2T4 STORY OF NORTH CAROLINA.
CHAPTER LIV.
-_
NASH COUNTY.
Nasm County was formed from Edgecombe County, in 1777,
and named in compliment of General Francis Nash, of Orange,
who fell this year at the battle of Germantown, bravely fichtine
for the liberties of his courtry. For a sketch of whose life see
Orange County, Chapter LVIIL.
It is situated in the eastern part of the State, and bounded on
the north by Halifax, east by Edgecombe, south by Johnston, and
west by Franklin.
Its capital is Nashville, and is distant 44 miles east from Raleigh.
Its population, 5,972 whites; 4,056 slaves; 629 free negroes; 9,034 repre-
sentative population.
Products, 50,738 lbs. cotton; 1,165 lbs. wool; 32,325 bushels corn; 5,882
bushels oats; 833 bushels wheat.
ATTACK OF TORIES ON JAMES DRAKE, AND GALLANT CONDUCT OF HIS SON—SOOTH-
ING EFFECT OF ONE OF THE GREAT STAPLES OF NASH,
During the Revolution there was a Captain Beard, who spread terror
through this County. This account of him, and that of his death, has been
narrated to me by my venerable and worthy friend Michael Collins, Esquire,
of Warren, now in the 73d year of his age, and may be relied on for its cor-
rectness :—
About 1778, Captain Beard, who was a brave and gallant soldier, but
mistaken in his duty, attacked the house of James Drake, Esq., of Nash
County, with a band of Tories. There was at the time, in the house, no one
but Mr. Drake, his son Albritain, then about seventeen, and Benjamin
Bridges, his half-brother; Nathaniel Nichols, Henry Massinger, and Robert
Piland. Bridges and Nichols retreated. The rest prepared fur defence.
Albritain, who was one of a corps of light horse, and had been in active duty
scouring the country for these very men, ran out with a loaded musket and
fired. The Tories then surrounded the house, and ordered a surrender.
They had several prisoners, tied, with them. Old Mr. James Drake seized a
gun and advanced on the foe, but his gun missed fire; William Ross, a Tory,
fired at him with a gun charged with buck shot. Ilis aim missed the old
man, but wounded both Massinger (cutting off a part of his nose) and Piland
(shot in the abdomen). The Tories, headed by Beard, sword in hand, rushed
into the house. Beard was met by young Albritain Drake, with a cutlass ;
they engaged ; at the first blow young Drake’s sword struck the joist above his
head, and broke off at the hilt: he was knockeddown. The old man then joined
in the melée, with his gun clubbed; but was soon cut down by the sword of
Beard, and was so severely wounded that “he was a gore of blood.” Seeing
her husband cut down, old Mrs. Drake rushed in, not with a weapon, but with
a jug of old Nash, even to this day celebrated for its excellent flavor. Her en-
treaties and the more potent influences of the liquor, produced a parley. She
plied them so liberally with the brandy, that peace was restored. Beard had
been an aspirant for the hand of her daughter. During this time Captain Peter
Goodwin with a troop of horse galloped up; Albritain Drake threw up his
HISTORICAL SKETCHESOF NORTH CAROLINA FROM XMXKXKA 158), to MRMK 1651,
Regional Publishing Company, 196);
]
NASH COUNTY. pags
hat, and gave a loud halloo; Goodwin made a furious attack, and Beard and
his men made a precipitate retreat. In his retreat, he was encountered by
Bridges, who was near. Bridges’s gun missed fire, and Beard used his sword,
but was knocked down by Bridges, and he fell lifeless. Bridges thought he
was killed, and came to the house and informed them that he had killed
Beard. They all went out to see his dead body, but Beard had recovered so
as to situp. He was then taken into custody. A negro man, Simon, who
had a wife at Drake’s, caught another one of his band, named Porch. These
were taken to Colonel Seawell, in Franklin County. They were tried by a
Court-martial, and both were forthwith hung. Such was the end of Captain
Beard.
Mr. Drake lived to a good old age, and died in 1790, in the sixty-fifth year
of his age. His brave son Albritain married and settled in Robeson, where
his son John now lives, and then moved to Kentucky, where he raised a
large family, who, and their decendants, are highly respectable and scattered
over the south-western States. His son Colonel James P. Drake, commanded
the Indiana Regiment in the late war with Mexico. Albritain Drake died
at the advanced age of eighty, loved and respected for his kindness and virtues.
Hon. ArcnispaLp ARRINGTON resides in this County. He is the brother of
Samuel L. Arrington, who, from 1833 to 1842, represented Nash County in
the Senate. Mr. Arrington was elected to Congress from this District, in
1841, and was re-elected in 1843, defeating the Hon. Edward Stanly. After
serving this Congress, he retired to private life.
Members of the General Assembly from Nash County, from its
erection to 1850-’51.
Years. Senate.
1778. Hardy Griffin,
1780. Hardy Griffin,
1781. Hardy Griffin,
1782. Hardy Griffin,
1783. Hardy Griffin,
1784. Hardy Griffin,
1785. Hardy Griffin,
1786. Hardy Griffin,
1787. Hardy Griffin,
1788. Red. Bunn,
1789. Hardy Griffin,
1790. Hardy Griffin,
1791. Hardy Griffin,
1792. Hardy Griffin,
1793. Hardy Griffin,
House of Commons.
Thomas Hester, Hardy Griffin.
Joseph Arrington, Edward Nicholson.
Joseph Arrington, Edward Nicholson.
Joseph Arrington, Edward Nicholson.
Micajah Thomas, Thomas Pounds.
Micajah Thomas, Thomas Pounds.
John Bonds, Micajah Thomas.
John Bonds, Jos. J. Clinch.
Micajah Thomas, John Bonds.
Wilson Vick, John Bonds.
Wilson Vick, John Bonds.
James Battle, John Bonds.
Howell Ellen, Joseph Arrington.
John H. Drake, Joseph Arrington.
John H. Drake, John Bonds.
1794. Hardy Griffin, John H. Drake, Arch’d Hunter.
1795. Hardy Griffin, John H. Drake, Arch’d Hunter.
1796. William Arrington, John H. Drake, Arch’d Hunter.
1797. Archibald Griffin, Redmond Bunn, Arch’d Hunter.
1798. John Arrington, Redmond Bunn, John H. Drake.
1799. John Arrington, Redmond Bunn, Arch’d I{unter.
1800. John H. Drake, Geo. Boddie, Redmond Bunn.
1801. John Arrington, Geo. Boddie, Arch’d Hunter.
1802. John Arrington, John Hilliard, Arch’d Griffin.
1803. John Arrington, Arch’d Griffin, John Hilliard.
1804. John Arrington, Arch’d Griffin, Nathan Whitehead.
1805. John H. Drake, Nathan Whitehead, Henry Hines.
1806. John Arrington, Arch’d Griffin, Redmond Bunn.
1807. John Arrington, Arch’d Griffin, Redmond Bunn.
1808. William Arrington, . Amos Gandy, Redmond Bunn.
1809. William Arrington, Michael Collins, Exum Phillips.
1810. William Arrington, Amos Gandy, Michael Collins.
1811. William Arrington, Michael Collins, Exum Phillips.
by John Hill Wheelers; Volume II; Baltimore:
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TIES
Eprror’s Note: With the alarming in-
crease in the frequency of sex crimes
now prevalent throughout the country,
this case, in which the famed G-Men
figured, carries a moral lesson of power-
ful and timely significance.
lus LITTLE MILL TOWN of Croley,
North Carolina, was shutting down for
the night when Helen Harris and two
high-school chums came out of the mo-
tion-picture show. A shirtsleeved usher
stood on a ladder in front of the dark-
ened marquee, arranging the panels for
the next day’s feature. In the candy
store across the street, a lone customer
sat at the soda fountain, but the window
lights were already dimmed.
“Let’s hurry,” said Helen. “We don’t
want. to miss the last bus.”
They were walking down the street
when a car that had been cruising near .
to the curb, pulled alongside.
‘Hello, girls—how about a lift?” came
the soft-spoken invitation.
“Don’t even look at him,” counseled
Helen, who was the eldest of the group.
With an indignant toss of her blonde
head she led her friends:toward the bus
terminal. :
The bus came soon afterward and as
they took their seats the incident was
all but forgotten. They chatted about
the show they had seen and discussed
By GEORGE
some of the amusing incidents of the
watermelon feast they had been to
earlier in the evening.
Had they chanced to~look out of
the back window, they might not have
been so carefree. :
Twin lights followed each turn of the
bus as it wove its way through the little
mill town and headed toward the open
country.
When Helen’s friends got off, the lights
hovered at a discreet distance and re-
sumed their trail when the bus started.
Helen was the sole
passenger at the end
of the line. She spoke
a cheery good-night to
the driver and -started
up the road to her
home. Her low heels
clicked on the _ hard
surface and a gust of
wind whipped the edges
of her thin summer skirt.
