ = bi se nhl NOV eer Reh 1991 i

Raleigh: News & Observer

Court Declines to Delay Execution
oe Gardner Will Get Hearing on His Appeal in 2 Steak and Ale Killings a

_ because stays have ustilly been grated routinely!) guess the:
inessage here is thit nothing is autoriatic anynjore,” he said.

es ny ‘By Johu Downey

7 yQURWAL REFORMER 2 | |

ee ee ees ardact has declined to delay, the execution: District Attorney Thomas Te Keith agreed that the decision > 7)

+ afJohn Sterling Gardner and has seta hearing on his appeal for was unexpected, though he welcoiwed il. sean es oe hatin be
= “Byen the folks from the ANG.) auorney general's: ulffice®

-« Jan. G, jugt four days before he is scheduled to be executed,
Gardner, 33, faces-execution Jan. LO in the killing of (wo were muazed,” he said.

i workers at the Steak and Ale resturant on Sturuttord Ruad in © Elliot aud co-counsel Ellen Rt. Gelbin aud Marpliall Dayan ares
“fs December 1983.— | Pgaty Ethben “Tee ee oe r ie ta tile their brief ou the appeal Dee. 6. Proscetpurs syust file i,
“The decision Monday to.deny Gard- |. response by Dec. 20, and (he defense cian respond ba that by” th Powe:

Dec. 30.
Although Garduer has asked federal appeals courts Loreview ”

his case twice before, the request has been denied. This is his

first hearing in the federal appeals courts. TWo sats of appeals

v

ner’s request for a slay of execution
surprised both prosecutors and Gard-

“ner’s defense altoricys. ce
And, his attorney ltubert M.. Elliot

: to the stale courts have been denied.

said, it increases ‘(he pressure... “
{Tn the first instance, What il did ibe ae ee he 0s a EE EAMES
3 was pul us Ol i very fast track. We [QA Seite tae US MOST RECENT ROUND of appeals — which may be oe
- - fiave a let of work to da in very litule po “the last available to Garduer ~~ has not bee heard by ataite oe

courts: The motion contends Wut Garduer's right to a fair Uric
was violated, Ste re coal : ;
Among the allegations in the appeal, dhe defense contends he 4
that Gardner's allorney at trial abused aleahul and gocuine, © :
z * "denying Gardner. his right to the elfective agsishayce of gut epee
GARDEN attorney. Dina a eae tht sry pace
Phat lawyer, Bruce ©. Braser, wis suspended hy te N.C, Bar» he

in 1990 for failure to properly represent-clients, Phe bar sail 6 S14,
then that he was’ abusing cocaine and sdeohol: Gee ett f.
‘The appeal ssa contends Unat iat important WES apie a
Garduer has since admitted to other people that he, Witooa|ou a
involved in the shootings himself gaat, Retest. Fi %

: .time,"* he said. “tn our view, that was
uncalled for, given the pravily of the
: a SO a case. : spew re. dA ME Se oa

: |. « Eliot said that the 4th U.S. Circuit: # i

“= Court of Appeals denied .the slay with-

out prejudice — which weans that the

ive ee ~evurt could grant the.stay. once it hears the arguments,

Pas pees PE still have a lot of confidence in the merits of the case,” hes

SN / Sets, said. . Re es

Wn r “2 Elliot said he does not think that the decision can be read as
any kind of indication of how the court will decide the appeal.

Still, he said, the decision nol to delay wis unexpected

te

As

—-

el ok aS en oe Ramat pierasias eomnier ner See TIN” —— -

7

WINSTON-SALEM JOURNAL Thursday, November 21, 1991

1 ed At
mi MOD Gu


‘

t
f

A
By
4

(

'

'

j

Pea ie

rad DP

By Joe Stinebaker

’ JOURNAL REPORTER, : ee

’ . ‘8 4 Sr aie
Hi % *
: sa! 4 i
Ra brea eh feo S ie :
' ( : egy Ne
5 ' Mek ae
. : H oes .
. * :
ers Bence aa é sae (8
‘ n% ; a . ‘
¥ See Mats eile bc ! ‘ .
' ‘ r

°
‘
Le

.
elves
Pe ks
cele

s

John Sterling Gardner will no
next month. - :

t be executed
eee)

The 4th U.S. Circuit Court of Appeals issued -
an order Thursday delaying Gardner's execu-
tion until after the court can rule on his latest

. appeal. The order came just five weeks before
Gardner's scheduled execution date of Jan..].0.
Gardner, 333, was sentenced to die after. he

was convicted of killing two young employees ;
during a roblbery of the Steak and Ale re : ;
“rant: in Wityston-Salem in December. 1983;-

SlUus,

Since then, |ae has exhausted his appeals;

‘state ‘courts.! This ig his first — and possibly:
last — hearing in the federal appellate courts;:
The order’ delaying the execution was some::

2% weeks ago. |

“* thing of a surprise, given that the 4th Cirguit:
‘had refused a virtually identical request only:

~The court! reversed itself after one of Gard:
ner’s attorneys, Marshall Dayan, filed a motiou:

eres Tippeal.” errs

ra aE A ‘njore-time.-lo. brief..the: court; on: ~
wGardiyjers Lippe TREE Ne ores
+. » Dayan an Sarton other attorneys, Rob-: .
:. ert M. Elliot gn Ellen R. Gelbin, have argued: |
* that the court would not have time to give full:
consideration to.Gardner's appeal before-his:

Thien WR a
ae + eee ae a
: ° Thomasville tunes

Tryou Bulletin
Washington News
Wilmington Stat
Wilson Times
Winston S

mee

Coren te

See GARDNER, Page 18:
tee ae oe an | x ms

eotimane

‘Court delays Gar

GARDNER

*" Continued From Page 15"

execution date. Oral arguments in
the: case had been scheduled for -

Jan. 6, which would have left the .
court only four days to rule before .

Gardner's execution.

In a brief order issued Thursday,
a three-judge panel agreed, saying:
“The court has concluded that,’ in
the interests of justice, the stay
should now be granted.”

Elliot said that Gardner was re-
lieved to get the news that his exe-
cution had been stayed. Elliot said
that, as the execution date got clos-
er, he and Gardner's other attor-
neys were preparing to apply to the
governor for clemency.

Gardner's attorneys are busing
his latest appeal on an argument.
that was not made in his appeals to.,
the state courts: That his first attor-”
ney, Bruce C. Fraser, abused alco-
hol and cocaine at the time he rep- -
resented Gardner at trial.

Fraser was suspended by the .
N.C. Bar in 1990 for fuiling to prop- :
erly represent his clients. The bar :
suid at the time that Fraser had -
been abusing alcohol and cocaine..

Gardner's appeal also argues:
thut an important witness against .
Gardner has since adinitted that he
was involved in the shooting.

In a related order issued Thurs- .
day, the court ulso postponed the
dates for filings and arguments in
the case. Under the new timetable,
briefs from the defense are due at
the court on Dec. 17. A response
from prosecutors is due Jan. 7, and
any reply from Gardner's attorneys .
is due Jan. 17, *

The case is scheduled to be heard
by the 4th Circuit the first week of
February. -

dner execution

[o

Winstos Salen Sentinel

ay

THE ASSOCIATED PRESS

WINSTON-SALEM (AP) — John
. December 1983, Since then, he has

‘exhausted his appeals in, state:
courts: “°° ha

Sterling Gardner ‘will not be ex-
-ecuted next month after the 4th
U.S. Circuit Court ‘of Appeals
‘issued an order delaying the exe-
cution, on

The order delayed Gardner's
‘execution until the court can rule

on his latest appeal. The order
came five weeks before Gardner's

’ scheduled execution date of Jan.

~10. .

Gardner, 33, was sentenced to
die after he was convicted of kill-

ing two young employees during a
robbery of the Steak and Ale res-
taurant in Winston-Salem in

This is his first hearing in the
federal appellate courts.

The 4th Circuit had refused a

virtually identical request only 2%
weeks ago. '

The court. reversed itself after
one of Gardner’s attorneys, Mar-
shall Dayan, filed a motion asking
for more time to brief the court on
Gardner’s appeal. :

_

. " K Greetiville Rotator ;
° endarson Oteparcts

Hendersonville: Times News
Hickory Record

High Point Enterprise
Jacksonville News
Kannapolis Independent
Kinston Free Press

Lenow News Topic
Lexington Dispatch
Lumberton: Robesonian
Monroe: Enquirer Journal
Morganton News Hecald
Mount Airy News

New Bern. Sun Journal
Newton: Observer N E
Raleigh: News & Obvserver

WINSTON-SALEM — A federal .

Appeals Court Won't ’ : :
Delay Gardner Death . «:

t

appeals court has refused todelay °

_the execution of John Sterling
Gardner and has set a hearing on~:

‘his appeal for Jan. 6, four days

before his scheduled execution. ~.

Gardner, 33, faces execullon

Jan. 10 in the killing of two work-*

_ ers at the Steak and Ale restaur-
ant in December 1983... :
AshevilleTimes
Burlington: Times-News 2 ks :
Chapel Hill Newspaper meena ®

Charlotte News
Charlotte Observer

Co rd Tribune
Ounn R

Ourham Heraid

et
. 7

‘
i,
rae i '

Appeals court

delays execution

meneame”
WINSTON-SALEM (AP) —

~ John Sterling’ Gardner will not

: be executed next month after

suly

' five weeks before Gardner’s
: scheduled execution date of Jan. »

’. the 4th U.S. Circuit Court of ~

Appeals issued an order delay- ;

ing the execution.
. The order, issued Thursday, -
delayed Gardner's execution un- |

*

til the court canrule onhis =. |

latest appeal. The order came -

10.
Gardner, 33, was sentenced
to die after he was convicted of

killing two young employees

\

thea

£ tion D
Execution Delayed

" ‘The Associated Press *'

v cot ate de yeah
: :

John Sterling Gardner will not:

' be executed next month’ after: the:
- 4th U.S, Circuit Court of Appeals‘:

issued an order delaying the execu-'*
Gai 4 oe

Vii -° aides

" The order, ‘issued Thursday, de>:
layed Mr. Gardner's execution‘until -:
the court can rule on his latest:!
appeal, The order came five weeks !
before Mr. Gardner's ‘scheduled
execution date of Jan.10. 0°48. !
Mr. Gardner, 33, was sentenced ‘-
to die after he: was convicted: of:
killing two young employees during’
a robbery of the Steak and Ale,

_ restaurant in Winston-Salem ‘ip

December 1983, Since then, he has

Ourham Sun Pee eet
Eden News oe. ;
Elizabeth City Advance apes
Fayetteville Observer i arr ae
Fayetteville Times Me Be Oe
Forest City: Courier
Gastonia Gazette
Goldsboro: News-Argus

Nod 24, 1

Aepuns: ; *ssalig se14 Aneg vey

|. 24% weeks ago.

~ L66L ‘8 Jaquiesag.

‘. during a robbery of the Steak
and Ale restaurant in Winston-
Salem in December 1983. Since -
then, he has exhausted his ap- -
peals in state ‘courts.
- This is his first hearing in the
federal appellate courts. ~
The 4th Circuit had refused a
;. Virtually identical request only .

- The court reversed itself after
one.of Gardner's attorneys, :
Marshall Dayan, filed a motion

exhausted his” appeals in state
courts. : " *
This is his- first hearing jn ‘the
federal appellate courts. : ' ‘ mt 4
' The 4th Circuit had refused a.
| virtually identical request only 24:
, - weeks ago. 6%). ': oa
2 ns, The court reversed itself, after
one of Mr. Gardner’s lawyers,.

Marshall Dayan, filed a motion,
asking for more'time to brief the ’
court on Mr. Gardner’s appeal.: 4.4: :. |

cea one Lisdies eed 4

Téa] @ Joquiaveg Tepung SHMIL WAAWASHO TTUASLUGAVA

o. fbcbead tt

asking for more time to brief

the court on Gardner’s appeal.
Dayan and Gardner's other

attorneys, Robert M. Elliot and

Ellen R. Gelgin, have argued

that the court would not have

time to give full consideration to

Gardner’s appeal before his ex-

etution date. Oral arguments in —

the case had been scheduled for _

Jan. 6.

,
anise as

eR Ogg a A

cution delayed |

es :
PER. er at

We THE ASSOCIATED PRESS © 3 te hs. oe :
wef: . WINSTON-SALEM — John Sterling Gardner will
- {not bé executed next month after the 4th U.S. Circuit
_feCourt of Appeals issued an order delaying the
= Lexecution, Ber Ge ak ee ee ee
i> The: order, issued Thursday, delayed Gardner's
, ieexecution until the court can rule on his latest appeal.
> *¢phe order came, five weeks before Gardner's
tr-scheduled execution date of Jan, 10.
 Se.Gardner, 33, was sentenced to die after he was
'Gonvicted of killing two young employees during a
_ &pobbery of the Steak and Ale restaurant in Winston-

44Salem-‘in December’ 1983. Since then, he has

+ 4j,exhausted his appeals-jn state courts.
Cais This is his first hearing in the federal appellate
SS eourtse fe peck te
wy Gardner's attorneys are basing his latest appeal on
~ yy | argument that was not made in his appeals to the
». “hgtate courts: that his first attorney, Bruce C. Fraser,
_< Zabused ‘alcohol “and‘,cocaine at the time. he
> Aagepresented Gardner at trial. iE
a. ety Fraser was suspended by the N.C. Bar in 1990 for

“i$. filing to represent his clients properly. The bar said
> ¢pgt the time that Fraser had been abusing alcohol and

* crgocaine. -’ BRE Ue mae
“[v.Gardner’s appeal’ also argues that an important
“st witness against ,

-jiwas ‘involved in.the shooting: .00.000 2 2...