She was half-way up
the road before she no-
ticed that a car had
turned at the top of the
hill and was now coming
back toward. her.
While in itself a car
was not unusual, Helen
recalled the attempted
pick-up in town and
quickened her _ steps.
apn
“¥ cannot intervene. This
was one of the most hor-
rible crimes,” said Gover-
nor Cherry (above)
COURSON
When the car came close, and she saw
that it was the same vehicle, a black
Ford coupe with one headlight dimmer
than the other, she tried to scramble
up a ten-foot embankment that led to a
neighbor’s yard.
The car stopped and a figure stepped
out.. The girl screamed when she saw
a hand clawing toward her. Then some-
thing struck her hard across the mouth,
fingernails dug into her cheeks as she
was dragged down the slope. She tugged
at the hand, twisted her head, but strong
fingers choked her with
an iron grip. Slowly,
relentlessly, she was
forced into the car. The
waiting driver was but
a blurred shadow and
before she could see his
features, a blindfold was
clamped over her eyes.
“Please,” she begged,
‘“please let me go. My
mother is waiting for
me.”
“Well, whaddya
know—won’t that be too
bad,” came the answer,
punctuated by a brutal
blow. :
Struggling, she was
pushed to the floor
boards and the (Con-
tinued on page 80)
As she held the photo in her trembling hand, the terror-stricken girl
told Special Agents of the FBI: “I’ve seen that face every night in
my sleep. He was in front of. me when the blindfold slipped down”
19
Bly SFY9
ee a a
80
Night of Horror:
(Continued from page 19) car started off.
How far they drove she had no way of
knowing. Time was a nightmare of fear,
climaxed by the sound of the tires scrap-
ing gravel as they turned into a rough
country road.
Then the car stopped.
Helen felt herself lifted up and carried
to the ground outside. The rough under-
brush tore at her legs; she heard the car
start and the sound of the motor drift
off into the distance. Left alone with a
man whose steel fingers gripped her arms,
she heard him whisper, “My friend went
off to get some booze and gas. He won’t
be long.”
“Please, mister, please let me go,” she
begged.
The man laughed, lit a cigarette and
“I’ve beaten two
raps,” was boast
that helped police
find this fugitive
blew the smoke into her face. Whenever
she made a move he gave her arm another
twist to remind her of her plight.
She begged him to tell her what they
were going to do to her, but he only
laughed and said, “You'll find out.”
There was the rustle of wind in the
trees and the high-pitched drone of night
insects. From the distance came the sound
of the returning car. She felt it stop close
by, heard the door open, and the crunch
of footsteps on the gravel road. A hand
lifted her chin and she felt the rim of a
bottle close to her mouth. “Do you
good—drink it,’ the voice urged. She
pressed her lips tight shut. Then some-
thing hard cracked against the side of
her head, and she sank to the ground.
After that the night became a thing be-
yond horror. Subjected to torture and
abuse of a nature that is unprintable, she
was finally begging to be killed rather
than be forced to suffer any further.
When she was dragged back to the car,
she was placed on the front seat and
brutal attempts were again made to force
liquor down her throat. The stuff choked
and gagged her until her brain reeled.
As the car sped through the night she
lapsed into a half sleep. She dozed, and
as she related afterwards, she had a dream
that was a remarkable vision of doom.
In it she saw two men walking as through
G.. MMe 5
The strange vision was shattered by the
reality of what was happening to her
when the-car stopped a second time and
her captors abused her in unspeakable
fashion. By now in her tortured mind she
was certain that she was going to die.
No longer able to walk, she had to be
carried back to the car. The two men
went around to the back of the vehicle
to smoke their cigarettes and talk. She
heard the murmur of voices in argument.
One said, “Let’s get it over with. We might
as well kill her.”
The words cut like a whiplash. She
lay still, not daring to breathe as she
waited for the next*move. But the voices
drifted off into further argument.’ She
remembered her blindfold and tried to
loosen it, but before she could come
to grips with the knot at the back of her
head, the men were coming back. She
stretched out her hands, pretending to
be asleep. As she did so, her fingers en-
countered a strange object—round and
soft to the touch, it“Bave a little squeak
when she pressed it. It took some moments
to realize that it was a child’s toy rubber
ball. It was something that she remem-
bered throughout the events that fol-
lowed.
While her captors took turns driving,
they boasted of their long prison records.
“T just escaped from Alcatraz,” said one.
His companion laughed.
The ride continued through the night,
twisting and turning over mountain roads.
Toward daybreak the car stopped, while
the girl’s captors indulged in renewed
acts of torture and abuse. A knife was
placed against her flesh and deep cuts
inflicted on her legs. As she rolled, scream-
ing, the blindfold slipped from her eyes.
Hovering above her she saw the face of
a man with a receding chin. She stared
into swollen blue eyes set over a cruel,
weak mouth.
“Get-a damn good look,” was his taunt.
She stared at the face, trying to impress
every detail on her memory as the blind-
fold was clamped down. Then came a
blow on the side of her head, and again
she lost consciousness,
When she came to she was back in the
car. The tires were humming on a smooth-
surfaced road. From the faint gray line at
the bottom of the mask she could sense
that dawn was approaching. After a time
the car stopped and rough hands thrust
her outside. “This is the end,” said a
voice. “Start moving and don’t look back.
If you turn around you'll get shot.”
With that the blindfold was suddenly
removed, and she was given a push that
sent her sprawling. She got up, started
to run toward a cornfield that loomed
ahead. She had got past the first few
rows of shoulder-high tassels when she
stumbled and fell. She tried to get up,
but her legs wouldn’t move. She lay
there praying that a house might be near,
that someone would find her and that
by some miracle she would get home to
her father and mother.
DAM WALTON, whose farm was on
the outskirts of Bristol, Tennessee, was
usually an early riser. But on this morning
of August 24th, 1946, he was up at the
crack of dawn. There were strange sounds
coming from the roadside and he thought
that some animal might be hurt. He got
out of bed quietly so as not to disturb
his wife, slipped on coat and trousers and
went to the front door. He opened it and
listened. The noises were so peculiar
that he took a shotgun from the rack
beside the door before stepping outside.
The majestic peaks of the distant Great
Smokies masked the’ rising sun and the
light was still thin. Holding the gun in a
tight grip he threaded his way through the
cornfield toward the sound. He was a
dozen strides from the road when he saw
something move. He hurried forward, and
when he saw a young girl struggling to
her knees he dropped the gun. “Help me,
please, somebody help me,” she kept re-
peating. Her clothing was half torn from
her body and there were deep slashes
across her legs.
Walton put his arm around the girl
and led her to the house, where for the
next half-hour he and his wife consoled
and comforted her, trying to ease her tor-
tured mind and body.
“T’ve got to get home,” she repeated.
But home was a long way off. Motherly
Mrs, Walton treated her wounds as best
she could and brought out fresh, clean
clothing to replace her torn garments.
It was late in the afternoon before Helen
was able to make the hundred-mile trip
back to Croley, to shocked and_bewildered
parents, who had spent the night in an
agonizing search for her. They listened to
her story, and called in Corporal W ¢
McKinney of the North Carolina State
Highway Patrol. McKinney in turn tele-
phoned the Charlotte office of Director J.
Edgar Hoover’s Federal Bureau of Investi-
gation.
The Special Agent-in-Charge, after
learning that the girl’s abductors had
taken her across the state line into Ten-
nessee, immediately dispatched two Bureau
Agents to Croley.
They arrived within a few hours, and
went immediately to Helen’s home. It
was a neat, attractive house set back from
the road on a well-kept lawn with a border
of hedges and flowers. Helen’s room was
gay with chintz curtains and college pen-
nants on the wall. But Helen was a pain-
racked figure, pale as death, with eyes
that were numb with the agony she had
experienced. So distraught was she that
it took the patient investigators seventy-
two hours to piece together the shockinrs
story of brutal sex assaults and tortures
which had made the ride over the desolate
mountain roads to Bristol, Tennessee, one
continuous nightmare of horror.
She described the man she had glimpsed
when the blindfold dropped as six feet
tall, about 165 pounds, with black wavy
hair, and both cheekbones and ears promi-
nent. She thought he was between twenty-
two and twenty-six years old.
She recalled that the car was a black
Ford coupe with a spotlight and a cracked
rear window. By careful questioning the
G-Men also learned that the exhaust was
not muffled, that one of the front head-
lights was not burning brightly, that the
floor mat in the rear of the car had been
removed—she had felt the rough boards—
and that she had also taken hold of what
appeared to be a child’s rubber ball on
the rear seat. In addition, she thought
that the men were armed, for they had
“This is the end,”
he told the girl.
“Start moving.
Don’t look back!”
boasted of carrying machine-guns and
pistols and several times she had heard
sounds like shots as they raced through
the countryside.
The FBI Special Agents now launched
into an extensive investigation that carried
them round the clock.
Corporal McKinney kept right up with
their fast pace. More than once he came
away from an all-night investigation to
resume his highway patrol duty and then
hurry back on the case. With his knowl-
edge of local personalities and sources of
information, the FBI Agents found his
assistance invaluable.
The first break came four days after
Helen’s return when, after fruitlessly
questioning a score of potential witnesses,
they found a local taxi-driver who recalled
having seen two “tough-looking char-
acters” cruising about the streets during
the late afternoon and early evening of
August 23rd.
assim
He explain
dents had ask
house wv
liquor, |
that the
that time a
with the ty
who, learnins
suggested th:
travel with 1
“T didn’t lik
told the G-l
license num!
he read it of!
lina 542-720.
While the
to state high
G-Men sough
cab passeng<
that evenin;
learned that
seen in the
brief ride w
of whom hac
“two raps” a’
of the state.
Since the |
description o
time in hurr
the records c
Poring ove
orderly hear
of one perso:
tals. In Supe
showed that
Vernon Litte
and with v
had been fo
But was h
Ford coupe’
The Bure:
photograph °
the victim, |}
picture wit!
one of Mar
River, Nort
name had ;
license plate
Helen wa
from the t
ductors
throug
rigid.
photograph
“T've seen
sleep. He \
blindfold sli
The photo
pect, howev«
She explain:
for her to ic
only caught
of his head
placed.
However,
his passenge
along with !
there was =<
were involv
torture. Ac:
veloped, th:
complaint a:
the U. S. C
on August
fugitives la
Litteral h
tered throug
being made
that on Aue
attack on t)
for disorder
a sixty-day
at Boone, d:
tains.
Before the
at the camp
was tall anc
ish-blue eye
His first r
ally any pa:
The G-Me
SRPOnreSmaneee eee or —_
HERE WILL I DWELL
It was later told that Isaac must have thought he was to be
tested in the same manner as had his father and would be released
when he did not confess, for he appeared to be in a jovial mood
until the hour of execution.
With hands tied behind him, he was led into the jail yard and
placed in the shadow of the rope. Nearby stood the pine coffin |
which had been prepared for the occasion. Twenty minutes were’
allotted the prisoner for final remarks. In an unemotional manner
the boy reiterated his innocence, stated that he blamed no one
for his conviction, even complimented the judge on the conduct of
the trial and then thanked him for his advice from which he said
he had profited.
At the end of the allotted time, the rope was placed around the
prisoner’s neck. Sheriff McCall raised his arms to pull the cus-
tomary cap over Isaac’s face when he protested that the rope was
too tight and that he wanted nothing over his face. The sheriff
offered little solace and remonstrated that it was his duty to use
the cap and that ere long the rope would be much tighter. With
_ these final words Isaac seemed to realize there would be no re-
prieve and his head sank to his breast while his entire being
dropped in resignation of his fate. The sheriff, as a final gesture,
shook the prisoner’s pinioned hand, then descended the steps and
cut the cord which caused the drop to fall instantly, throwing the
prisoner about four feet into the air.
He apparently died quickly for there was no struggle or groans.
Although there appeared to be no signs of life after eleven minutes,
the body was not removed until a full half hour had elapsed. Then
it was taken down and placed in a pine coffin which had been
readied for the occasion and placed on display on the street in
front of the jail where the curiosity seekers had a “field day”. To
their chagrin the body presented no signs of horror which had been
endured for the eyes were closed and the countenance appeared
extremely peaceful.
At nightfall the coffin was carried to the orchard. of one of the
local citizens and there buried. When asked why he wanted it
interred on his property, he replied that he had been looking for
a long while for somethi g§ with which to frighten away thieves,
and at last he had found it.
The jail was frequently empty during these years.
Citizens of Lenoir took an active interest in town affairs. Town
meetings were held often. In 1875 Lenoir’s first mayor, of record,
was elected, Col. C. A. Cilley; commissioners were Dr. J. C. New-
land, G. W. F. Harper, and S. F. Clarke. Other mayors are:
G. W. F. Harper, 1886; W. C. Newland, 1887: W. C. Erwin, 1888:
- 154 -
THE STORY OF CALDWELL COUNTY
J. L. Nelson, 1889; P. J. Johnson, 1890; Edmund Jones, 1891; W. L.
Wakefield, 1892; P. J. Johnson, 1893; James R. Widby, 1894-1898;
KE. A. Poe, 1899-1900; W. C. Newland, 1901-1902; James V. McCall,
1903; E. A. Poe, 1906-1907; Thomas M. Newland, 1908; James V.
McCall, 1910; R. M. Tuttle, 1912; Mark Squires, 1913; B. F. Wil-
liams, 1914-1916; W. J. Lenoir, 1917-1919; J. T. Pritchett, 1920-1921:
V. D. Guire, 1922-1926; L. H. Wall, 1927-1928; B. F. Williams, 1929-
1930; L. H. Wall, 1931-1932; W. J. Lenoir, 1933-1936; Earl Tate,
1937-1956, who has served longer than any other person.
Property values of 1876, Sept. 7:
Acres of land 250,761, valuation $491,365. Value of township
property $33,905. Horses 976, valuation $48,171. Mules 647, valua-
tion $35,861. Jacks 14, valuation $665. Jennets 26, valuation, $4,583.
No goats. Cattle 4,447, valuation $29,841. Hogs 9,723, valuation
$10,583. Sheep 5,348, valuation $4,465. Value of family utensils
and etc. $90,000. Money on hand or on deposit $15,908. Solvent
credits $54,636. Stock in incorporated companies $2,300. Other
personal property $18,560. No railroad franchise. No income and
profits. Total valuation of personal and real: property $839,701.
Listed polls, white 838, colored 117. County tax $7,300.51.
A strange fact is the listing of the official census in 1880 which
numbered 422 people in Lenoir, showing 24 less than the census
in 1870 when 446 were listed.
At a meeting in April of 1885 Thomas M. Vance, son of: Gover-
nor Vance, was elected Mayor, and Dr. A. A. Scroggs, superintend-
ent of health.
Election days were usually rough and most women stayed home
off the street.
In 1889 Caldwell’s wealth was totaled with the valuation of all
real and personal property owned by whites as $1,281,185 and that
of the colored persons $13,676.
The Baptist Church, though long in the county, was late get-
ting started in town. In 1889, the Rev. W. A. Poole, a missionary
under the State Baptist Mission Board organized the church. For
the first five years Rev. I. W. Thomas served as pastor, preaching
Saturday and Sunday morning and night in each month. There
was an original membership of eighteen.
A great interest developed in politics. George Ivey wrote,
“While I was at Lenoir in 1876, Vance and Settle made their
memorable tour in joint debate. I remember only one sentence,
but do remember the tremendous crowd.” In those days almost
everyone went to political speakings, taking basket lunches pre-
paring to spend the day. ... “When I was at Lenoir, Republicans
were called “Radicals” (the name still clings) and about all were
postmasters or revenue officers.”
- 155 -
Here Will | Dwell
(The Story of Caldwell County)
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HERE WILL I DWELL
’ He made an excellent and capable presiding officer of the Senate.
When Avery County was formed, partly from Caldwell, the county
seat was named in his honor. He was instrumental in establishing
Appalachian College at Boone and the building there, Newland
Hall, was named in his honor.
By 1911 the following lawyers were, also, practicing here:
Moses N. Harshaw, a brilliant and eloquent man, Lawrence Wake-
field, Edmund Jones, Thomas Newland, and S. A. Richardson.
Other, later, well known lawyers were L. S. Spurling and J. T.
Pritchett.
On January 25, 1876, a negro known as Isaac Berry was arrested
in Morganton by William Corpening and was brought to Lenoir
to be jailed. This occurrence, in itself, was not eventful, but the
- results made’ momentous history in Caldwell County for Isaac
Berry became the first and only person to be hung in fulfillment
of a sentence in the county.
Isaac was about forty-five years of age and was also a former
slave, who had belonged to Robert Berry (taking the owner’s
name as did most slaves). While still in bondage he married one
of his master’s bondmaids, known as Sophie. As long as Isaac and
' Sophie remained in slavery their marriage seemed to be as happy
as the average. There were several children born to them. But
with emancipation Isaac felt the need to test his new found free-
dom, occasionally. Witnesses stated that Sophie became suspicious
of these frequent excursions and often, upon her husband’s return,
accused him vehemently of pursuing other charms. It was reported
that Isaac had threatened to hush her permanently unless she
ceased her nagging, which, like most women’s, only increased in
volume when suppressed.
When neighbors learned that neither Sophie nor Isaac could
be found at their home in Lovelady (Granite Falls), an investiga-
tion was started. The small cabin showed signs of a desperate
struggle, chairs and tables were overturned and broken, smashed
articles laying in broken heaps, and blood dried in speckled spots.
At the foot of an embankment, buried in mud and covered
with pine boughs, Sophie was found, with every indication that she
had been murdered by blows from a heavy object, such as a stick
of wood.