F So lay bow
1 oad Co Journal

Gardner has since admitted that he

and Celia Glasgow, 28, were arrested Nov. 27, 1990,
and charged with manufacturing cocaine and
possessing cocaine with intent to sell. Each was

released on $2,000 bond. ;
The charges were dismissed earlier this year after |

a drug informant who helped in the cases was ;
accused of tampering with the evidence. ;
Kevin Williams was indicted by a Guilford County -
grand jury in August on charges of altering or.
stealing evidence in eight undercover drug buys from —
Jan uary through November of 1990.
Williams, a Greensboro resident, is accused of
skimming cocaine from some of his undercover drug
buys..To mask his crime, police say, Williams
replaced what he took with a headache remedy. —
Since then, Guilford. prosecutors have dropped
about 200: criminal cases that Williams helped
investigate. About 40 cases against a dozen defen- «
dants in Rockingham County have been dismissed. ,
The lawsuit against the city of Eden, police chief '
Gary Benthin and three Eden detectives claims that .
police testified before the Rockingham County grand.

-

‘ jury on Nov. 13 and obtained an indictment against

the couple before filing charges.

+
Mee wee 8,


os courts.

ere rie ott a
a ahs
eared
ee next. ‘month after

ke Cx
Hs

“the si

“execution. Beene: ee SF ee eS aT)
«. The’ order,» reoued. ‘Thursday, ;
aah Gardner’s execution until -
the court can rule on his latest ap-
peal. The. order came five. weeks
AL before Gardner's scheduled EXECUr’
tion date of Jan, 10.0
‘Gardner, 33, was fees cad to’:
die after he was convicted of kill-. ;
. ing two young employees. during a °
Mh igs of the Steak andAle
restaurant in .Winston-Salem. in
~ December 1983. Since then, he has”
“exhausted - his SPER in, state. .:

e

- ‘eta.

be. dine eda ne swab bad. ult 3! winpence et abe. ‘

en

Delay ordered

en: execution

| WINSTON-SALEM~
+: (Sterling Gardner. will; not be ex-

a Mate

Oe yohn

Ee Jecuted next month: ‘after the 4th -.

“ecution. - ai
4 i ‘The order, .

~1SULS. Circuit Court of: ‘Appeals is- .
_fjsued an. order delaying. the: ex: ;

‘issued . “Thursday: he

“tT idélayed - Gardner's.” ‘execution: :“

“until ithe. court’ can ‘rule on his’
= jatest: ‘appeal. .The* order came. :
‘ive. weeks before Gardner's *

i foheduled execution date of Jan.’

ne: ‘two young employees during

Si

neo

b sen sgurine ne

Henderson Dispatch
endersonv
Hickory Need eee
High Point Enterprise

ack sonville News

annap ndependent
Kinston Free Press
Lenoir News Topic
Lexington Dispatch
Lumberton: Robesonian
Monroe: Enquirer. Journal
Morganton News-Herald
Mount Airy News
New Bern: Sun. Journal
Newton: Observer NE Pass
Raleigh: News & Obserye”

DES Gi \.

Siesta cnt

Mis. Jute eg AS s

uf Gardner, 33, was ‘sentenced to aa
‘ die after he was convicted of kill-

a,robbery‘.of the Steak and Ale.
- {restaurant'.in Winston-Salem -jn‘’.”:
December 1983, Since: then, ne Be

i i The : anton had ta
tape 4 yi identical request only 2% :
S$. ago. | ‘anaes

court

cue aC fours
I Bayan,

ine Varia Waray Yer pa We
,

reversed fiself matter
er’ s ‘attorneys, “Mar-)
5 a motion ise :

—

a ny

'?< SVINSTON-SALEM (AP) =A.
. federal: appeals court has refused. to:

3 Gardner and has set a hearing an his

# his scheduled execution. ae
© Gardner, 33, faces’ exeeution Jan:

- 10: in the killing of two workers @
“the Steak and Ale. restaurant,

December: W983.
The. decision: Monday to den

tue it increases the pressure..®

shave a lot of work to do in very. Jittl
“: time," he’ said,: In our: view, :$ha
Si was uncalled. for,
of the case.”

execution of Gardner ©

“delay the execution of John Sterling - i Shay
\” OY still have a.lot of confidence i in: a
“appeal for Jan, 6, four days, before

ne
Vege
oe

Gardner's request fora stay of. eke. %
jon “* been denied, This is his first hear-. a

rt Two sets of appeals: to- the. af

2°-In the first instance, what it did
“was put us'on a very fast track, We” contends Gardner's right to af

| Elliot said that the 4th U.S. Cire
poeult: Court, of f Appeals senles, Me i

Pee Sate

[Court refuses to delay

whee

ye stay without: prejudice ue ny
* means that the court could grant the :

once it hears. Tike arguments. »

- the merits of the'case,” he said.
District Attorney: -Thomas J. ‘
Keith agreed that the decision Was.
unexpected, hough he: welcomed: x

eed boas a
gee, i ‘ Ret

; "Although Gardner: ‘has: ‘asked’ A:
« federal appeals courts to review his * n
* case twice before,, the request. has ©

=
SS

“ing in the federal appeals courts

» courts have been denied,
His latest. motion for. appea

“ trial was violated:

“Among the eiiegatlons in shed

given | the gravity. appeal; the defense. ‘contends:

Gardner was denied. his nee to the »:
effective asslatanes of an atten

is He eres | Reale 7 (eA ae

“Greenville ‘Reflector
Henderson Dispatch
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Nov 21, 46Y

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4

saasaserioncighatansimnsies

$39 N.C.

213 N.C. 355
STIMSON et al. v. PHIFER.
No. 382.

Supreme Court of North Carolina.
April 13, 1938.

!. Executors and administrators €=335

A judgment creditor of an heir or dev-
isée is, under proper allegations, entitled to
be heard in proceeding against decedent's
land for assets to pay debts of decedent.

2. Executors and administrators €=339

Evidence held to sustain judgment order-
ing land of decedent to be sold to pay debts
and costs of administration, as against judg-
ment creditor of a devisee under will-of de
cedent, in view of lack of evidence to sup-
port allegations of fraud and collusion,

——__.>-__—.

Appeal from Superior Court, Iredell
County; J. A. Rousseau, Judge.

Proceeding by Ben. A. Stimson and oth-
ers against A. G. Phifer for a license to
sell land of deceased in order to make as-
sets to pay debts and costs of. administra-
tion. From a judgment ordering the land

- to be sold, the defendant appeals.

No error.”

Proceeding against land of decedent for
assets.

The executor and trustee of the estate
of W. J. Stimson, deceased, brings this
proceeding by petition duly filed before the

. clerk of the superior court of Iredell coun-

ty for license to sell land of decedent in
order to make assets to pay debts and costs
of administration.

The defendant is made a party because
he is a judgment creditor of the petition-
er, individually, who is one of the devisees
under the will of the deceased.

From judgment ordering land to be sold,
the defendant appeals, assigning errors.

Lewis & Lewis, of Statesville, for ap-
pellant.

Scott & Collier and Land & Sowers, all
of Statesville, for appellees.

STACY, Chief Justice.

[1,2] Whether judgment creditor of
heir or devisee is necessary or proper par-
ty to proceeding against decedent's land
for asscts is not before us for decision.
See Linker v. Linker, N.C., 196 S.E. 329,
decided herewith; Battle yv.-Duncan, 90

196 SOUTH EASTERN REPORTER

N.C. 546; Byrd v. Byrd, 117 N.C. 523, 23
S.E. 324. Conceding that, upon proper al-
legations, such judgment creditor is pres-
ently entitled to be heard, Wadford- vy.
Davis, 192 N.C. 484, 135 S.E. 353, never-
theless it appears that here he has offcred
no evidence to support his allegations of
fraud or collusion, and his exceptive as-
signments of error point only to matters
available to a coheir or codevisee. “Finger
v. Finger, 64 N.C. 183.

The record as. presented requires no dis-
turbance of the judgment.

No error,

\

213 N.C. 428
STATE v. OUTLAW et al.

No. 363.

Supreme Court of North Carolina.
April 13, 1938.

1. Criminal law €=1130(4)

An appeal which has been docketed will
be dismissed for failure to file brief with the
clerk of the Supreme Court by 12 o’clock
noon on the second Saturday preceding the
call of the district from which the appeal
is taken or at any time subsequent thereto.
Rules of Practice in the Supreme Court, rule
28.

2. Criminal law C=>1130(4)

The record in a capital case was exam-
ined for error, notwithstanding appeal was
subject to dismissal for failure to file briefs.

————»—__—

Appeal from Superior Court, Duplin
County; H. A. Grady, Judge.

Sylvester Outlaw, Apsom Outlaw, and
Lonnie Gardner were convicted of rape,
and they appeal.

Appeal dismissed.

A. A. F. Sceawell, Atty. Gen., and Harry
McMullan and E. C. Willis, Assts. Atty.
Gen., for the State.

R. C. Wells and Norwood B. Boney, both
of Kenansville, and Robert L. West, of Wat-
saw, for Sylvester Outlaw et al.

PER CURIAM.

Defendants were charged in the bill of
indictment with rape. The jury returned

bs
Pa
&

BROWN v.

BROWN N.C. 333

196 S.E.

a verdict of guilty of the felony of rape
as to cach of the defendants, and there-
upon sentence of death was pronounced
as to each of the defendants. The defend-
ants docketed their appeal, but did not
file brief with the clerk of this court by
12 o'clock noon on the second Saturday pre-
ceding the ¢all of the Sixth district, or at
any time subsequent thereto.

[1,2] The Attorney General’ moves to

dismiss the appeal. This motion must be
allowed. Rule 28 of Rules of Practice

-in the Supreme Court, 200 N.C. 831, 832.

However, according to the usual custom
of this court in capital cases, we have
examined the record to sce if any error
appears. In the record we find no error,
and the judgment is affirmed.

Appeal is dismissed.

213 N.C. 347
BROWN v. BROWN.
No. 384.

Supreme Court of North Carolina,
April 13, 1938.

1. Actlon €=5

An action will not lie when a plaintiff
must base his claim, in whole or in part,
on a violation by himself of the criminal
Jaws of the state.

2. Constitutional law €=70(3)

All questions of public policy are for
the deterinination of the Legislature and not
for the courts.

3. Constitutional law €=48

lt will not be assumed by courts that
any statute enacted by the Legislature was
intended to override or depart from prin-
ciples of public policy founded on good mor-
als unless the language of the statute clear-
ly and unequivocally indicates such an in-
tent.

4. Constitutional law C48

The courts will not impute to the Leg-
islnture an intent that would be in direct
conflict with the purposes for which courts
are created, or would be violative of sound
Public policy, or would lead to injustice in

the absence of a direct declaration to that
effect in clear language.

5. Constitutional law C48

The courts will assume, whenever per-
missible, that the Legislature intended its
acts to be consonant with, and not violative
of, existing public policy and good morals.

6. Statutes €=170

Where a statute is repealed and all or
some of its provisions are at the same time
re-enacted, the re-enactment neutralizes the
repeal, and the provisions of the repealed act,
which are those re-enacted, continue in force
without interruption, so that all rights and
liabilities that have accrued thereunder are
preseryed and may be enforced.

7. Statutes €=167(1)

When the revised and consolidated act
re-enacts in the same or substantially the
same terms, the provisions of the act so re-
yisod and consolidated, the revision and con-
solidation are taken to be a continuation of
the former act, although the former act may
be specially repealed by the revised and con-
solidated act, and all rights and liabilities
under the former act are preserved and may
be enforced.

8. Statutes €—22534

Where the terms used in a statute have
acquired a settled meaning through judicial
interpretation, and the same terms are used
in a subsequent statute upon the same sub-
ject matter, they are to be understocel in
the same sense unless by qualifying or ex-
planatory addition the contrary intent ap-
pears,

9. Statutes 22534

Where terms used in a statute have ac-
quired a_ settled meaning through judicial
interpretation, and the same terms are used
in a subsequent statute, it: is presumed that
the Legislature in passing the later law knew
what the judicial construction was which had
been given to the words of the prior re
enactment.

10. Divorce C=38'/2

A suit for divorce instituted under stat-
ute authorizing divorce when there has been
a separation of husband and wife for two
years and plaintiff has been a resident for
one year could not be maintained by husband
where he had beer convieted of the unlaw-
ful abandonment of his wife and children,
Pub.Laws 1937, ¢. 100.