Isaac was not to be found and a reward of $400 was posted for
his apprehension. The Coroner, when holding his examination,
questioned all the negroes in the ty but Isaac, for he still
remained at large.
His frail, aged father was dragged out and beaten by an aroused
mob in an attempt to force him to tell the whereabouts of his son.
When the reply was not forthcoming, the terrified old man was
~ 452°.
THE STORY OF CALDWELL COUNTY
hung by the neck for a few seconds, which almost resulted in his
death, until the crowd realized there was nothing he knew to
reveal. Released in a gasping, suffocating condition, the shock left
him weak and ill for many months.
On April 20, the trial ended. It had provoked great interest,
far and wide, with people coming for miles around. Prominent
lawyers in their high top beaver hats and “cut-a-way” coats, with
watch chains dangling in a fashionable manner and smoking large
black cigars, attended court that week. McCorkle and Linney
defended Isaac eloquently, but Solicitor W. H. Cowles presented
such conclusive evidence that the jury felt there could be no possi-
bility of his innocence, although Isaac steadfastly, from. the moment
of his apprehension, until the end of the trial, maintained that he
was not guilty. After a short recess the jury returned with the
verdict of guilty. When Isaac was asked by the judge whether
there was any reason why he should not be served the death sen-
tence, he replied that he was not guilty of charge, and requested
that his friends be permitted to visit him while he remained in jail.
The judge then sentenced the prisoner to be hanged on Friday,
June 1. Dr. John Blair, a young physician, was notified to be on
hand to pronounce life extinct at the proper time.
On Saturday, the following day, Sheriff McCall placed upon
Isaac the customary chain and ankle bracelets. During the week,
Isaac and another prisoner, James Laxton, who, also, was hanged
later at Statesville, almost succeeded in escaping by filing the heads
of the iron bolts which held the bars. With success within reach, the
prisoners found themselves confronted with guards who had been
informed of the attempt by other prisoners. They were put in
stronger irons and four extra guards were placed on duty.
Excitement grew increasingly great during the week. Various
ministers of the community endeavored to administer spiritual
comfort to Isaac, but none of them was successful in reaching
him, although he, himself, professed to be a preacher. Neither to
them nor to anyone else did he ever admit his guilt.
Meanwhile the building of the gallows in the jail yard caused
eyes to widen and hearts to pound in contemplation of the grue-
some event. To the dismay of a great many people the execution
was to be a private affair with only six witnesses and twenty-five
guards to be present.
‘June 1 proved to be a typical, sunny cool day in Lenoir and
found the town filled with greatest push and press of crowds it
had ever known in spite of the fact that the hanging itself was not
to be a public affair. By sunrise the streets were filled with the
clatter of lumbering, tightly packed wagons, fast eae surreys,
and the rhythmic sound of horses’ hoofs.
- 153 -
biGGs brotners
See ee ee ee
—
PHANTOM TRAIL OF
‘THE |
CAROLINA
~
KILLERS
BY:
‘HAL EVANS.
of Jamestown, North Carolina, that night of Feb-
ruary 19, 1943, when an automobile braked to a
halt in front of the grocery store operated by
E. J. Swanson.
While the driver of the car remained under the
steering wheel, two young men got out and entered
the store. The only persons in the small grocery were
E. J. Swanson, the owner; Mrs. Swanson, who sat knit-
ting in a rockingchair near the meat counter; and O. M.
Bundy, secretary-treasurer of the Oakdale Cotton Mill,
who had stopped by to get a can of tobacco.
Swanson was busy arranging his stock of goods on
the shelves when the pair of young strangers stepped
up to the counter.
| Be had closed down on the -small village
Oy ces hilealine
7 4. 3 Ms . Le C 71 ¢ 4
MESSER, gassed NCSP (Guilford) March 9, 1945
WILLIAM D. BIGGS——
Police officials felt certain they'd picked up
a blotted-out trail when they saw him driving a
blue Ford sedan with a big dent in the back of it.
He turned around and inquired affably: “What can
I do for you?”
“Gimme a pack of Camels,” one of the men said.
The storekeeper produced the pack of cigarettes and
was in the process of making change for half a dollar
when a gruff voice demanded: “Stick ’em up! No
funny business!”
Swanson looked up into the muzzle of a shiny auto-
matic held in the hand of the slender, pale-faced young
man with the light-blue eyes. The other gunman
produced a revolver and trained it on Mrs. Swanson and
Bundy, admonishing them to remain still and be quiet.
Swanson was not the type to give up easily, despite
danger. Under the counter was a pistol which he kept
for such emergencies. He decided to make a try for
Q These three misguided youths were looking for
FE the pisto
did so, th
over beh
the weary
son’s bod
Then t}
Stared at
q buddy w}
E The tw
; cash dra
where the
4 and Dori:
Regaini
the waitir
the direct
“A matter of robbery and murder,”
Chaney replied. “What’s your name
‘and where are you from?”
he man gave his name as William
& of Reidsville, and insisted he had
taeen no part in any crime.
“We know that this is the car used
in a filling station holdup outside
Danville this morning,’ Chaney an-
nounced.
Young Biggs paled. “I guess I might
as well tell you the truth,” he stam-
mered. “We pulled the robbery, all
right, but we didn’t have anything to
do with ‘any murder.”
Pressed for details the youth ex-
plained that the other two members of
the holdup trio were his brother Elmer
and a friend, John Messer. The latter
two had gone to Washington. directly
after the filling station robbery to
visit a relative.
AKEN to the Danville jail, the 19-
year-old suspect was questioned
further, but stoutly denied that he and
his companions were involved in the
vanson murder. __
Tones secured the address of the
ishington relative, and notified au-
_orities there to pick up the other two
suspects. Meanwhile Chaney informed
Sheriff Story of the arrest.
Forty-five minutes later the Wash-
n police reported that the two
Ins had left the relative’s home
again. They were believed headed
back toward Reidsville in an open
truck loaded with luggage and boxes.
A detail of men was dispatched to
cover the highway out of Danville. It
was past midnight when the weary
officers, after having watched hun-
dreds of trucks pass, finally saw the
one they had been waiting for. The
clear moonlight showed them, how-
ever, that the driver appeared to be its
only occupant. Was it the wrong truck
after all? If not, where were young
Biggs and Messer?
“t'm satisfied that’s the truck,”
Jones said. “That’s probably the rela-
tive driving. The boys may be in the
back hiding among the luggage. Let’s
follow and see if it heads into North
Carolina.”
The officers climbed into their cars
and trailed the truck. It passed on
through Danville, then turned and.
headed across the state line in the di-
rection of Reidsville.
“We don’t want to jump the gun,”
Jones cautioned. “If Biggs and Messer
are hiding they may be ready to shoot
Th aait.”
s before reaching Reidsville, the
truck swung off the hard-surfaced
highway onto a dirt road.
By two-way radio Jones communi-
cated with the officers in the other car
and outlined his plan of action. “We'll
go around them, then you come up
CURRENT DETECTIVE
from jhe: rear, he instructed, — Be
ready to shoot if necessary.”
At a given signal, Jones pulled his
ear around in front of the truck and
edged it into the ditch. With lightning
speed, the officers tumbled out of their
cars and rushed the pick-up truck.
“Come out with your hands up!”
Jones ordered. “We've got you cov-
ered!”
The elderly driver opened the door
and stepped out, his hands high over
his head. Chaney stepped to the rear
of the vehicle and threw back some
quilts. The light from the officers’
flashlights fell on the apprehensive
faces of two young men who lay hud-
dled on the floor.
“Don’t shoot,” one said. A moment
later the two suspects, both bare-
headed, emerged from their hiding
place. A quick search of their clothing
revealed a .32 Owl Head pistol and a
.25 automatic revolver. The Ow] Head
pistol, Jones recalled, was of the same
caliber as that used to kill Swanson.
The two youths identified them-
selves as Elmer Biggs, Jr., 20, and
John Edgar Messer, 19. The driver of
the truck was a relative of Biggs.
Taken to Danville where they were
confronted with William Biggs’ con-
fession of the Bridgers robbery, Elmer
Biggs and John .Messer admitted
their guilt in that crime. They force-
fully denied complicity in the Swan-
son murder, however.
Sheriff Story, notified of the cap-
ture, sped to Danville, accompanied
by District Solicitor J. Lee Wilson,
Deputies Ray Nance and John Jones,
and SBI agents H. W. Zimmerman and
Guy Scott.
The sheriff had brought with him
the 32 caliber bullet recovered from
the murdered storekeeper’s body. It
and the gun taken from Messer at the
time of the arrest were rushed to FBI
in Washington for comparative bal-
listics tests.
Throughout the night and early
morning the suspects withstood ques-
tioning and persistently protested in-
nocence of the murder accusation.
The youths were locked up in their
cells, while the investigators awaited a
reply from the FBI., When the report
arrived it brought with it unexpected
news. Tests showed that Messer’s gun
was not the one used in the Swanson
killing.
“We'll have to bring the four eye
witnesses here to see if they can iden-
tify these boys,” Story resolved. -
When the sheriff’s deputies returned
from Jamestown with Mrs. Swanson,
the customer who had been present
at the shooting and the two girls who
had seen the bandits flee, the officers
lined up the three thugs. One by one
the witnesses surveyed them care-
fully. Each of them pointed to William
Biggs and John Messer as the two who
had entered the store on the fatal
night. Messer was identified as the
one who had fired the death dealing
shots. Elmer Biggs was named as the
driver of the escape car.
Faced with this evidence, the three
youthful gunmen broke down. After
conferring among themselves, they
confessed to the murder of the 67-
year-old storekeeper. They admitted
that their motive had been robbery,
but that they had lost their nerve and
fled.
“We left Reidsville the night of
February nineteenth to go to Greens-
boro. We were trying to get work on
the construction at the Army base,”
William Biggs stated. “But there
wasn’t any work available.. We only
had a couple of dollars. Elmer and I
had guns, but I didn’t know Messer
had one in his leather jacket. We de-
cided to make some easy dough by
robbing.a filling station, so we headed
toward High Point.. When we got to
Jamestown we passed the Swanson
store and saw that it looked like a
promising haul. We turned around
and drove up in front of the place.
“We had it all figured out. Elmer
was to wait in the car while Messer
and I went inside: Messer was to buy
a pack of cigarets and I was.to pull out
‘the gun when the old man turned
around to make change. I didn’t know
Messer had a pistol. When he reached
over the counter and shot Swanson I
was scared and ran out the door, He
lost his nerve, too, and ran out behind
me. From there we drove to Stokes
county, where we stayed in hiding.
“After the Swanson job quieted
down in the papers, we decided to rob
a place in Virginia and picked out the
Bridgers gas station.”
A ESSER explained the mystery of
* the two .32 caliber guns. He said
that he tossed the gun used in the
Swanson killing from the car some-
where between Jamestown’ and
Greensboro. Officers searched the
site, but did not find the weapon.
The Biggs brothers and Messer went
on trial for their lives in Guilford
County Superior Court at Greensboro
on May 21, 1943. Judge W. H. 8. Burg-
wyn presided. Two days later a jury,
summoned from Forsyth county, found
them guilty. They were sentenced to
die in the gas chamber.
An appeal was carried to the State
Supreme Court. In the fall of 1943 they
won a new trial on technical errors.
While awaiting the second trial,
William Biggs sawed his way out of a
cell on the fourth floor of the Greens-
boro jail. He tried to escape by tieing
several bed sheets together and lower-
ing himself to the cement driveway
below. Halfway down the make-shift
s the two who
on the fatal
atified as the
death dealing
; named as the
-e, the three
_ jJown. After
omselves, they
jer of the 67-
They admitted
been robbery,
-heir nerve and
the night of
o go to Greens-
to get work on
.e Army base,”
. “But there
lable.. We only
s. Elmer and I
‘'t know Messer
jacket. We de-
easy dough by
1, so we headed
hen we got to
‘he Swanson
looked like a
turned around
of the place.
ved out. Elmer °
+ while Messer
sser was to buy
( was.to pull out
'd man turned
». J didn’t know
en he reached
iot Swanson I
yut the door, He
d ran out behind
drove to Stokes
yed in hiding.
on job quieted
ye decided to rob
id picked out the
d the mystery of
ber guns. He said
gun used in the
m the car some-
Jamestown and
rs searched the
| the weapon.
s and Messer went
lives in Guilford
surt at Greensboro
ige W. H.S. Burg-
days later a jury,
vsyth county, found
were sentenced to
mber.
arried to the State
the fall of 1943 they
n technical errors.
the second trial,
“tig way out of a
- of the Greens-
to escape by tieing
-ogether and lower-
cement driveway
wr the make-shilt
rope, the knots slipped. He tumbled to
the pavement, suffering serious in-
juries.
The three were then transferred to
Central Prison’s death row. ;
' The confessed killers were tried for
the second time in Greensboro on
April 25, 1944, before J udge F. Donald
Phillips. Four days later a jury con-
_ BEAUTY’S RENDEZVOUS —
(Continued from page 47)
such a good, hard working girl that an
incident which occurred three nights
before had remained indelibly printed
on the woman’s mind because of its
incongruity.
On that day Cecelia had behaved
very strangely after receiving a
threatening telephone call. She had
gone deathly pale after hanging up the
receiver, then had said someone was
going to kill her. When the landlady
attempted to question her, however,
she had turned away and refused to
talk any more. No further mention
had been made of the phone call.’ But
the girl had been more than usually
excited about the date she had on the
night of the murder.
Hetherman was joined by Deputy
Templeton who had been searching
the girl’s room in the meantime.
“Nothing there, Chief,” he reported.
He had found the usual possessions of
a normal young girl in the bureau
drawers and a packet of letters which
he had read. But there was nothing
in them to indicate any hidden ro-
mance. He had brought them along
for Hetherman to see, but there were
not even any names among them
which had not already been supplied
by the landlady.
They thanked the woman for her
helpfulness and left.
Back in their car, the Chief sug-
gested they visit Mr. Trudeau. “It’s
possible,” he pointed out, “that the girl
confided more in him than she did in
the woman at the rooming house. He
may know something about this cab
driver. I think he’s our man, but we
have a better chance of proving it. if
we can get a line on him before we
pick him up.”
At the address given them, they dis-
covered they had missed Trudeau by
a scant fifteen minutes. He had left
for work, but was expected back early
that afternoon. Hetherman left word
to have Trudeau get in touch with the
police station as soon as he arrived
home.
. whom he instructed to head the search
CURRENT DETECTIVE
victed them of first degree murder.
They were again sentenced to die.
A second appeal was denied by the
State Supreme Court in December
1944. Executive clemency was not
forthcoming and three months later,
on, March 5, 1945, the three youths
paid with their lives in the lethal gas
chamber for the storekeeper’s murder.
“We'll have to go ahead without
talking to him,” Hetherman said. “Our
job is to locate that cab driver at once.
We have an idea of his name and it
should be fairly simple.. I’m afraid
that boy is going to have some pretty
tall explaining to do.”
Back at headquarters, the two offi-
cers found visitors awaiting them.
Lieutenants Joseph Ferrari and John
F. Stokes along with official photo-
grapher Warren Tolken, of the State
Police, had stopped there rather than
going directly to the scene of the crime.
Hetherman greeted them. Then
called in Inspector Richard Healey,
for the cab driver and also to check -
the victim’s movements during the
day and evening of the murder.
“In the meantime,” he said, turning
to the State Officers, “we'll go back to
the scene and I can show you men
around.”
A little later Lieutenant Stokes
carefully squatted by the side of the
road and pointed at the ground.
“Glad you-called us in,” he said.
‘There’s a clear set of tracks here,
frozen solid in the mud. The treads |
on the rear tires were of different de-
signs. I’d say offhand it was a small
car, old model. We’ll photograph them
at once and also make moulages.”
For more than an hour the state
men worked. Carefully they. made
records of both sets of tire tracks as
well as a number of footprints. But:
just as Hetherman had predicted the
latter turned out to have been made
by their own deputies and by the two
milkmen. This was discouraging, but
investigators still ‘clung to the hope
that the set of tire tracks might pro-
vide a good lead.
Gathering up their equipment, the
men returned to the station house
where they were met by Inspector
Healey whose ‘search had uncovered
a surprising angle that threw the
whole case into sharp new focus.
The cab driver, John Spiker, had
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1]
OPT Y iii oo wink a « Cbnedon hbo
been located. He was a powerfully
l Iv Our Customers Particip.«
chief deputy circulated amony Gragy’s
friends. At last they ran across a man
who told them that the cement plant
orker was a strong swimmer.
“I’m supposed to be good myself,”
he said, “but this spring we went on a
picnic and Gragg copped all the prizes
in the swimming contests.”
How could Gragg dispute something
which was a matter of record?
The sheriff, now certain he was on
the right trail, went to the hospital
and obtained a written report of the
autopsy. Then, with Dallas city detec-
tives Bullock and Warnick, he: ap-
peared in MacNicoll’s office.
“This report,” he said, referring to
the autopsy, “says Mrs. Gragg and her
son had been dead three hours when
taken from that borrow pit. If you re-
call, their bodies were recovered not
more than half an hour after Gragg
telephoned in the alarm.”
Schmid had had access-to this in-
formation early in the investigation,
but he realized its relative lack of
merit unless it could be coupled with
further substantiating evidence of con- '
‘licting testimony and with a well es-
‘ablished motive. Now these had been
orovided and the autopsy report could
assume its rightful place in the as-
tounding array of damaging evidence.
“These two officers,” Schmid contin-
ed, indicating Warnick and Bullock
will testify that they sat under a
bridge for four hours.on a clear, quiet
night, not more than 200 yards from
the: borrow pit. They not only saw a
man rowing around alone, but they
heard no shouts for help. Gragg insists
he called as loud as he could.”