Suesdy ‘mV¥IInO SepTuueyT SuaNadUvO

€6t £62 Trady ue (Aqunep urtdm) aSoNn

r puerto
‘M¥ILNO pue

os

*9C6T SLT

edez woz *xtudse ‘syoertq Saeqseat4s


ee bch canine sac td
himse® on the |trap jrithont| hesita-~
tion. {i Veep |
After & few minutes spent id prayer
| with Father Burns, Freem n | ad-
dressed the ..¢

crowd | t at, pressed
around him in he | narro

mI

the corridor. He spoke ‘ine ' defiant
tone and in languag that was
almost blasphemous.’ ‘declared
that he was) innocent. 4Sta d-
ing with the rope. ‘aro d \my
neck,” he. said, sell; ‘on! hea en
to witness that! I know | ‘no hing of

this crime. Iam as innogent s J esus
Christ himself.”’ ‘He: prayed, ) |

that if he was guilty. that. i q
‘sink him in the forete depth
The woman whi chargell_ | a nw w th
this « crime, he 68. id, mistook lim 3 for
some one else, | any such: crime was

| committed. He orgave everypody i in)
the world, pray id that his. wif might:
i be| taken care hie land askec God's;
blessing on Father Burns| ‘an { alll the
people -who had stood . by hy m. and
been kind to him during his trial! He

then repeated the Lord’s ‘Prayer and |

‘|

the Creed. with. he | priest, i ais. after
| shaki-ag hands| with. the ersons'

standing around | him, and the shoes |
:had been remoye d from his feet, sa said |

| that he was ready. a eacail

we limits of ‘Bogan. |
1 county and .
: about eight years ago, when. she was.

} about seventeen years of “age.

‘| hands. employs d by the city.
moved to Georgia 0m two years
| | ALO, 1/¢
| joines jim he res

D a. no en AGTe . SLIS — se VV Cm
bad, and i

is ¢laimed that previous

to his arrest | for the assault on Mrs.

Sellers, he: | had attempted similar
crimes on colored. women. |

| Mrs. Sellers’), maiden. name was
She! was a native of Anson

came to, Wilmington

' Mr.
band, was an. old man

Sellers, her. hu

J.and was at on time one of the street

He re-

and his v fe, since t e trial, has

|
|

‘e

FPrkiMaN, stephen,

black,

|THE seca pst WN?
Ye ort {

——

»,!The execution of(Stey
for the-crime of rai ‘ite
4 tetday just before: aXe
3 ty/dail.,
f o'clock / when} '
were tinlocked
whom tickets /o of admigs
‘issued were admitted iw
ing. portals, - [he] ¢:

YS
— -

sheriff's assis
two . colored}:
| physicians, ne r
ouens who were pr ‘i }
iosity. A> few ‘|mi

crowd, had enteréd’

ae and two or thtee:

tered the ‘cag whiero)
- cor fined and px
‘death. warran

ing to:and fro i
He was standin, ‘by:
and seemed | riot o e-W]
dressed in 8! Heat ‘al

sniall black book i
| Mr. Shaw had fini
death warrant) Fr
“was not guilty, Dui
pared to die an h

bedy. He map tartitag cn

ants and expt ge

_tidn.', When. his

i ‘curely; pinione
ee : ‘take ‘and mal
trap | ‘at the.

corridor. The

lt pe

mi
Stepnen Freemau 3 a sth
or nis Prime om the (

Tt lacked | en) min

Shaw, accompanied nes
O her

he

cel ded j;

spiritual, adviser, Rev. Fath

? rT] Ee

cerned than the 8 cotati

frock coat. and| fed n

y arms close:to h 8 Bi 6: Wi ;

to} bind the: p isoner,:pi
a ‘strap. voto hl sp oke f h
L

‘there would be’ Ho dey nt
‘arms: had

“te ie ,
“tab

one fed shan

hanged W

some thirty or|fc by, oh x

front of his cell ci} libte ned etly

ik

eS : eB eg
eee es oe J=M=—Q De =e :

1 Pen: an was the |
66D i Th anion’ stim

iver every |!
he had
thd would herr. |

be giv orl anity, outside the]
cage, 1] de} yutiel j *th PD ‘left ;
him with Father Barns} Re At aie b
ive misintes afterw! rds | ne:
i ‘Elder again entered t 18" leage and
- | with two colore assistants a
his,
BS :|

ilmington,

NC 7-11-1888,

sage to receive
en: directly
‘est cemetery
k, Hace shortly.

é
’

ort

Mrs) Ada Sellers, :
ian} ‘mt ne ‘ehite. |woman, liv-
: ’ Thirteenth street near.

-man who committe:

. robbery, and he was
b 4 | Jovember

term of| the’

fhe) Bite testa!

Ait ‘de ence

8, be ‘Tt wa 7; (counsel for
| the prispne hat Mrs [Betiets was
7\| a woma of. that she

| comiiu ed.
a “Gov, Bee ules tofused the |
on bit: upon an, appeal. for jonger time;

- granted: a respite until

jurt, Thos. Ww. Strange.

. |Elliott; i | being

| his counse The «trial

| . d two or. ftnree aay and every:

ite Alle effort! -Was.. m de by: mt prisoner's |

the ,

Shei | conn el and, exh wen to 8 sgoure an ac-
ia roe a quittal,. Ther were some forty wit- |
Lag Is messes © summ ned eigh een for elt

it

tn a) fear re forlthe defence..
) lle

positi ely| that Free-
jan wha — her,
mony Ww orreborated
 other.| rae uzrok ‘The
ie: vored a to ldstablish: fe

|

mn

given birth to a mblatto child

16 case f for tl e State was ably —

filty | ‘Was: matusnell by ‘the.
a eares sentenced Free-.
nt inged on Thursday, the
dof December, overr sling & mo-
n appeal’

taken! to 4 l Supreme .|

1@ |
App pinted - i op

aaa d ot Sane

last} is thé datb of execution. In the
theantinle Fre man’s nsel had
| forws rd daly tition tot eo Governor.
r. asking. that 1e sentence should be.

|

im: riso ment.:
pplication,

life

the ith “i

° | Jun || | ib * e

iy. ¥ .

i sal | ela ed to have been born in Pay-
: x) f etter le, NC

eman wad formerly, a | slave and’

C.| He: was

e chet fej hess for the |

' "Tavaiea ba but

|

2 iucjeee, 20 ubyro/19E

fi
oy

> oe

,

SSG =

7


samy Ohare marked Cc
: is

with Father

‘tone and in
that he was|

neck,’ ” he: - said,

: peace on the trap

soe & few minutes a
drésséd ‘the .. cr
thé corridor. ss
almost —_blasphe

ing with the.

‘stk him i in the |

to witness ‘that,’ | 7

Christ himself.) 6 pr red; bi

be| taken care
blessing on Fat

beén kind to hi :
then repeated t]
the Creed. with.

standing aroun

‘that he was rea

‘The woman ty d hin
this crime, he: 8 idj pet 20k /hi! ;
some one else, if an? t )
committed. He} orgave ae

fa prime wos
ody in|
Psat

shakiag hands

OnIpOSUTe :

i ;
det i res rs

the world, praye Jd that hi wif

f, jand

with t
him, | ‘and.

he oath |

e > Lord’ 8 *

:had been renloy d from: ‘his |
| a. | af ik i

Y
at pr

lor toe ae all the’!
1 stc y| (him: jand ‘

:

&] :

: cea rhadino ch Larey
itt out hesita- | ie

sounty — and

D. HIS CLUTBULEL woe
slaimed that. previous
pr the assault on Mrs.

: rad attempted similar

ored. women.

1. 3. EN maiden’ name was
| pe Sh ives a native of Anson

came to, Wilmington

} about eight years ago, when. she was.
|; (

‘about seventeen years. of age. | Mr.

‘Sellers, her! husband, was an old man

py. | ‘and was at; one|time one of thé street

da by the ‘clty. He re-
peer $0m two years

3) wife, since t e trial, has


The fficers in ‘att ndance then |
placed the black| cap “over Fr eman’s,

noose, and while this Wy 3) going on |
Revs. Conway and ‘Fennell, tiwo col-
-ored ministers st aiding near

a: hymn, which| Freeman | jad | re- |
quested several ‘days | ago, should be |
done, saying. that i ‘Wo ld) ‘‘mak

; easier” for him. | oe Re es 4 |
| Precisely at twenty-on ‘mi utes: of
|} twelve o'clock, everything |b rt
readiness, the signal wae) an and.
Deputy Sheriff ma |

lever. The trap-door fell
-and jar that shook the |
»Freeman’s body shot.dowt ynwar |
bronght up with | (a8 dde ‘jerk
and thud, and the crowd!
saad in’ horror

pa
ith/a cling
. ilding, and

oe the:

not the

in the upper cor sina of: i Ke) j sil there
came a wild wai ling cry, the :
‘the silence with but. added hy
Freemans body swun  \sli
ond. fro. . Ther was al
ic ‘mation, - of! e. pods
shoulders ‘raised ; and!
those of. » per gas hing
ily.| ‘Th.e knot of t rope |
been adjusted u der the”
slipped. around t “the | | back
neck, and ‘it was! eviden | it
failed t to do its work rop
Potter ‘and Lane, | pod:

geon Brooks, w W ©. wer e

tinct... At five | m nated
o'gloek Freeman | was, ee
dead, and two m inutes la
was lowered an placed i ak
Dr. Rotter: said: that a 2
from strangulat fon, :

neck. was nefthe broken. a
ted, -A deputy s atitt ‘pl at
on the coffin | and +, emai is
then. then taken | “imto| the: aled vi

Broke In,
Police Say

Dy Keith Lawreace

ett Geperte

The shotgun slayings are
believed to have happened af-
ter 12:22 a.m, the latest time

_ an employoe’s me card was

hed, Bullard said.

be the primary motive in the
killings right now, even
though some money was left
behind in an unlocked sale
and in desk drawers in the
office.

—~ Police said some money

was taken from the top of the
desk in the office where a
night deposit was apparently
being prepared.

The cash registers were
empty.

People have been calling
police saying they remember
seeing cars in the parking lot
early Thursday, but the de-
scriptions vary, Bullard sald.

Employees of the Kyoto
Japanese Steak House, which
is next door to Steak ana’ Ale,
worked until 2:30 a.m. Thurs-
day, but they said they did not
hear any gunshots, Bullard

sald.
Bullard also said that
lice are now waiting for filn-

ts found in the restau-
rant to be processed. Bullard

said there weren't many fine -

ints found in the office.

Miller, a bartender at

the restaurant for four years,

was found lying in the middle

of the office with a gunshot
wound in her neck.

ered by a cook at the restau-
rant who came to work about
9 a.m. Thursday.

IA-AS- Ba

*,

Police Get [felp in Vurder Case

WINSTON-SALEM — Police investigating two murders at
Steak and Ale restaurant are following tips from people claim-
ing to have seen Cars 1n the parking lot Wednesday night
Detective J G. Bullard of the Winston-Salem Police Depart-
ment said yesterday that several people have called to tell

lice about cars that were parked at the restaurant the night
Kim Miller. 24, and Richard Adams, 21. were shot.

Miss Miller, a bartender, and Adams, the assistant manager,
were found Dec. 23 by employees arriving for work about 9am.

Bullard declined to discuss results of ballistics and finger-
print tests or autopsies performed last week by the state

medical examiner's office in Chapel Hill


Murders
Still Baffle
City Police

es

Police said they are con-
tinuing to check a number of
leads in last week's murder of
two employees of the Steak
and Ale Restaurant. But so
far they have not come up
with anything.

Jack Bullard, a detective
with the Winston-Salem Ro-
lice Department, said yester-
day that restewrant employ-
ees have told police that the
victims, Kim Miller and Rich-
ard Adams, did not have any
enemies.

Miss Miller, 24, of Yadkin-
ville, and Adams, 21, of 2260
Sunderland Road, were shot
to death early Thursday-in a
smal] office at the back of the
restaurant. They were found
by employees arriving for
work, about 9 a.m.

Police still consider rob-
bery a prime motive in the
shootings. But whoever killed
Miss Miller and Adams left
behind money in an unlocked
safe and desk drawers at the
restaurant, which is at South
Stratford and Bethesda roads.

Police also have checked
whether any former restau-
rant workers had keys to the
restaurant, but that did not
turn up any clues, Bullard
said. :

Bullard said last week that
all the doors to the restaurant
were locked when Miss Miller

and Adams were killed with a

shotgun The only way some-
one could have entered the

_ building was if he had a key. _

had been let inside or had hid-
den inside the restaurant, Bul-
lard said.

Police are also trying to
find out whether there is a
connection between the shoot-
ings and an attempted rob-
bery in October at the Steak
and Ale Restaurant on South
Cherry Street.

In October, an armed man
tried to rob the restaurant,
and employees and customers
barricaded themselves in the
kitchen. An employee refused
to give the gunman money,
and he slipped out of the res-
taurant before police arrived.

So far, police have not been
able to link the attempted
robbery and last week's
shootings.

Police are continuirg to fol-
low tips from people who say
they saw cars in the parking
lot around the time the mur-
ders are believed to have oc-
curred. Bullard said the car
descriptions vary.