He paused and looked toward the
prosecutor with satisfaction. “These
officers amount to virtual eyewit-
nesses. They will dispute Gragg’s con-
tradictory story that his wife and step-
son fell from the boat and that he
shouted for assistance.
(Continued from page 43)
Chaney decided to extend their hunt
over the North Carolina border.
“They might have headed toward
Reidsville,” Jones suggested, “or
ight even be in one of the small
llages in the vicinity. We can’t lose
anything by searching the streets of
communities between here and Reids-
ville.”
Driving slowly, constantly on the
lookout for a blue sedan with a dent
in the back, Allen and Chaney rode ‘to
62
DE:
CURRENT DETECTIVE
“To have a witness, who is able to
produce others, and he will
Gragg could have made an attempt to
save both victims. Gragg is a strong
swimmer.
“On top of that you have the fact
that he told contradictory stories to
Peacock and the liquor store proprie-
tor, burned papers which could have
been incriminating letters and was
never known to do any fishing before
the night of the accident.
' MacNicoll’s was elated. “In addi-
tion,” he said. “We have definitely
established a strong motive. I'll move
against Gragg at once.”
The man was indicted the following
week and trial set for September, 1943.
Two weeks before the trial date, Mil-
ler and Caster went to Mount Pleasant
to get Grace Royce. The girl had dis-
appeared!
Swear
J HERE was nothing to do but obtain
a postponement of Gragg’s trial and
attempt to find the missing witness.
Without her the case might evaporate
in, thin a
Miller and Caster, assigned this
task, searched Mount Pleasant in vain.
All they could learn was that a man
had called for the girl a few days be-
fore and that she had left with him in
his car. But who the man was, they
didn’t know. .
Informed of this, Sheriff Schmid re-
called that Gragg, lodged in the sher-
iff’s jail, had had a frequent visitor—
a man who closely resembled the per-
son who drove away with Grace
Royce.
“This Gragg’s playing his trump
card,” the sheriff told Miller and Cas-
ter. “He had the girl spirited away so
she would be unable to testify. I think
‘that fellow who visited him is respon-
sible. If we find him, we’ll find her.”
Since the identity of Gragg’s visitor
was known, it didn’t take Miller and
TH AC
Pelham, then on to Ruffin and finally
through Stacy.
At Reidsville they were joined by
Chief Allen and his men. For half an
hour six police cars cruised slowly
along the streets and side lanes of the
cigaret city.
Jones, riding with Allen and
Chaney, suddenly pointed ‘to a blue
sedan directly ahead of them and
called out to his colleagues: ‘That
looks like the murder car. But there’s
only one man in it.”
Caster that he, too,
had skipped.
“There’s more than one way to skin
a cat,” Schmid said. “I have a hunch
that girl won't waste much time get-
ting in touch with Gragg.”
The suspect’s mail was watched. At
lony to discover
last a letter for him arrived from
Shawnee, Okla. Miller and Caster
made a fie trip to that city. They
found Grace Royce living in a tourist
camp.
The man who had induced her to
leave Dallas could not be located, and
is still missing, but the girl, induced
to return in order to eliminate any
suspicion from herself, agreed to go
back and testify.
Gragg went to trial on March 15,
1944, before Judge Roy Stout and a
jury.
Schmid, Peace Billo Warnick,
‘several neighbors of Gragg, the liquor
store proprietor and Grace Royce
were the principal witnesses for the
state. Their evidence, pieced together,
represented a strong case of homicide
against Chesley Gragg.
When it came time for the defense
to offer its case, it unexpectedly
rested without calling a witness in
Gragg’s behalf.
The jury deliberated only 12 hours
and brought in a verdict of guilty in
the first degree. It was the first time in
16 years that a man had been con-
demned to death in Dallas on circum-
stantial evidence.
Judge Stout immediately sentenced
Gragg to death in the electric chair at
Huntsville Prison. His attorneys have
appealed the case, but at the time this
story was written, the appeal had not
yet been decided.
To protect the identity of an inno-
cent person involved in this investiga-
.tion, the name Grace Royce is not ac-
tual but fictitious.
Jones tailed the car until it left the
business district. Then he stepped on
the accelerator and forced the other
to the curb.
Their guns ready, the three officers
piled out and surrounded the sedan.
A scowling black-haired youth slid
out. “Say, what's the bie .. .”” he be-
gan, breaking off suddenly when he
saw the officers’ badges. Jones quickly
searched his pockets, but found no
weapon.
“What's this all about anvway?”
seb. Hs
asia
bia ae ed Ribs tee Rte be Rod
126 N.C.
confession. The officers testified no prom-
ises of leniency were made them, and the
judge so found. In State v. Livingston,
202 N.C. 809, 164 S.E. 337, the officer ad-
mitted he told the defendants if they would
tell “it would be lighter on them;” and
in State v. Anderson, 208 N.C. 771, 182
S.E. 643, 648, the State’s witness admitted
he told defendant Overman “it would be
better for him to go ahead and tell it.”
But in the case at bar the record discloses
no admissions by any State’s witness that
inducements of this nature were held out
to the defendants.
At the time the defendants were being
questioned they were not in the custody of
the North Carolina officers but in jail in
Virginia. But, in any event, neither the
fact that they were in custody, nor the
number of officers present (State v. Stef-
anoff, 206 N.C. 443, 174 S.E. 411), nor that
they were persistently questioned (State v.
Exum, 213 N.C. 16, 195 S.E. 7), would be
alone sufficient to render the confessions
incompetent, unless the admissions were
in fact induced by promises of leniency or
some form of compulsion.
I think that the testimony of the State’s
witnesses heard by the trial judge should
be held to constitute some substantial evi-
dence to support his finding of fact that
the defendants’ admissions of guilt were
voluntarily made, and that the court’s rul-
ing on this preliminary question should be
upheld.
SCHENCK and SEAWELL, JJ., con-
cur in dissent.
° KEY NUMBER SYSTEM
4ame
224 N.C. 86
BOARD OF EDUCATION OF CHOWAN
COUNTY v. JOHNSTON.
No. 21.
Supreme Court of North Carolina,
March 1, 1944.
1. Bastards C>104
Prior to enactment of chapter 256,
Public Acts of 1935, when an illegitimate
child died leaving no issue and his mother
had predeceased him, the collateral rela-
tives of the mother could not inherit from
her illegitimate child. G.S. §§ 116-20, to
29 SOUTH EASTERN REPORTER, 2d SERIES
116-25; Pub.Acts 1935, c. 256, § 1 et seq.;
Const. art. 9, § 7.
2. Escheat C6
It is not necessary under North Carolina
laws governing inheritances and escheats,
for the University of North Carolina to in-
stitute an action and have a court of com-
petent jurisdiction to determine whether
or not such inheritance has escheated be-
fore title to inheritance vests in the uni-
versity. G.S. §§ 116-20 to 116-25; Pub.
re aia c. 256, § 1 et seq.; Const. art.
Ȥ 7.
3. Escheat C=2, 7
Where illegitimate child died in 1932,
leaving no children, and her mother pre-
deceased her, realty owned by her escheated
to University of North Carolina and could
not be divested by statute enacted subsce-
quent to her death in favor of child’s uncle,
although university did not institute action
to have its interest in realty escheated prior
to enactment of such statute. G.S. §§ 116-
20 to 116-25, Pub.Acts 1935, c. 256; and c¢.
256, § 3; Const. art. 9, § 7.
eee
Appeal from Superior Court, Chowan
County; C. Everett Thompson, Judge.
Action in ejectment by Board of Educa-
tion of Chowan County against Shirley
Johnston. From a judgment for plaintiff,
defendant appeals.
Affirmed.
This is an action in ejectment. Plaintiff
and defendant claim title through a com-
mon source. The land in controversy was
conveyed to Allen A. Johnston by deed
dated November 4, 1879, and said deed was
duly recorded in the office of the Register
of Deeds of Chowan County, North Caro-
lina.
Allen A. Johnston and his wife, Florence
Johnston, had born unto them two children,
towit, the defendant Shirley Johnston and
Martilda Johnston.
Allen A. Johnston died testate February
13, 1929, and the will was duly probated in
the office of the Clerk of the Superior
Court of Chowan County.
The testator devised the land described
in the complaint filed in this action, in fee
simple, to Dorothy Johnston, his grand-
child, an illegitimate child of his daughter
Martilda, subject, however, to a life estate
devised to his wife, Florence Johnston.
wth tei eos
BOARD OF EDUCATION OF CROW AN COUNTY vy, JOHNSTON N.C. 1297
' 29 S.E.2d 126
Martilda Johnston, the mother of Dor-
othy Johnston, predeceased Dorothy, and
Dorothy died September 9, 1931, at the age
of 18 years, unmarried and childless, leav-
ing Florence Johnston, her grandmother,
and Shirley Johnston, her uncle, surviving
her.
Florence Johnston died’ December 13,
1942, leaving Shirley Johnston, her only
heir at law.
In 1937, the State of North Carolina and
the University of North Carolina conveyed
the land devised by Allen A. Johnston to
Dorothy Johnston, to the Chowan County
Roard of Education, subject to. the life
estate of Florence Johnston, reciting in
said conveyance that the interest of Dor-
othy Johnston in said land had escheated.
After the death of Florence Johnston in
1942, the plaintiff brought this action to
eject defendant, who was in the possession
of said land, claiming title.
There was a verdict and judgment below,
declaring plaintiff to be the owner and en-
titled to immediate possession of the land.
The defendant appeals and assigns error.
\W. D. Pruden, of Edenton, for plain-
tiff,
P. H1. Bell, of Plymouth, for defendant,
appellant.
DENNY, Justice.
The right of succession by escheat to all
property, when there is no wife or husband
or parties entitled to inherit or take under
the statutes of descent and distribution, has
been conferred upon the University of
North Carolina by the State Constitution,
Art. IX, See. 7, and extended by several
statutes which are now G.S. 116-20, 21, 22,
23, 24 and 25, C.S. §§ 5784, 5784(a), 5785,
5786, 5786(1) and 5786(2). In re Neal’s
Will, 182 N.C. 405, 109 S.E. 70, 18 A.L.R.
tf.
[1] Prior to the enactment of Chapter
250, Public Laws of 1935, G.S. 29-1, Rule
10, C.S. § 1654, Rule 10, when an illegiti-
mate child died leaving no issue and his
mother had predeceased: him, the collateral
relatives of the mother could not inherit
from her illegitimate child. Carter v.
Smith, 209 N.C. 788, 185 S.E. 15; Wilson
v. Wilson, 189 N.C. 85, 126 S.E.°181; In
te Neal’s Will, supra; University v. Mark-
ham, 174 N.C. 338, 93 S.E. 845.
{2] If Dorothy Johnston had died after
the enactment of Chapter 256, Public Laws
of 1935, the defendant would have in-
herited her interest in the land now in con-
troversy, subject to the life estate of
Florence Johnston. However, the appel-
lant contends that the interest of Dorothy
Johnston has not escheated to the Uni-
versity of North Carolina, since the Uni-
versity failed to institute an action and ob-
tain a judgment declaring said interest
escheated, prior to the enactment of the
aforesaid Act. Section 3 of the Act con-
tains the following provision: “This act
shall be in full force and effect from and
after its ratification and shall apply to all
estates which have not been actually dis-
tributed prior thereto.” The contention
cannot be sustained. It is not necessary,
under our laws governing inheritances and
escheats, for the University of North Caro-
lina to institute an action and have a
Court of competent jurisdiction to deter-
mine whether or not such an inheritance
has escheated before the title to the in-
heritance vests in the University.
[3] The question involved in this ap-
peal was settled in the case of Carter v.
Smith, supra. Ed L. Carter, the intestate,
an illegitimate child, had died without is-
sue, in 1932, leaving a substantial estate
consisting of both real and personal prop-
erty. The mother of said child had pre-
deceased him. The proceeds from the sale
of the real property and the personal es-
tate were in the hands of the administrator,
subject to the order of the Court, at the
time of the enactment of Chapter 256,
Public Laws of 1935. The appellants con-
tended that since the estate had not been
distributed prior to the enactment of the
aforesaid Act, the University was not en-
titled to the proceeds from the sale of
the real property or to take the personal
property. Ilowever, this Court said [209
N.C. 788, 185 S.E. 18]: “At his death on
August 20, 1932, Ed L. Carter left sur-
viving him no person who was entitled
to his property, real or personal, as his
heir at law or as his next of kin. He
died intestate. He had never married.
He was the only child of Bettie Carter,
who had predeceased him. He was her il-
legitimate son. Under the Constitution and
laws of this state, in force at the death of
Ed. L. Carter, his property, both real and
personal, subject only to the claims of his
creditors, if any, vested immediately in the
University of North Carolina (see la re
Neal’s Will, 182 N.C. 405, 109 S.E. 70, 18
A.L.R. 77), and could not be divested by a
: A 5 Eder GARODN REPORTED oF Renine STATE y. BIGGS N.C. 35!
352.ON.G. 32 SOUTIL EASTERN REPORTER, 2d SERIES Cite as 32 8.F.2d 352 353
claim of plaintiff, who is under age, or for
more than the sums sect out in the judg-
ment. Garland v. Improvement Co., 184
N.C. 551, 556, 115 S.E. 164; Blanchard v.
Peanut Co., 182 N.C. 20, 108 S.E. 332;
Mercer v. Lumber Co., 173 N.C. 49, 91 S.E.
588. The acceptance thereof by the plain-
tiff under these circumstances we do not
think should be held to preclude her from
a trial on the issue as to which the verdict
was sct aside.
There was error in the denial of plain-
tiffs motion for a new trial on the 9th is-
sue, and the ruling of the trial court in
that respect is reversed,
Reversed.
° KEY NUMBER SYSTEM
4ums
224 N.C. 722
STATE v. BIGGS et al.
No. 650.
Supreme Court of North Carolina,
Dee, 18, 194k
{. Homicide C235
Evidence that store owner was felon-
iously slain in perpetration of or attempt
to perpetrate robbery established offense of
first degree murder. G.S. § 14-17,
2. Homicide C268
In murder prosecution, state’s evidence
as to commission of offense charged and
defendants’ identification therewith was
sufficiently definite to require submission of
case to jury as to cach of defendants. G.
S. § 14-17.
3. Homicide <=308(5)
In murder prosecution, where all tes-
timony tended to show that deceased was
feloniously slain in attempt to perpetrate
robbery, court properly denied defendant's
requested instruction that jury might ren-
der verdict of guilty of second degree mur-
der and correctly charged that only ver-
dict jury could render on evidence was
guilty of first degree murder or not guilty.
G.S. § 14-17.
4. Criminal law C=369(15), 370, 371(4)
In prosecution for murder of. store-
keeper in attempt to perpetrate holdup and
robbery, evidence that defendants perpe-
trated holdup and robbery of filling sta-
tion operator in same manner 27 days aft-
er homicide was competent on questions
of defendants’ intent, guilty knowledge,
and identification. G.S. § 14-17.
5. Criminal law ©=369({5), 370, 371(1)
Generally, evidence of distinct substan-
tive offense is inadmissible to prove an-
other independent crime disconnected from
and unrelated to such offense, but proof
of commission of like offenses may be com-
petent to show intent, design, guilty knowl-
edge or identity of person or crime, though
committed subsequent to offense charged.
G.S. § 14-17.
6. Criminal law ©=369(15), 370, 371(1)
Evidence of defendants’ commission of
another crime than that charged is not
incompetent on questions of their intent,
guilty knowledge and identification on
ground that such evidence tends to impeach
defendants’ character,
7. Criminal law C2777!/
Au instruction, correctly stating legal
principles applicable to various phases of
evidence and fairly presenting evidence
and contentions of the state and defend-
ants, was not erroncous as failing to state
evidence in plain and correct manner and
to declare and explain law arising there-
on in compliance with statute. G.S. § 1-
180.
8. Criminal law ©C770(3)
A clear instruction, applying law to
evidence and stating respective parties’ po-
sitions as to controlling features making
for ascertainment of facts, sufficiently de-
clares and explains law. G.S. § 1-180.
9. Criminal law C=844(1)
An exception to instruction as failing
to state evidence given in plain and cor-
rect manner and to declare and explain
law arising thercon was insuflicient as
broadside for failure to specify supposed
defects in instruction, G.S. § 1-180.
10. Criminal law C1178
Assignments of error in admission of
evidence, not preserved by reference there-
to in defendants’ brief on appeal from
conviction, are deemed abandoned,
{1. Homicide C=253(1)
Evidence supported convictions of first
degree murder.
Appeal from Superior Court, Guilford
County; F. D. Phillips, Judge.
Elmer Hardie Biggs, Jr., William Dal-
ton Biggs, and John Edgar Messer were
convicted of murder in the first degree,
and they appeal.
No error.
The defendants were charged with the
murder of E. J. Swanson. The jury re-
turned verdict of guilty of murder in the
first degree as to each defendant.
This case was here at Fall Term 1944,
and is reported in 224 N.C. 23, 29 S.E.
2d 121. On that appeal error was found
in the admission in evidence of certain
confessions which were held not voluntary,
and a new trial was ordered.
In the trial now under consideration evi-
denee was offered by the State tending to
show that the deceased was shot and killed
in the perpetration or attempt to perpetrate
a robbery, in which all three of the de-
fendants participated. It is not deemed
necessary to recite here all the testimony
which appears of record, but a brief resume
of the material evidence pertinent to the
questions presented by the appeal may be
stated as follows:
On the night of February 19, 1943, be-
tween 8:30 and 9 o'clock, E. J. Swanson,
then 67 years of age, was in his store
in the village of Jamestown. There was
an electric light in the store and one on
the porch. Swanson’s wife and a custom-
r, O. M. Bundy, were present in the store.