LW raten - Aclem OCewrnetl
IA- KHI-8Q


==

#

——,

ane : 18-inch: chain linking. his ankles would

in
se "8G

nd Senloncod m: Role

iat § “By Gary _Terpening :. Aa ara tr arcs

The man scemeed of manele 6 (wo ristaerens pan '
‘last December came to Forsyth Superior Court yesterday -:
a “(bound in leg {rons and surrounded by four — to plead .-
"guilty to robbing a Forsyth County couple in February. #3
re “4 “Standing with arms folded and foct — as far apart as the :
DS Mow, John Sterling .':
4" Gardner pleaded gullly before Judge F. Fetzer Mills .
U2" Mills sentenced Gardner to 14 years In prison and ordered:
bei ‘him to pay 61,388 as restitution to Mr, and Mrs, Kelth Poplin. i
‘see Belore he was sentenced, Gardner leaned over and whispered “)

Ҥ::
age ip his attorney that he wanted to pay the Poplins back. . .
if

ma 4. . Gardner, 23, of Davidson County, was charged with robbing |;
Heat ithe Poplins on Feb. 2. Another man charged ia na or, :
A ‘Hichard Dwight Small, pleaded guilty on a

ae , Five other people charged in the robbery are awaiting tial.
4" Richard R, Lyle, an assistant district at , told the jud
ar ry ‘that on the preon of Feb, 2, Mra. Poplin heard a knock on

if back door of her on Weal Clemmonsville Road.
aie /Two-men were standing at. the back. boos, Lyle sald, ad)

te i ;asked Mrs. Poplin for jumper cables. —

Ps Bhe called her husband to the back door, ihe sald. Whoa her's

‘si usband artived, the two men | cages pistols apd ordered the: i

tie we scours. into a. rear, bedroom.
Lyle sald that Use men org ‘Popline to lle face down
n doen.

bedroom floor, They’ several gun, yome old colne Z

Hhifaea a safe, he sald.:

s Mrs. Poplin later Mdentfie Gardner snd Sali nt the ines:

a

wha robbed her. Gardner was arrested on Feb, 10.05. -. uy
iii Lgle sald that Gardner told detectives that another man i
ae In the case, Landall Allen Taylor, had into

Hate rey: Carob. co costes, ardner’s: ‘ues ‘told i inter yy
se

cers,” Teeter said. ;

Since his arrest, Gardnemhas been charged with four armed
robberies, three cases of breaking, entering and larceny and
one theft of a car. The charges are for crimes in: Forsyth,
Rowan, Yadkin and Davidson counties.

Gardner also has been charged with three first-degree
ders.

He and two other men are charged with killing a ies
man at his home in Rowan County, and he is charged with
killing a bartender and an assistant manager during a robbery
at the Steak and Ale Restaurant on Bethesda Road in Winston-
Salem on Dec. 23. :

The bodics of Kim Miller, 24, of Yadkinville and Richard
Adams, 21, of 2260 Sunderland Road were found in an office in
the back of the restaurant. Ms. Miller had been shot once in the
neck, and Adams had been shot once in the head :

Earlier this month, state psychiatrists determined that

Gardner is competent to stand trial on those charges. His court-
appointed attorney asked for the evaluation, saying in an

- affidavit that Gardner has mental disorders resulting from

heavy drug use.
No date has been set for a trial on the murder charges.


per, co “.
-: aie ‘Senn. *

e

slemency

M@ John Gardner scheduled
to be executed next week

By Martha Yates
THE SALISBURY POST

John Sterling Gardner Jr. wil] keep his Oct.
23 date with death at the hands of a state
executioner.

Gov. Jim Martin turned
down Gardner's request for
clemency Friday.

The action marks the fina]
step toward carrying out the
execution ordered in 19839
after guilty verdicts on
murder charges were handed
down in Forsyth County Sv-
perior Court.

In a letter to Gardner's
counsel, Martin said he had Gardner
carefully reviewed materials and arguments in
connection with the inmate’s plea for clemency.

“After careful study and deliberation, I have
decided to Jet the judgement of the court stand,”
Martin said. “‘Accordingly, I will not grant the
petition for commutation of the sentence or the
petition for reprieve.

“My prayer is that God's comfort will be with
all whose lives have been affected so tragically
by these events.”’

Gardner, now 34, has had something his
victims did not have — a choice of how be would
die. He chose Jetha] injection over the gas
chamber. His execution is scheduled for 2 a.m.
Friday.

Gardner joined the state's death row inmate
population in September 1983 after he was found
guilty of the shotgun slayings of Kim Miller and
Richard Adams during a robbery at Steak and

AJe Restaurant in Winston-Salem on Dec. 2,
1982.

Rowan murder

After that tria] ended, be pleaded guilty in
December 1983 to the second-degree murder of

“a Rowan County man, Ray Shaver, who was

killed at his home after a break-in on Dec. 17,
1982, just six days before the double murder.

Shaver, 72, died on the back patio at his Clark
Road home after three people broke into his
home and attempted to take guns and a
television. Shaver, who held a handgun, was
apparently discovered hiding in a furnace closet
as the trio prepared to Jeave the home.

The robbers took Shaver’s gun and shot him
in the: head.

Shaver's wife of five years, Julianna, wanted
to watch Gardner's execution, but her request
was denied. Mrs. Shaver said Friday that she
was pleased, though, with the governor's
decision not to grant clemency.

“J think it was Jong overduve,’” Mrs. Shaver
said. ‘‘The judicia] system needs to be updated
so cases like this don’t drag on for years and
leave families in limbo with heartache and pain.
Nine years is just entirely too Jong for anyone
to have to put up with not knowing what is going
to happen.”” ;

Reinvestigated

Mrs. Shaver and her daughter, Frances
Shepard, along with Rowan-Cabarmus District
Attorney Bill Kenerly, Chief Deputy Tim Bost
and Forsyth Assistant District Attorney Vincent
Rabil, traveled to Raleigh last week to present
their facts to the governor.

Rabi] said he spent the entire week in Raleigh
going over files and talking with the governor
about the cases. He said he feels justice has
prevailed.

> See Gardner, Page 12B

Selisbucg Ps 3x7
[I [qe

Gardner’

> From Page 1B

“We completely reinvestigated
the Shaver and Steak and Ale
murders.” Rabil said Friday. ‘We
went through all files. went back to
crime scenes and discovered new
and additional evidence.

“The families of the victims
have been very cooperative. We
also interviewed eve witnesses to
show Gardner's lawyer was not
impaired and did a good job in his
defense.”

Rabi] describes Gardner as a
very cold person.

“He bragged to his associates
about raping and killing people.”
he said. ‘‘He’s a real dangerous
person. He has no remorse for
what he has done. He can talk
about killing somebody like he is
talking about driving a car or
taking out the trash.”

- Rabil has given up his seat at the
execution for a family member of
one Of the Forsyth County victims.

“All the law enforcement officers

have given up their spots for the
family members of the victims.”
he said.

“There are so many murders
going on.” he said. “It’s really
terrible. We hope that people soon
Start to get the message that you
don’t do this.”

Execution

Sixteen people wil] witness the
execution. Six wil] serve as official
witnesses. Of the remaining 10.
two will be attorneys representing
Gardner. two are members of
Gardner's family. one is his minis-
ter and five others will be media
representatives.

Bost said the ruling marked the
end of a case he has worked on for
10 years. “I am chief deputy and
have had to spend a Jot of time
recently on this case almost as an
investigator,”’ Bost said, adding he
appreciated the time Sheriff Bob
Martin allowed him to devote to
the Rowan County end of the
conference with the governor.

“I was satisfied with both courts

in this action,”” he said “I am
Satisfied with the sentences given
in Rowan and Forsyth counties and
pleased the governor has seen fit
to not block this execution.”

He said he was very impressed
with the presentation made to the
governor by Mrs. Shaver. ‘She
told the governor about her hus-
band’s life. how he was respected
in the community and the effect
his death had on his family.” Bost
said. ‘She was very touched by the
ordeals of the families of the other
victims.

“She said she felt very deeply
for the families of the people who
were murdered in Forsyth County.
that their lives were snuffed out at
such a young age.

“The thing we are the most
pleased with is that these three
families can now get on with their
lives. They will always live with
their memories. but they wil] soon
have the satisfaction of knowing
their family members who were so
tragically taken will have some
degree of justice.”

oft es svete
1d: Nemreqenernmanas a Fe"

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Ree, ke |

4 f .

4 J .

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Gi UE Re PS
pat

eve,

‘By JOSEPH NEFF

+ Staff writer 1

"RALEIGH .~':Death. penalty ‘

‘Oppanents have filed a lawsuit

‘demanding that they be.allowed to ;
Stage their traditional candlelight‘

‘vigil at Central Prison during an
execution scheduled for next
"week, 25.5005! ip

"The lawsuit, ‘filed Tuesday in
‘ Wake’ Superior™ Court, requests
:that’/a_ judge order ‘the ,state
‘Correction’ Department to allow

_ the vigil on a grassy knoll just
‘inside the entrance gate to the ©

prison: =.

- Correction” Secretary Lee ©
: Bounds refused a permit request-
ed by the-N.C. Council of Church-. -

es, The group wants to protest the

execution,‘ scheduled: for.2 a.m; :

 Oct.:23, of John Gardner, who was

convicted. of. killing : two people ,

during” a robbery in Winston-

- Salem,:.. *

The. council and the N.C. Civil

: Liberties Union contend that

_ Bounds ‘is violating constitutional
rights to free speech.

_ Bounds said he blocked the vigil

_ because prison officials are wor-

ried about: maintaining order..
"among :inmates...Some inmates ‘

held candles-and one: burned a
. Sheet dyring the state’s last exe-

*cution nearly a year ago, said Bill:

Poston, a Correction Department

spokesman. "*
There. will be no vigi} on prison
grounds “‘unless the court orders

otherwise,’! Poston said: Tuesday. .

‘To maintain proper: security

within Central Prison, the Depart-.

’ Ree
' mee « &
“4 IN 8. . the eee oe

‘ Beat: git it a t ‘6 , Fi'oa ; “i
A Pi EA a ; ar a ae iy hah ae
eet: rte ar : Uy SNe Ghee hs 134 tus

Hi Som A A ee eC gt ‘i
‘f de @- Pree RS, wer ae Mirage ay Se Bar Wf i)
i yt
a, a “ae Aenea b re me wf

FNS tea USO Ba Dayar Ber a aS

. : K ~o vee
. et ondes ie Wise Satmamed es. nin foe ad

WA A Seo Oe
E Vy

Mie hs

ore : Gents ‘

‘The vigil isa solemn’

affair that would havea -
calming effect on the. f.":

inmates... 2 ei

ae _.— William Simpson | ee
ee a: - legat director, NCCLU»

ment of Correction will restrict, .
access onto Central Prison i
.8rounds for people voicing their -
opinions about the death penalty,’’. -

Poston said. .

- William Simpson. Jr., legal di- :
rector for the NCCLU, said the :
execution and a prisonwide lock. “ds
down cause the tension, not the ie

Vigil. em US cc

“The: vigil. isa solemn affair . -
that would have a calming: effect .

on the inmates,” Simpson said. ar
“Central Prison is State property, -
and the public has the: right to’
peacef ully protest on state proper- -

ty.

on's entrance.

Protesters routinely were oe
granted protest permits by the’. be

state Department of Administra-

tion, Simpson said. < fo

oe Bae

Death penalty opponents have, :..
held vigils during executions at:
Central Prison since the 1930s, Me
Simpson ‘said.. Since. the. death’. °
penalty was reinstated in the late

. 1970s, up to 200 protesters holding
candles have stood during execu.
tions -in..a ‘Small. grassy area .:-
between the prison fence-.and ©:
Western Boulevard, near the pris- :.


Ler ae

ee

Triangle

en =

The News & Observer, Raleigh, N.C., Saturday, Oct. 17. 1992

Martin rejects cleme

By JOSEPH NEFF

Stat wrrer

RALEIGH — Gov. Jim Martin
on Friday refused clemency for
double murderer John Gardner,
who is scheduled to be executed
by Jetha) injection next Friday.

Attorneys for Gardner turned to
the state Supreme Court and the
U.S. Supreme Court to seek a Stay
of the execution. They argucd that
the Forsyth County jury would not

have voted for the death penalty
in 1983 if Gardner's sole defense
attorney had not been impaired
Guring the tria) by cocaine and
alcohol abuse.

The attorney, who has since
been disbarred and is to be tried
on drug charges, did not tel] the
jury about abuse Gardner is said
to have suffered at the hands of
his alcoholic father and mother
from infancy to young adulthood.

Robert Elliott of Winston-

Salem, one of Gardner's current
attorneys, argued in briefs filed
this week that jurors would have
Spared Gardner's life if they had
been told of that abuse.

Martin did not discuss details of
Gardner's appeal when he an-
nounced Friday that he would let
the execution proceed.

“After careful study and delib-
eration. ] have decided to Jet the
judgment of the court stand.” the
Bovernor said in a letter to Gard-
ner’s attorneys. ‘J will not trant

DOME

the petition for commutation of
the sentence or the petition for
reprieve. My prayer is that God's
comfort will be with all whose
lives have been affected so tragi-
Cally by these events.”

Jimmy Creech, a minister with -

the N.C. Council of Churches, met
with the governor Wednesday to
argue for clemency. But he said
Friday he had not been optimistic.

“He gives very careful consid-
cration on each case, but ] Jeft

feeling like all the information

ncy for double murderer

was not influencing him,” Creech .
" said. “Governor Martin-has al-

ways been clear that he thinks the
Geath penalty is @ppropriate pun-
ishment in certain crimes, and he
feels John Gardner fits in that

category.”

Gardner, now 34, was convicted é
murders of Kim

in 1983 of the
Miller and Richard Adams during
a robbery at a Steak & Ale
restaurant in Winston-Salem.
Elliott. now Gardner's Jead at-
torney, said that the original tria)

attorney; “Bruce’-Fraser,-dig- not -
tell the jury that Gardner: ‘

Mf Was tied to a-chair for extend..
ed periods while an infant. which
bowed his legs. :

M Had been in and out of foster.
Care since age 3. -

@ Was repeatedly beaten by his
father, an alcoholic. who once
fired at him with g rifle after the
1]-year-old Gardner brought
home a bad report card.

' Dome

Jones family to

The wife.
the late U.S.
are expected

$280.000 in Jeftover campaign con.

tributions
Jones

Planned to keep
for his personal]

use.

Jones’ wil) di-
rects that his unused campaign
funds — donated by politica)

See DOME, Page 3B

get
Campaign funds

committees

Jones’

that

had Jack Lewis of

clear in his

Continued from page 1B

Supporters and political action
Seeking influence in
Washington — be divided equally
among his wife. Elizabeth, his
Son. state Rep. Walter Jones Jr. of
Farmville, and his daughter. Dot-
Dec J. Slaughter of Farmville.
Campaign treasurer.
Tom Parrish of Greenville. and
the executor of his estate,
the state Court of
Appeals, say they expect that the
Campaign money will be divided
2s outlined in the will.

“He made his wishes very clear
in public statements and also very
will,” seys Parrish,
who, as treasurer, now controls
how the campaign money wil] be

“. "8° this point. J intend tn

Carry out his intentions."

Jones, who died in September,
was one of 33 departing members
ouse who were
Jaw to convert
unused campaign money to their
personal use. He was the only one
to state publicly that he Planned to
Some have said they will
donate the funds to Politica] par-
to charities, and others
have not said what their intentions

of the U.S. H
allowed under

do so.
ties or

are. .
Judge

members from

money
ers had in
Fea? *

+ eR we ewe:

used.

Jones had $298 .537

Paign fund as of June
Those Jawmakers are exempted ing to FEC records.

from 2 1979 Jaw that bars House
keeping unused
campaign funds upon retirement,
but the exemption is scheduled to
expire this year. The amount of
that could be kept was
limited to the amount the lawmak-
their Campaign ac- debts H
counts as of Nov. 20, 1989.

ing after tha -.

the Federal Election Commission.
Says there are no restrictions on
how these Campaign funds can be

“It could be used for any Jawful
purpose,” Eiland says. “It could
be given to the widow, given to his
staff, given to his family. given
back to contributors, for charita-
ble contributions, or it could be
given lo other candidates.”
in his cam.
30. accord.

Bul Parrish Seys the amount
available for Jones" Personal use
— and now for his heirs — is about

280,000. The rest will go to pay

- He says anything remain.
ros hd ”

eA 'v AWE

(®

2B: fe)

The News & Observer, Saturday, Oct. 17, 1992

Martin rejects clemency for double murderer |

By JOSEPH NEFF

Staff writer

RALEIGH — Gov. Jim Martin
on Friday refused clemency for
double murderer John Gardner,
who is scheduled to be executed

. by lethal injection next Friday. -

Attorneys for Gardner turned to
the state Supreme Court and the
U.S. Supreme Court to seek a stay

’ of the execution. They argued that
the Forsyth County jury would not
have voted for the death penalty
in 1983 if Gardner's sole defense
attorney had not been impaired

during the trial by cocaine and
alcohol abuse.
The attorney, who has since

been disbarred and is to be tried’

on drug charges, did not tell the
jury about abuse Gardner is said
to have suffered at the hands of
his alcoholic father and mother
from infancy to young adulthood.

Robert Elliott of Winston-
Salem, one of Gardner’s current
attorneys, argued in briefs filed
this week that jurors would have
spared Gardner's life if they had
been told of that abuse.

Martin did not discuss details of
Gardner's appeal when he an-

nounced Friday that he would let
the execution proceed.

““After careful study and delib-
eration, I have decided to let the
judgment of the court stand,” the
governor Said in a letter to Gard-
ner’s attorneys. ‘I will not grant
the petition for commutation of
the sentence or the petition for
reprieve. My prayer is that God's
comfort will be with all whose
lives have been affected so tragi-
cally by these events.”

Jimmy Creech, a minister with
the N.C. Council of Churches, met
with the governor Wednesday to
argue for clemency. But he said

Friday he had not been optimistic.

“‘He gives very careful consid-
eration on each case, but I left
feeling like all the information
was not influencing him,” Creech
said. ‘“‘Governor Martin has _al-
ways been clear that he thinks the
death penalty is appropriate pun-
ishment in certain crimes, and he
feels John Gardner fits in that
category.”

Gardner, now 34, was convicted
in 1983 of the murders of Kim
Miller and Richard Adams during
a robbery at a Steak & Ale
restaurant in Winston-Salem. .

Elliott, now Gardner’s lead at-

‘torney, said that the original trial

attorney, Bruce Fraser, did not
tell the jury that Gardner:

@ Was tied to a chair for extend-

ed periods while an infant, which
bowed his legs.

@ Had been in and out of foster
care since age 3.

M@ Was repeatedly beaten by his
father, an alcoholic, who once ~
fired at him with a rifle after the
1l-year-old Gardner brought.
home a bad report card.


NORTH CAROLINA OCTOBER 23, 1992 LETHAL INJECTION OR GAS CHAMBER

JOHN STERLING GARDNER, JR., (White), age 34, has been on death row since September 1983. He was
convicted of the robbery/murder of a white male and female. As a child, John Gardner was a victim of
neglect, as well as emotional and physical abuse. At trial, he was represented by an attorney who was

seriously addicted to alcohol and cocaine. .
Gardner's trial counsel is no longer a member of the bar, having received a three-year suspension

from the practice of law for various acts of misconduct and negligence in connection with his
representation of his clients. The trial counsel did next to nothing to prepare for this trial. As a
consequence the jury never heard critical evidence about the crime and about Gardner’s background.
The jury never heard that John Gardner was born to alcoholic parents, and that his mother

abandoned him early in life. ‘The jury never knew that as a child, he was tied to a chair for long periods
of time, resulting in his legs nearly atrophying, that he was once shot at by his father with a 30-30 rifle
because he brought home a bad report card, that he was routinely and brutally beaten and terrorized
by his father, that he was emotionally disturbed and in need of treatment, and that he was repeatedly
removed from his father’s care and placed in foster homes, but inexplicably returned to experience this
treatment over and over again.
TAKE ACTION, CONTACT: Governor Jim Martin

State Capitol

Capitol Square

Raleigh NC 27601-2905

(919) 733-9490 FAX (919) 733-2120

ADDITIONAL ACTION: HELP GATHER SIGNATURES AGAINST JOHN STERLING GARDNER'S EXECUTION. ASK
FRIENDS, FAMILY, CHURCH MEMBERS AND CO-WORKERS TO SIGN THE ENCLOSED PETITION. KINDLY RETURN
THE FILLED PETITION(S) TO THE NCADP NO LATER THAN OCTOBER 15, 1992, SO THAT WE CAN DELIVER THEM

TO GOVERNOR MARTIN.

ILLINOIS **CONSENSUAL** NOVEMBER 11, 1992 LETHAL INJECTION.
LLOYD WAYNE HAMPTON, (White), age 38, has been on death row since July 1990. He was convicted of
the robbery/murder of an elderly white male. Hampton pled guilty and waived his right to a jury trial and
was sentenced by the judge. Hampton's direct appeal was affirmed in May 1992. Hampton promptly
wrote the court stating, "Further appeals would be frivolous and meritless, and a severe waste of the time
and efforts of an already extremely overburdened court system.” He went on to ask that further appeals
be barred, “whether they may be filed by attorneys, family, friends, clergy, prisoners or any other persons
or groups against capital punishment."

> > > > > > > >< < < < <, < < <
TEXAS UPDATE--In an effort to at least inform the Execution Alert Network of Texas execution dates, a list
of those on the Texas Department of Corrections execution list follows. At this point the seriousness of the
following execution dates is unknown. They are listed for informational purposes only.

9/17/92 David Long 9/24/92 Ricardo Guerra
9/17/92 lrineo Montoya 10/08/92 Bernard Amos
9/18/92 Cornelius Goss 12/23/92 Joseph Faulder
9/18/92 Karl Hammond 10/30/92 Delma Banks Jr.
9/21/92 Warren Bridge 11/19/92 Jeffery Griffin
9/22/92 James Demouchette 1/8/93 William Kitchens
9/22/92 Andre Lewis

IN MEMORIUM

Edward Dean Kennedy, Florida, was executed July 21, 1992.

Edward Fitzgerald, Virginia, was executed July 23, 1992.

William Andrews, Utah, was executed July 30, 1992.

Curtis Lee Johnson, Texas, was executed August 11, 1992. .

Harold "Wili" Otey, Nebraska received an indefinite stay.

There have been 180 executions in the United States since the reinstatement of the death penalty in 1976.

NCADP, 1325 G St. NW LL-B, Washington DC 20005 (202) 347-2411

Governor Jim Martin
State Capitol

Capitol Square
Raleigh, NC 27601-2905

Dear Governor Martin:

I am extremely concerned about the scheduled execution of John Sterling
Gardner, Jr. I am convinced that his difficult background and the apparent
negligence of his attorney merit further consideration.

The judicial system is designed to provide a fair trial to all people.
Gardner's attorney was reportedly suffering from a drug and alcohol
addiction during the trial and has since been disbarred for three years
because of misconduct and negligence in representing clients. Critical
evidence was not presented during the trial that could have made a
significant difference to the jury's decision. It will be an outrage for
Gardner to die because of one bad lawyer.

I also believe that Gardner's abusive background deserves further
attention. He was routinely physically and mentally abused by his father.
This ultimately caused him to be emotionally disturbed and in deed of

psychological treatment.

I urge you to give deeper thought to the circumstances surrounding this
case.

Sincerely,

N
E
W
S
&
C
0
m
Mm
E
N
T

BY MELINDA RULEY

y the time you read this John Sterling Gardner
Jr. may already be dead. A prayer service and
vigil is being organized by the N.C. Council of
‘Churches; local anti-death penalty organizations have
‘issued “death watch” notices and a memo has arrived

from the N.C. Department of Correction. “SUBJECT:

Press Coverage of an Execution.” If all goes according to
the state’s plan, Gardner will be put to death at Raleigh’s
Central Prison early in the morning of Oct. 23.

Gardner, who was convicted in 1983 for the
shotgun murders of two workers at a Winston-
Salem Steak and Ale restaurant, has been on
death row for nine years. His trial lawyer,
Bruce Fraser, may have helped put him there.
According to Marshall Dayan, a lawyer in the
state Office of the Appellate Defender and co-
counsel in Gardner's appeal, Fraser was under
the influence of drugs and alcohol during
preparation and trial; was frequently so inc-
briated that his wife had to drive him to the
courthouse; and expressed disdain for Gardner
and the task of defending him.

Fraser's mental condition and his aversion
to his client showed most egregiously in his
decisions regarding the sentencing phase of
the trial. Rather than research and present the
mitigating circumstances that would have made
his client a more sympathetic figure to the jury,
Fraser called to the witness stand a single,
inappropriate and ultimately damaging witness
—the doctor who had evaluated Gardner to
determine if he was competent to stand trial.’

many states, including North Carolina—
chronic because it is common at the trial level
and winked at during appeal. In the least
horrific cases, defense counsel don’t have the
experience to try complicated death cases; in
the worst scenarios, the lawyers may be too
high or too hung over to think straight. In every
case, it is the defendant who pays the price.

mid the riveting moral and philosophi-

cal questions that. characterize the

death-penalty debate in this country
are stories of defendants dying because of bad
trial lawyers. The problem is insidious: A
lawyer's mistakes can be invisible to everyone
inthe courtroom, including the defendant, who
is literally at the mercy of his counsel's expe-
rience, talent and commitment.

To understand how harmful Bruce Fraser's
sentencing hearing tactics were you have to
understand how capital cases are tried. Once a
jury convicts the defendant there is a second
trial in which jurors must weigh “aggravating

“Ineffective assistance of counsel” is a chronic problem—
chronic because it is common at the trial level and winked

at during appeal.

The witness's most powerful testimony was her

recollection that Gardner had told herhe hoped

_ his father was dead.

Although he’s in considerably better shape
than his former client, Bruce Fraser is facing
legal trouble of his own. Charges pending
against him in Stokes County include one
count of trafficking cocaine and one count of
maintaining a dwelling to sell controlled sub-
stances. Fraser has also had arrest warrants
against him for credit-card fraud and driving

_ while impaired. In 1990 the:N.C. State Bar

suspended him for three years after finding
that he abused alcohol, used cocaine and ex-
hibited a “pattern of neglect” in his treatment
of clients.

John Gardner's is one of three North Carolina
death-penalty cases we will look at in which
the appellate courts have been asked to consider
the defendant’s claim that he was:denied his
constitutional right to counsel, which guaran-
tees a fairtrial and a reliable sentencing hearing.

“Ineffective assistance of counsel,” in the
language of the appeal, is a chronic problem in

circumstances” (evidence that supports adeath
sentence) against “mitigating circumstances”
(factors that argue fora life sentence). Although
these circumstances are defined by law, jurors
are free to consider whatever they like.

When evidence points overwhelmingly to
the defendant's guilt, this “penalty phase” is
actually more important than the guilt phase. A
defense attorney with the odds stacked against
her in the guilt phase may still be able to save
her client’s life in the sentencing phase.

But it’s not easy. While the prosecution
crafts an image of the defendant in the light of
his crime—details of which the jury has just
heard—the defense must provide the bigger
picture, an interpretation of the defendant's
behavior that makes him somehow less hor-
rible, less morally culpable. The defendant
may have a history of child abuse, mental
illness, braindamage; knowledge of this places
the crime in a context.

“It's very easy to vote to kill a non-human or
a sub-human,” says Mary Ann Tally, public
defender for the 12th Judicial District. “Prose-

cutors refer to defendants as wolves oranimals.
It’s absolutely critical for the jury to have some
sort of exposure to a defendant who is a human
being.”

In John Gardner’s case, says Dayan, there
was incredible evidence of physical and emo-
tional abuse. According to records kept by the

departments of social services in Dare and.

Pasquotank counties (and easily available to
Fraser during trial), Gardner was frequently
and badly beaten by his father, who once shot
at him with a rifle because he brought home a
bad report card. As a toddler Gardner was tied
to chairs for long periods of time. Separated
from his mother when he was 6, Gardner was

ist i Siee

nse lawye

t ae
Defe

but when years pass in the appellate process, it
becomes almost impossible.

Two years ago The National Law Journal
conducted a survey of the quality of legal
counsel in death-penalty cases. The study,
which profiled six Southern states, found that
lawyers appointed to death-penalty cases were
frequently unprepared, underpaid and under-
educated. Attomeys who represented death-
row inmates were found to have been dis-
barred, suspended or otherwise disciplined at
a rate three to 46 times the average rate. And
more than half of those lawyers whose clients
were convicted were handling their first capital

‘ trials.

have to be psychologists

Says

Steve Smith, Ralelgh criminal defense attorney. pute ny mJ. susp

bounced between foster homes and an abusive

_ father who once told a social worker he be-

lieved showing his son love meant he was a
homosexual. Fraser failed to discover, prepare
or present any of this evidence.

“In John’s case it was important to share
with the jury everything that happened,” says
Dayan. “This is someone who learned how to
take care of himself, to trust no one. You have
to share your client’s life because in nine out of
10 cases there will be things that will make the
jury sympathetic: learning disabilities, abeence
of love and support. You have to show the jury
the sad things that lead a person to take a life.

Fraser fell significantly short of doing that.” -

here is an old joke about competency

standards in capital cases,” says Leigh

Dingerson, executive director of the
National Coalition to Abolish the Death Pen-
alty in Washington, D.C. “You hold a mirror up
to the lawyer's nose and if it clouds up they're
competent.”

Every defendant has a constitutional right:

to counsel, but Strickland vs. Washington, the
U.S. Supreme Court “test” forineffectivecoun-
sel, is complicated and difficult to meet. To
win, a defendant must show that his lawyer's
performance was deficient and that “the defi-
cient performance prejudiced the defense.”
Strickland mandates no specific guidelines
and courts have by and large been left to create
their own standards. Prejudice is difficult
enough to prove under such subjective criteria,

Although the NLJ study didn’tinclude North
Carolina, many local lawyers say the situation
isn’t much better here. “North Carolina has
fooled itself forso many years,” says Henderson

| Hill, director of the N.C. Resource Center, a

division of thestate Appellate Defenders Office.
“We're always pointing the fingerat states like
Alabama. But when you read the [trial] tran-
scripts you realize (defense counsel] here can
be markedly ineffective.”

- “We like to think we are different from the
horror stories that everyone has heard about
the Deep South,” says public defender Tally.
“In fact, there is every disincentive in this state
for a lawyer'to do a competent job representing
aclient. ‘Minimal standards of competence’ is
meaningless in this state.” ee

Hill, Tally and others point out that North
Carolina has several talented criminal defense
lawyers—women and men who keep abreast of
the complex and mutable body of death-pen-
alty law and fight hard for their clients’ lives.
But “several” isn’t enough to handle all the
death penalty cases that go through the courts
(there are currently 73 people on North
Carolina’s Death Row, counting Gardner), and
a disconcerting number of lawyers appointed
to try capital cases aren't qualified to do the
work.

“You might think the state would take the
care to provide good defense lawyers when a
defendant is facing the ultimate price for his
actions,” one Raleigh lawyer says. “Instead
everything seems to be ona fast track. They get

the shoddiest nan and then hurry them
through the process. The feeling is, ‘let’s just
get this done.’”

Eventalented criminal defense lawyers find
death cases qualitatively different, both strate-
gically and psychologically. “The complexity
of the cases is amazing,” says Rich Rosen, a
UNC law professor. The penalty phase alone
requires defense lawyers to understand neuro-
psychology, mental illness, retardation, child
abuse and its affects on adult behavior. “These
are issues that are not familiar territory for
lawyers,” says Steve Smith, a criminal defense
lawyer in Raleigh. “Lawyers who try capital
cases have to spend a lot of time studying
subjects other than law.”

Once a lawyer finds the witnesses and
records to put together a sympathetic history of
her client's life—defendants in capital cases
are frequently unwilling or unable to help
piece the history together—she must then
employ a different kind of skill: storytelling.
“You have to use specific anecdotal informa-
tion,” says Mary Ann Tally. “There is no ring of
credibility [in calling] somebedy up as a char-
acter witness to say Johnny is a good boy. No
juror is going to believe that Johnny is a good
boy when he’s been convicted of first-degree
murder. But if somebody testifies that Johnny
came over and cut their grass because they
were too feeble to do it that tells the jury
something about the defendant.”

Putting together a life story and telling it
effectively takes time and commitment. “For a
lawyer to learn everything they can about the
defendant,” says Steve Smith, “involves not

only prying out a lot of institutional records but
also talking to people who don’t want to talk.
Clients who have committed a capital offense
have alienated a lot of people on the way.
Putting the pieces of this life together is an
overwhelming task.”

So overwhelming, say many lawyers who

doing a noble thing.”

The hostility is apparent in the courtroom,
in the eyes of the victim’s family, even from the
judge. According to Mary Ann Tally, the hos-
tility finds expression in procedural protocol.
“There is constant pressure on the defense
lawyer to hurry up and quit,” she says. And, in
a profession where reputations can soar or
crash. in a single highly publicized trial, the
message gets results. “These are lawyers whose
very livelihood depends on good will in the
community,” says Tally. “At least as a public
defender you understand from the beginning
that you are not going to be popular.”

Bernardino Zufiiga was sentenced to death
in Davidson County for the murder of a 7-
year-old girl. The lawyers appointed to repre-
sent Zufiiga were hardworking and conscien-

i n 1985, a migrant farm worker named

tious; according to Steve Smith, co-counsel on 7

Zufiiga’s appeal, they were also vinndetepialified
and overwhelmed.

“This was a notorious aiid sensational
crime,” says Smith. “The defendant was an
illegal immigrant and a migrant worker who
had raped and murdered a child. There was a
tremendous amount of community hostility and
hatred.”

There was also a tremendous amount of
evidence against Zufiiga, who was apprehended
at a Knoxville, Tenn., bus station wearing
bloody underpants, carrying a photo of the
victim. The aggravating circumstances came
out in the trial, says Smith, but the defense
counsel dropped the ball on the sentencing
hearing and presented virtually no mitigating
circumstances.

Had Zufiiga’s attomeys researched their
client’s past they would have uncovered a
history of psychiatric problems. (According to
Smith, who says Zuftiga is “not in touch at all
with reality,” a single conversation with his

The walling f TOOR] puote BY M.J. SHARP

work with capital cases, that everything else in
the trial lawyer’s life—family, sleep, other
clients—fall by the wayside. “Lawyers who do
these cases well,” says Rich Rosen, “do it
because they believe people deserve this kind
of representation. It’s an immense burden.”
Aside from the pressures of pay and time
(see sidebar “Getting what we pay for”), trial
lawyers have to deal with the stress involved in
saving someone's life—and pressure from a
community that frequently wants the defen-
dant exécuted. “These crimes are generally so
horrible it puts the defense attorney in a very
unpopular position,” says Leigh Dingerson of
the National Coalition to Abolish the Death
Penalty. “There’s really nothing within the
system to make a defense attomey believe he's

client “would have led the lawyer tosay Zufliga
was crazy.”) Prison hospital reports indicated

Zuhiga suffered blackout spells. According to _

testimony by his mother, finally contacted after
the conviction, Zufliga probably suffered brain
damage during his birth. A subsequent psy-
chiatric evaluation showed Zuftiga was mildly
retarded, had organic brain damage and func-
tioned with the judgment and capacity of a 12-
year-old child.

“My advice to any lawyer who defends a
death case,” says Marshall Dayan, “is you take
a big stack of releases over to the client. You
get information from schools, the department
of social services, the department of correc-
tion. If you’re trying to say why someone got to
the point of taking someone else's life you can

build a paper record, a life story.”

“It’s the lawyer’s duty toseek out his client's
life history and family,” says Steve Smith.
“(Zuniga’s} lawyers worked very hard, but they
abandoned the sentencing hearing. It's aston-
ishing to me that this could happen.”

contacted the bar to determine Paul's status,
they were not told of the suspension because

Paul, appealing the decision, was technically

still licensed to practice.)
According to Rosen, Paul became an im-
mediate liability to his client. He filed a frivolous

Appellate attorney Marshall Dayan says hls client, Joha Gardner, Is a victhn of bls
trial lawyer’s bad Judgment. pore sy w.5. suanp

Smith believes his petition for appeal stands
a good chance in the N.C. Supreme Court—but
he doubts it will win on the issue of ineffective
assistance of counsel. Such victories are rare,
in part because of the vague standard of review
defined by Strickland vs. Washington. There is
also, as state appellate attomey Tye Hunter
puts it, an “institutional resistance to recog-
nizing that lawyers don’t always do a good job.
Studies have shown,” Hunter continues, “that
these cases, which should get our best lawyers,
get our worst. And yet lawyers are uncom-
fortable saying other lawyers have done a bad
job.”

And then there’s inertia—the impetus that
builds as time passes and memory of the trial
fades. “The closer you get to execution the
more momentum there is,” says Rich Rosen.

“There’s a kind of institutional blood lust.”

he strength of that blood lust was ap-

parent in the execution last year of

Michael Van McDougall. According to
Rosen, who worked on appeal, the state had
been “trying to kill [McDougall] for 10 years”
and wasn't about to let a claim of ineffective
assistance of counsel stop them.

McDougall was convicted in 1980 of the
first-degree murder of his next-door neighbor,
whom he stabbed 22 times with a butcher knife
after talking his way into her house. According
to Rosen, McDougall-was undergoing testing
prior to trial at Raleigh's Dorothea Dix Hospital
when a lawyer named Jerry Paul visited him.
Paul, Rosen says, had received information
from his own psychiatrist about McDougall’s
situation. Although the defendant's family had
already retained ‘counsel, Paul convinced
McDougall that they weren’t doing their job—
and that he could win McDougall’s case.

“Paul was a hero to Michael,” says Rosen.
“He was telling him ‘There’s no question but
that I'm going to walk you out of here.’ Paul did
some incredible puffing. Michael was very
vulnerable; he had done something bad and he
saw a savior.”

McDougall convinced his family to hire
Paul as chief counsel.

What Paul didn’t tell his client was that he
was facing five ethical complaints filed by the
N.C. State Bar—and that, by the time he was
hired, the bar had suspended his license. (When

co-counsel, concerned about Paul’s behavior,

law suit against the trial judge and had yelling
matches with co-counsel, whose strategy he
railroaded in favor of his own plans to win
acquittal based on an insanity theory. Paul was
also frequently sick with migraine headaches;
he had to go to the emergency room nine times
in the course of the trial, occasionally walked
out during courtroom proceedings complaining
of pain and failed to show up one morning to
examine a witness. According to Rosen, Paul
shared Quaaludes with his client during prison
visits and was himself routinely medicated
with illegal druge and medications for his
migraines. “Paul spent the whole trial going to
the hospital to get shot up with Demerol,” says
Rosen. “Somebody that sick should not be
defending someone.” :

The defendant's family, Rosen says, was
“faced with a circus and a mad ringleader,”
and McDougall found himself “in the path of a
hurricane.” Jerry Paul's style included a lot of
“ranting and raving;” his closing argument at

the end of the penalty phase, rather than coaxing ~

the jurors toward a sympathetic view of
McDougall, insulted and alienated them. The
death penalty, Paul told the jury, “is the tool of
the Facists [sic]... Every human being who
believes in capital punishment loves killing,
and the only reason’ they believe in capital
peeecaneet) is because they get a kick out of
it...

: “This i is.a cese,” "Rosen says, “of getting
lawyers who shouldn't represent people on

traffic tickets doing death cases. The bar knew. -

Paul was not fit to practice and theyh hidit. They
did not take any corrective action.”

By Jerry Paul's own under-oath testimony
before the N.C. State Bar, he was neither
physically nor mentally capable of trying a
death case. He was eventually disbarred for
similar behavior in a later case. McDougall
never won post-conviction relief and was exe-

cuted Oct. 18, 1991.

| ost people would say we should
never kill people because of a bad
lawyer,” says Rich Rosen. “The

issue facing the state is, how can we guarantee
that?”

There are measures to help ensure the

quality of defense: counsel in capital cases.

continued on next page)...

2]

4A—_m SS On Pn Sms

: NORTH CAROLINA |

- WINSTON-SALEM am ‘Prose
cutors have released a 2nd hand-
written confession by death-row in-
mate John Gardner. The ’83
confession is a response to defense

_ attempts to have his Oct. 23 execv-

: . tion overturned. He was convicted

in the’82 deaths of Richard Adams
~ Jr. and: ‘Kimberly Miller.

_. GREENVILLE — Stata Ran. Wal

A+» THURSDAY, SEPTEMBER 24, 1992+ USA TODAY —

ALABAMA

MOBILE — The jury ti that con-

victed Cornelius Singleton wasn’t

. told he is mentally retarded, so he
shouldn’t be executed, said his law-

yer, who says he'll file next week

for a stay of execution. : Singleton,

36, is to be executed Nov, 20 i

°77 killing of Sister Ann Hogan, 51,

as she cbr ina ie here.

ree reine memen

USA TOD FRIDAY, SOSIose cE 1992.

Ww

vb
@

g

_ re

tw

y
@

CONNECTICUT

WILLIMANTIC — Terry John-
son, son of an ex-policeman, will
stand trial here Nov. 4 in the ’91
slaying of state Trooper Russell
Bagshaw, 28. His lawyers have said
they may plead insanity. The state .
is seeking the death penalty

against Johnson, 23, and his broth- |

er, Duane, 19.

iF ULE

1A

|

A-16° Friday, October 23, 1992 *

"NATION DATELINES

Double killer put to

death by injection

RALEIGH, N.C. John Sterling Gard-
ner was put to death by injection early
Friday for killing two people during a:
restaurant robbery 10 years ago.
Gardner, 34, was pronounced dead at
11:15 p.m. PDT Thursday, 14 minutes
after the execution began, said prison

spokesman Bill Poston.

Gardner was sentenced to die for the
Dec. 23, 1982, slayings of Richard Ad-
ams, 21, and Kim Miller, 24, at a restau-
rant in Winston-Salem.

{ *& |

Friday” afternoon

OCTOBER 23, 1992

LATE OPORTO

EDITION

THIRTY - Five CENTS

evidence against Danny Rolling

the judge ruled. Some key items
‘such as crime scene photos may be
withheld, however. Rolling, 38,

FLORIDA.

GAINESVILLE — Much of the

— suspected in the ’90 deaths of 5
students — can be made public,

faces 5 first-degree murder
charges in the ’90 slayings, and his
trial is tentatively set for trial Sept.
1, 793. ..- » TALLAHASSEE : -— The

‘ St 5 So OPN a Se gy

NORTH CAROLINA

WINSTON-SALEM — Prose-
cutors have released a 2nd hand-
written confession by death-row in-
mate John Gardner. The 83

confession isa: response todefense ,,

~~~~~~~~~T attempts to have his Oct. 23 execu-

"tion overturned. He was convicted
| in the 82 deaths of Richard Adams
|. Jr. and Kimberly Miller. ...

ls) gum omen an Ceatn Dan Wal.

USA TODAY « THURSDAY, SEPTEMBER 24, 1992+ 7A

NORTH CAROLINA

WINSTON-SALEM — The par-
ents and sister of Richard Adams
and Kim Miller, 2 victims slain
during an ’82 robbery at Steak &
Ale restaurant, are among 11 wit-
nesses scheduled to watch John
Gardner’s execution Friday, the
state Dept. of Correction said.

14A + TUESDAY, OCTOBER 20, 1992 - USA TODAY

| fn neg NS ees eR Ee]
Neer eee ee ee ee ee Tas

Vr eaess Yo YW IL,UUU,

armed robberies and another Slaying.

.* FRIDAY, OCTOBER 23, 1992 » USA TODAY

_ KILLER EXECUTED: North Carolina executed John Gard-

° ‘ed by lethal injection at 2:15 a m. ET, pri j
eC -t9 a.m. ET, prison officials said.
he the witnesses: Adams’ family. Prosecutors said the

llings were part of a six-week crime spree that included

IS3M 3HL JO 3DIOA SHI

apo osivuragy uw

Killer Executed
In North Carolina |
Raleigh, N.C. — John Sterling |

Gardner was put to death by in-

-jection early today for killing
“two people during a restaurant ~
_ robbery 10-years ago. .

Gardner, 34, was _ pro-
nounced dead at 2:15 a.m., 14
minutes after the execution be-
gan, Officials said.

He was condemned for the >

slayings of Richard Adams, 21,
and Kim Miller, 24, in Winston-
Salem on Dec. 23, 1982. Prosecu-
tors said the two were killed
during a six-week crime spree

_ that included another slaying. |

Gardner became the 184th

person executed in the United —

States since the Supreme Court
in 1976 let states resume using
capital punishment. An execu-
tion in Missouri on Wednesday
night was the nation’s 26th this
year, the most since 1962.

PDE

Z66L ‘EZ YIPOLDO ‘AVAIAS


YUMIDATDN OOM

By me Downey

JOURNAL REPORTER
- Prosecutors plan a hearing Oct. 14 to seta

new execution date for John Sterling Gardner
now that a federal judge has upheld Gard-
ner’s murder convictions and two death sen-

- tences.

In a brief order signed Wednesday, Judge
Frank W. Bullock dismissed Gardner's peti-
tion that contends that errors made in his

= Purr ae Hoar 20 |

Hearing Planned to Schedule.
Execution i in Forsyth Case

aun tee

the Steak and Ale Restaurant on Stratford
Road during a robbery Dec. 23, 1982.
Prosecutor Eric A. Saunders said he in-
tends to call Gardner into Forsyth Superior
Court on Oct. 14 in front of Judge Julius’A,
Rousseau Jr. A new date for Gardner's execu-
tion will be set then, Saunders said. _
But whatever date is set may not stick,
Gardner's attorney, Robert M. Elliot, said he
intends to appeal Bullock's decision to the

Ath U.S. Circuit Court of Appeals. Whichever
See EXECUTION, Page 21

: trial in September 1983 deprived him of his
| constitutional rights. Gardner was convicted
of killing two young people who worked at

rday, September 14, 1991
|

EXECUTION

Continued From Page 17 <>,

PAGE 21

side loses there can ask the U.S. . a

Supreme Court to review the case.
This is Gardner's third round of

appeals, and probably the last,

_ Bruce C. Fraser handled his first
round of appeals until the U.S. Su-
preme Court upheld the conviction
in 1985. Elliot and his associate,
Ellen R. Gelbin,. topk the second
round of appeals — which contend-

' ed that Fraser had handled the case,
improperly — through the state
and federal courts until 1988,

- again to the U:S. Supreme Court. .

This round is a writ of habeus
corpus, which orders: a person in.
custody to be brought into. court —
and is heard only in federal court.

The appeal contends, among oth-

- er things, that Fraser syffered from, -
’ drug and alcoho! abuse and that —
that deprived Gardner of his right °
to adequate legal representation. It
ae also contends that an important.

Witness against Gardner told
friends that he was involved in the.
robbery and killings... |

A magistrate judge recommend-
ed June 25 that the appeal be dis- ~
missed. In a four-paragraph order,
Bullock said that he reviewed the

_ arguments and the recammenda-
tion and that he upheld the magis-
trate’s decision. The order does not

_ discuss the allegations made by the

. defense in its appeal.

,Gardner, 32, of Lexington, was
convicted in the deaths of 24-year-
old Kim Miller and 21-year-old

~ Richard Adams, who were shot with
a shotgun during the robbery


Buetow ones | QGH~\9 ~1\

ee ECR

‘A hearing is planned for October
14, 1991, to set a new execution date
for John Sterling Gardner, 32, the
, convicted murderer of Richard
_, Adams of Griffon and Kim Miller, ac-
cording to an article in the Winston
Salem Journal Monday.

Gardner's most recent appeal con-
tending errors in his September 1983
trial which denied him of his constitu-
tional rights’ was denied by Judge
Frank W. Bullock . Wednesday,
September }1,1991. . |

Adams, 21, and Miller, 24, were
killed by Gardner at a Steak and Ale
Restaurant in Winston Salem during
a robbery on December .23, 1982.
Adams, a graduate of Ayden-Grifton
High. School, was an assistant
manager at the’ restaurant. Both
‘were shot with a shotgun, Gardner
received two death sentences after

being found guilty fors the two
“murders. | - ane
-. According to the Journal article
'. Prosecutor Eric A. Sanders is plann-
ing to set a ‘hearing in Forsyth
Superior Court October. 14 in front of
Judge Julius A. Bousseau Jr. in order
lo set a new execution date.

)

. Execution Hearing $

7 @ea@a@aet

However, Gardner, ‘a Lexington

‘native, has one last round of appeals

remaining, and it is unlikely that a

new execution will he carried out. .-

The Journal article indicated that
Robert M. Elliot, Gardner's at-
torney, will aoe the latest decision
to the 4th U.S. Circuit Court of Ap-
peal. From there, either side may ap-
peal the 4th Circuits decision to the
U.S. Supreme Court for review.
Gardner was represented by Bruce
C. Fraser through his first round of
appeals which resulted, in 1965, inthe
U.S. Supreme Court upholding the
convictions. The Journal story said |
that Elliot and his associate, Ellen I.
Gelbin, have defended Gardner -
through the second round of appeals. .
His attorneys contended that Fraser
improperly handled Gardner's
case.through the state and federal —
courts, . ;

‘ According to the Journal, the ap- ,
peal contends that Fraser was
deprived of his right to adequate .
legal representation because Fraser
suffered from drug and alcohol abuse
and that an important witness .

s

iends he was

against Gardner told fr he
and killings.

involved in the robbery

‘idence.

the case. for an
Thursday morn-
with their ver-

ud) orge M.

dic rdner’s

counts of first- .

in, attorneys be-
sainst the death
ked the jurors to
ack to the night

urged calmly, as
1 Gardner to the
< about the still-

trace the foot-

j jurors to com-
‘chard Adams to

au go home and —

e said in a voice
a whisper. ‘“Be-
een your child.”
rtroom audience

torney Fraser at —

g his chair and

- pass his law-

: sdale raised his
nat Gardner was
a human being.

iw toares-.

ny on rob-
mask: Tisdale

premeditated,

e didn’t intend to:

ad we’re going to

g for lack of any

the prosecutor
yardner. .
death penalty as
allows. Tisdale
acluded his argu-
al solutions can

” the prosecutor
here, we could
e dead. We can’t
yle.”” He told the
nly do what the
o. And from the
it, the law said

e young people
aid. “I can’t re-
ie family. I can’t
(he community.”
aser, asking for a
ient, argued that
ild be vengeance,
bri ** ose two

TR i at anal a

oo we ee

people back,” he said.

The defense lawyer told the jury that
Gardner had had a tough home life, had
quite school at age 15, had abused alco-
hol and a wide variety of drugs, and
never had a chance to make something
of his life.

“Maybe if there’s some good in John
Gardner, we shouldn’t execute it with
the bad in John Gardner,” Fraser said.
“Can you reach down and find some
mercy for this pathetic, tortured per-
son?”

The jury came back Friday morning,

‘September 23, 1983, after deliberating

Gardner’s fate for two hours and 45
minutes. Judge Fountain read the sen-
tence. He told the defendant he would
suffer “the penalty of death by asphyx-
jation.” Translation: Gardner was going
to the gas chamber.

As the judge passed sentence, the de-
fendant rocked in his chair as he had
throughout the trial. He appeared to be
fighting back tears.

Judge Fountain told Gardner to stand
and asked him if he had anything to say
as to why the death penalty shouldn’t be
imposed.

“No sir, I have nothing to say,” Gard-
ner answered, and sat back down.

A few friends and family members of
the victims wept in the audience.

In reaching their decision, jurors had
weighed aggravating circumstances
against mitigating factors. They found
that Gardner’s commission of the brutal
murders for monetary gain was an ag-
gravating factor that outweighed the
mitigating factor that his drug or alcohol
addiction might have led him to commit
the crime.

Detectives met with Gardner when
court recessed to quiz him about his
possible accomplices. Gardner gave the
investigators some names, but no addi-
tional charges were ever brought.

And the mysterious “Johnny” never
surfaced.

At 1:50 a.m. on Friday, October 23,
1992, John Gardner Jr. was wheeled
into the death chamber at Raleigh’s

' Central Prison. Maintaining his inno-

cence to the end, Gardner succumbed to
lethal injections of thiopental sodium
and Pavulon at 2:15 a.m.

Detective Bullard has retired. Brans-
come is now a lieutenant and Diamont
is now a sergeant in the Winston-Salem
Police Department’s internal affairs di-
vision.

Lloyd, the detective with the Forsyth
County Sheriff’s Department who
worked the case, is now a lieutenant in
his department’s training division. o¢4

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True Detective 61


into the trash receptacle.

So why had some cash been left be-
hind? Apparently, Gardner had pan-
icked. The motive here was definitely
robbery.

The detectives had Gardner placed
back in his jail cell, and ordered a tran-
script of the taped confession. The next
day, they showed the transcript to Gard-
ner. He read it and signed it.

They charged the suspect with two
counts of first-degree murder. The in-

_vestigators didn’t charge Gardner with

robbery. Under North Carolina law at
the time, the robbery charge would have
been extraneous. .

Police photographed Gardner and

took his prints. He was placed in the

Winston-Salem Jail without bond.

As the department brass held a glee- |
ful press conference to discuss the ar-
-rest, Detective Bullard was hurrying
across town with one last detail to fin-

ish. He went to the cashier’s house and
showed her. a’six-photo lineup that in-

__ cluded Gardner’s snapshot. He wanted
to hit before the cashier saw Gardner’s

mug splashed across TV screens and
newspapers. If that happened, defense

attorneys could later claim the lineup

had been prejudiced.

The cashier picked out Gardner right
away by his large, distinctive blue eyes
set deeply under dark, bushy eyebrows.
Gardner’s friends would later say those
eyes were frightening and could cut
right through you.

The cashier’s eyewitness identifica-
tion was crucial. That testimony and
Gardner’s confession were the only
things positively tying Gardner to the
crime scene, aside from the somewhat
shaky statement from the Crimestoppers
tipsters on what Gardner had said about
the crime.

The investigators would never recov-
er the murder weapon. Of course, it sup-
posedly belonged to the mysterious
buddy of Gardner’s named Johnny.

In the weeks after Gardner’s arrest,
the investigators tried in vain to find
Johnny. Finally, they decided that John-
ny was Gardner’s alter-ego. There were
definitely two sides to this defendant:
the cold-blooded killer and the man who
had called Detective Lloyd, leaving
messages saying that he knew. some-
thing about the crime.

Gardner’s trial began on Monday,
September 19, 1983, at the Forsyth
County Hall of Justice in downtown

~ Winston-Salem. Longtime District At-

torney Donald K. Tisdale would be
prosecuting. Bruce C. Fraser, a veteran
defense attorney, would be representing

60 True Detective

the burly, blue-eyed defendant.

Gardner had remained in jail since his.
March arrest. He’d pleaded guilty to the ’
Forsyth County armed robbery and had
received a 14-year prison sentence.

No, D.A. Tisdale wanted to tack a
death penalty on top of that sentence.
He was going for the ultimate penalty.
The state’s case went well. As the de-
fense began their case on Tuesday,
Gardner took the stand to testify that
he’d never even been to the Steak and
Ale Restaurant.

He told the jury his March confession
wasn’t true. He claimed he only made it
because the sleuths had threatened to
charge his girlfriend in the crime.

D.A. Tisdale later called the detec--

tives to testify as rebuttal witnesses.
They said they’d never made such a
threat.

Gardner’s girlfriend, testifying for the
defense on Wednesday, said that Gard-

ner was with her at the time the killing ©

took place. But on cross-examination,
she admitted that Gardner had written
her a letter saying he wasn’t with her
during the time of the crime.

In his closing argument Wednesday,
Prosecutor Tisdale dropped a bomb-
shell: he told the jury that Gardner
hadn’t been alone with his victims at the
restaurant. In fact, the prosecutor said, |
the jury had probably heard Gardner’s
accomplices testify as defense wit-
nesses.

Tisdale did not identify anyone by
name. He said over the whispers in the

packed courtroom that those unnamed -

people would be on trial with Gardner if
investigators had been able to gather

‘As if he wasn’t scary enough all alone,

John Gardner claimed he was egged on in
the crime by a gigantic Hell’s Angel.

a sufficient amount of evidence. |

The jury deliberated the case for an
hour and 40 minutes on Thursday morn-
ing before coming back with their ver-
dict. As Superior court Judge George M.

_ Fountain read the verdict, Gardner’s

eyes watered slightly.

He was guilty of two counts of first-

degree murder.

On Thursday afternoon, attorneys be-
gan arguing for and against the death
penalty. D.A. Tisdale asked the jurors to
take a mental journey back to the night
of the crime.

“Think about it,” he urged calmly, as

he asked the jury to send Gardner to the
gas chamber. “You think about the still-

ness of the night. You trace the foot- :

steps.”
The prosecutor asked j jurors to com-

pare Kim Miller and Richard Adams to ©
their own children. “You go home and -

you hug your child,” he said in a voice
that dropped almost to a whisper. “Be-
cause that could have been your child.”

Members of the courtroom audience
wept.

Gardner sat beside attorney Fraser at —

the defense table, rocking his chair and

swiveling it frequently to pass his law-

yer long notes.

At one point, D.A. Tisdale raised his
voice and told the jury that Gardner was
not worth being called a human being.

What sort of man would walk into a res- .

taurant with a shotgun, intent on rob-
bery, and not wear a mask? Tisdale
asked.

‘‘Actually, it’s just premeditated,
cold-blooded killing. He didn’t intend to
leave any witnesses. And we’re going to

call this a human being for lack of any

other word I know of,” the prosecutor
said, gesturing toward Gardner.

He talked about the death penalty as
justice that the law allows. Tisdale
seemed weary as he concluded his argu-
ment, saying that legal solutions can
never really be just.

“There is no justice,” the prosecutor
said. “‘If justice were here, we could
raise somebody from the dead. We can’t
make the [victims] whole.” He told the
jury that they could only do what the
law said for them to do. And from the
prosecutor’s viewpoint, the !aw said
Gardner should die.

“I can’t bring these young people
back,”’ D.A. Tisdale said. ‘I can’t re-
move the scars from the family. I can’t
remove the scars from the community.”

Defense Attorney Fraser, asking for a
life sentence for his client, argued that
executing Gardner would be vengeance,
not justice. “It won’t bring those two


The victims had been hardworking,
friendly young people, and preliminary
interviews with friends and family

_ members suggested nobody would have
had any reason to kill them. Richard
Adams had lived in Winston-Salem and

- Kim Miller was from the nearby small

town of Yadkinville. .

Bullard and Detectives Donald Dia-
mont and Mike Branscome continued

their interviews with the victims’ .

friends, family, and co-workers, looking
for something they might have missed.
By the next morning, detectives had a
preliminary autopsy report. The victims
had, in fact, been shotgunned. They had
probably died immediately. That was
_ some help to the sleuths, but they’ d
need a lot more.
That day, an important piece of the

puzzle surfaced when a cashier at a res-

taurant beside. the Steak and Ale called
police to tell them about something
she’d seen early Thursday. She said un-
til now, she’d been scared to come for-
ward, but her boss had persuaded her to.
The cashier relatéd that she’d been
walking to her car about 12:30 a.m.
when she heard a foud noise that
sounded to her like a car backfiring.
Then she heard a sound like someone
’ running in tennis shoes. She looked up
and saw a man running to a vehicle at
- the adjacent Steak and Ale parking lot.
Both she and the man had been startled,
she said. She stopped walking, and he
stopped running. The cashier and the
man stood 30 feet apart in the well-lit
parking lot.

The cashier had been caught by the
man’s eyes. The way he stared at her re-
ally scared her. A second later, he got
into his car and left.

Detectives took down the woman’s

_ Statement, as well as her home phone
number and address. If she had in fact
seen the killer, the sleuths at least had a
rough time frame in which the crime
had occurred. And hopefully, they
would develop a suspect for her to iden-
tify by sight.

But as Bullard and his fellow investi-
gators toiled through the holidays and
the short winter days of the new year, it

looked as though they’d never develop a °

strong suspect. They showed the cashier
photos of a few suspects with no luck.

A month-and-a-half after the killings,
the investigators seemed lost in a frus-
trating maze of dead-end leads. The lab
techs’ initial guess had been right: none
of the prints lifted from the scene were
usable.

Steak and Ale had posted $15,000 in .

reward money, the governor’s office had

58 True Detective

x

put up another $10,000, and the police
department’s Crimestoppers unit had
put up $1,000. The lure of the heavy
cash reward had attracted several calls,
but the tipsters had been none too help-
ful.

A Crimestoppers tip that came in ear-
ly February, however, showed promise.

-The tipster said he was friends with a
25-year-old named John Sterling Gard-
ner Jr. In January, the tipster said, he
and Gardner were sitting around watch-
ing television at a mutual friend’s house
when a.Crimestoppers segment about
the Steak and Ale slayings had aired.

Gardner said he had some informa-
tion about the case he bet. police would
like to have, the tipster said. Then Gard-
ner said he’d like to “make another lick
[commit another crime],” that ‘‘twenty-

five hundred dollars doesn’t come |

around every day.”

The tipster said he’d been drugged

at the time, but had thought about it and
decided to come forward. The detec-
tives did-some checking. It turned out
that Gardner was right under their
noses. He was in the Winston-Salem Jail

“where he’d been since February 10th,
charged with an armed robbery in For-

syth county, of which Winston-Salem is
the county seat.

Detective Bullard had a chat with
John Gardner on February 15th. Gard-
ner said he didn’t know anything about
the Steak and Ale crime.

Bullard and the other detectives went
to work, setting out to learn all they
could about Gardner. Hailing from the
nearby small town of Lexington, he sup-
posedly made his living from a part-
time job learning how to finish concrete.
They found out that he was an ex-Ma-
rine who had qualified with several
weapons. He had one shotgun he called
the “master blaster.”

But there was nothing to tie to the
crime scene, except the somewhat shaky
story from the Crimestoppers caller, al-
though a second tipster also said that
Gardner had made statements about be-
ing involved in the slayings. The sleuths
continued to work’ the Gardner angle for
the next several weeks, but it wasn’t de-
veloping that well. And Gardner wasn’t
talking.

Then, on the morning of March 23rd,
Detective Robert Lloyd of the Forsyth
County Sheriff’s Department arrived at
his Winston-Salem office to find some
very interesting messages on his an-
swering machine. Apparently, Gard-
ner had called from the jail, saying he
had information about the Steak and Ale
killings.

Detective Lloyd immediately called

Bullard, who he knew was working

Gardner as a suspect in the slayings.
Bullard came over to Lloyd’s office,
where the two sleuths were soon talking
to Gardner. _

The suspect-was a slender man with a
dark shaggy beard and a dagger tattooed
on one upper arm. During his chat with .
Bullard and Lloyd, the suspect said he
wasn’t involved in the killings, but he
did know someone who was.

He described that man in detail:
“Johnny” was a Hell’s Angel who
stood 6-foot-6 and weighed about 240
to 250 pounds. He had reddish-brown*
hair down to his shoulders and a tattoo
of a motocycle wheel with wings over it
and the slogan “Born to Raise Hell” on
one arm.

Gardner said that Johnny talked about
being in a devil worship cult and killing
people with a sawed-off, pump-action
20-gauge shotgun.

The detectives asked Gardner to take
a lie detector test on the shootings. The
suspect agreed to take it—and flunked.

At 4:30 p.m. that same day, Bullard
had Gardner brought over to his office.
He confronted the suspect with the test
results. Apparently spooked by the test
result, the suspect agreed to give a state-
ment about his involvement in the
shootings.

Gardner admitted that he drove, but
he maintained that Johnny and another
man went in the restaurant and did the
killings. Bullard asked Gardner to hop »
in his patrol car and show him and De-
tective Donald Diamont the route they
had taken to the restaurant.

The suspect agreed. Following Gard-
ner’s directions, Bullard pulled onto In-
terstate 40 and took the Stratford road
exit, heading south on Stratford until he
turned onto Bethesda Road and made a
quick left into the restaurant parking lot.
Outside the Steak and Ale, Gardner said
he’d parked parallel to the building
while the other two men went in.

- Something about Gardner’s story
bothered Bullard. The sleuth felt the
suspect was more involved in the kill-
ings than he was letting on. Back at
headquarters, Bullard deposited Gard- .
ner in an interview room and left him —
alone for a few minutes.

Detective Mike Branscome was
walking by the room when Gardner
asked him to step inside. The suspect
asked the investigator what he thought
about his statement.

Branscome told Gardner that he felt
like he hadn’t told the whole truth. The
detective told the suspect he believed he


mediately called
ew, was working
in the slayings.
o Lloyd’s office,
wl on talking

‘lender man with a
| a dagger tattooed

iring his chat with .

ve Suspect said he
i¢ killings, but he
ho was. ‘

it man in detail:
ell’s Angel who
eighed about 240

ad reddish-brown’

ilders and a tattoo
with wings over it.

to Raise Hell’? on

hnny talked about -

ip cult and killing
-off, pump-action

>d Gardner to take
-he shootings. The
.c it—and flunked.
same day, Bullard
over to his office.
/pect with the test
,00ked by the test
2ed to give a state-
olvement in the

tha“ Irove, but
yhn d another
aurant and did the

-d Gardner to hop »

show him and De-
ont the route they
urant.

. Following Gard-
itd pulled onto In-
the Stratford road
1 Stratford until he

Road and made a
aurant parking lot.
Ale, Gardner said
| to the building
ien went in.
Gardner’s story
e sleuth felt the
olved in the kill-

hadn’t meant to kill those two pcople,
but something must have caused him to
snap during the robbery.

The detective said, ‘I believe you're
the one who killed those people.”

Gardner hesitated. He said he had
problems of blacking out in the past.
Then he hung his head.

“T killed them,” he told Branscome.
Gardner added that he would make a
statement.

Containing his excitement, Brans-
come had other detectives come in and
set up a tape recorder. After Bullard
read the suspect his rights, Gardner gave
a more detailed statement.

Speaking in a deep, sluggish voice
and often rambling, Gardner told of
drinking, taking drugs, and deciding to
rob a restaurant chosen at random.

He left his Lexington home about
9:00 p.m. on December: 22nd, and rode

afound his hometown drinking. He’d _

been drinking for three days. He drove
to a Winston-Salem bar, where, for the
first time, he met Johnny. Gardner and
Johnny drank and shot pool. Later, they
sat outside in Gardner’s 1974 Plymouth
and injected crystal methamphetamine.
They sat in the parking lot for about a
half-hour, talking about how they
needed cash. They decided to find a
place to rob, and rode around, drinking
more and picking the Steak and Ale
Restaurant at random.

Just before 12:30 a.m., they pulled
into the restaurant parking lot. Gardner
parked the car, leaving the motor run-
ning and the lights off. He borrowed
Johnny’s 20-gauge shotgun and went to
the rear door and rang the bell. When a

* woman cracked the door, he pulled it

open and forced his way inside.

Gardner pushed the woman, who
the detectives realized was Kim Miller,
back to the office area, thinking the cash
would be there. In the office, Gardner
was surprised to find the man, Richard
Adams.

Kim got the money from the safe and
gave it to Gardner. Then she said some-
thing to Richard, who looked as if he
was coming up out of his chair with

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True Detective

59