Two men, later identified as defendants,
Wm. Dalton Biggs and John Edgar Mes-
ser, came in the front door, and one of
them ealled for a package of cigarettes.
Swanson, who was behind the counter near
the cash register, waited on them and made
change for a dollar bill. They then aske:l
for matches and as Swanson put the mat-
ches on the counter Win. Dalton Biggs
drew a pistol, pointed it at Bundy and
told him to put his hands up, saying, “This
is a hold-up.” Swanson made some in-
articulate sound and cither sank or leaned
down behind the counter, and Messer
reached over the counter and shot him
twice and killed him. The two defendants
then ran out of the store. Two other wit-
nesses, Doris and Mildred Ray, who lived
nearby, were at this moment coming across
the street to the store. They saw a blue
lord coach fifty feet from the store, and
Doris Ray recognized and later identified
the defendant Elmer Biggs as the man sit-
382 S.B.2d—23
ting under the wheel. The moon was shin-
ing bright, the weather was warm, the glass
of the automobile was down and she had
a clear view of this man. Half way across
the street these witnesses heard a noise
in the store, hurried to it, and saw the
defendants, Wm. Dalton Biggs and Mes-
ser, run out, passing within ten feet of
them, and get in the automobile and drive
away.
It further appeared in evidence that on
March 3lst following, these four witness-
es went to Danville, Virginia, and identified
these three defendants as the men_ they
had testified as having seen in Jamestown
the night of the homicide. Defendants
were then in custody and the witnesses
picked them out froma group. When Mrs.
Swanson told Messer and Wim. Dalton
Biges she recognized them as the ones who
entered the store and shot her husband
they hung their heads and said nothing.
When Doris Ray told Elmer Hardie Biggs
she identified him as the one she saw un-
der the wheel of the automobile in James-
town he asked, “Are you sure of that ?”,
and when she said, “I am_ positive,” he
said, ‘Well, there is nothing else I can
say.”
Evidence was offered and admitted over
objection that on March 16th, 1943, twen-
ty-seven days after the homicide at James-
town, these three defendants were observed
driving in a blue Ford coach automobile
in Danville, Virginia, and that elmer Har-
die Biggs was under the wheel and Mes-
ser and Wm. Dalton Biggs were on the
seat beside him; that shortly thereafter
Messer and Wim. Dalton Biggs entered the
filling station of R. I. Barber and asked
for smoking tobacco. Barber waited on
them, and they drew pistols on him, say-
ing it was a hold-up, and forced him to
open the cash drawer and robbed him of
$140. They then backed out of the door
and told Barber not to follow. They start-
ed running in the direction of the place
where the other witness had seen the au-
tomobile, and Barber picked up his own
pistol, ran out the back door and shot at
them, and they shot back at him three
times. The witnesses identified the de-
fendants as the men they had seen on this
occasion in Danville.
There was also evidence that the fol-
lowing morning, March 17th, Wm. Dalton
siges was arrested in Reidsville in a blue
1938 model Ford coach, identified as the
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same automobile in which the defendants
were seen in Danville, and Messer and El-
mer’ Hardie Biggs were arrested March
18th, near Reidsville, in a closed paneled
truck. In the truck beside them was found
a photograph of Messer and Elmer Har-
die Biggs, each with a pistol in his hand.
Mere was also evidence that defendant
Win. Dalton Biggs while awaiting trial had
attempting to escape from jail.
The defendants offered no evidence and
did not go on the stand. The jury re-
turned verdict of guilty of murder in the
first degree as to all three of the defend-
ants. The court pronounced sentence of
death by asphyxiation as provided by law,
and the defendants appealed.
Harry MeMullan, Atty. Gen., and
Hughes J. Rhodes and Ralph Moody, Asst.
Attys. Gen., for the State.
R. R. King, Jr., of Greensboro, and P.
W. Glidewell, of Reidsville, for defendants.
DEVIN, Justice.
[1] The defendants were tried under a
bill of indictment charging them with the
murder of Te. J. Swanson. The evidence
offered tended to show that Swanson was
feloniously slain, and that the murder was
committed in the perpetration or attempt
to perpetrate a robbery. This brought the
offense within the specific language of G.
S. § 14-17, and constituted it by force of
the statute murder in the first degree.
State v. Alston, 215 N.C. 713, 3 S.1.2d
11. The question with which the defend-
ants are chiefly concerned is whether there
was sufficient evidence to connect them or
either of them with the crime charged,
and, if so, whether there was error in law
in the trial which would entitle them to
another hearing.
The defendants noted numerous excep-
tions in the course of the trial, and in their
appeal have assigned error in many rul-
ings of the trial court. However, these are
presented in their well prepared brief in
four groups which we will now consider,
[2] 1. The defendants excepted to the
denial of their motion for judgment of
nonsuit on the ground that the evidence
of identification of the defendants by the
witnesses at the scene of the homicide was
insufficient to carry conviction by reason
of discrepancics and inaccuracies in cer-
tain particulars pointed out, especially in
the case of Elmer Hardie Biggs. But an
3? SOUTIE EASTERN TUSPORTER, 9d SENEHES
examination of the testimony offered by
the State shows that the commission of
the offense charged and the identification
of the defendants therewith was sufficient-
ly definite and positive to require submis-
sion of the case to the jury as to cach
one of the defendants.
[3] 2. Defendants’ prayer for instruc-
tion to the jury that they might render
verdict of guilty of murder in the second
degree was properly denied. AIL the tes-
timony tended to show that the felonious
slaying of the deceased was committed in
an attempt to perpetrate a robbery. There
was no other view presented by the evi-
denee. This brought the crime within the
statutory definition of murder in the first
degree. Ilence the court correctly charged
that if the defendants were guilty at all
they were guilty of murder in the first
degree, and that the only verdict the jury
could render on the evidence was guilty
of murder in the first degree or not guilty.
The defendants offered no evidence and
the defense was necessarily confined to con-
testing the credibility and weight of the
State’s evidence and the sufficiency of the
identification of the defendants as the per-
petrators or active participants in the crime
charged. There was no evidence upon
which a verdict of guilty of murder in
the second degree could properly be found-
ed. The trial judge’s ruling was in ac-
cord with the decisions of this Court.
State v. Smith, 223 N.C. 457, 27 S.F.2d
114; State v. Manning, 221 N.C. 70, 18
S.12.2d 821; State v. Miller, 219 N.C. 514,
14 S.E.2d 522; State v. Satterfield, 207
N.C. 118, 176 S.E. 466; State v. Ferrell,
205 N.C. 640, 172 S.E. 186; State v. Don-
nell, 202 N.C. 782, 164 S.E. 352; State v.
Myers, 202 N.C. 351, 162 S.E. 764; State
v. Spivey, 151 N.C. 676, 65 S.E. 995; State
v. Covington, 117 N.C. 834, 23 S.E. 337.
In State v. Newsome, 195 N.C. 552, 143
S.E. 187, the same rule was declared
though it was held that under the evidence
in that case a verdict of second degree
was permissible.
[4-6] 3. The defendants excepted to
evidence admitted by the court tending to
show that these three defendants on March
16th perpetrated a hold-up and robbery in
the same manner and by the same method
as that testified as used at Jamestown.
They excepted to the court's ruling in this
respect and to his reference thereto in his
instruction to the jury. This evidence was
SPATH ¥, BIGGS N:& f55
Cite as $9 SHG 352
limited by the court, both at the time of [7-9] 4. The defendants en ——
its admission and in the charge, to be ous exceptions to the judge’s charge. ca
considered by the jury only upon the ques- of these exceptions relate to pares a
tion of intent, guilty knowledge and iden- inbefore referred to. In no ot er pz sag
tification of the defendants. We think ular is it pointed out that error se c
this evidence was competent for the pur- mitted in the court’s septncainis" oe ne
pose to which it was limited. The gener- jury. However, we have agen age
al rule for the admission of such evidence, tire charge with care and sim ” ht
deducible from the decided cases, was stat- ground for complaint on the a of —
ed in State v. Edwards, 224 N.C. 527, 31 defendants. The principles at aw app ak
S.2d 516, as follows: “Undoubtedly the able to the various phases of the ertoenre
ae ak were correctly stated, and the evidence and
substantive offense is inadmissible to prove — the contentions of the State — al
another and independent crime where the ants fairly presented. et ants : ~
two are disconnected and in no way re- raise the point in their bricf t lat inc are
lated, but there is an equally well estab- ing the jury the judge us a aig
lished exception to this rule that proof with GS. § 1-180, in sce 1¢ : ai .
of the commission of like offenses may be “state in a plain. and epeeee ee i
competent to show intent, design, guilty evidence given in the case perch up
knowledge, or identity of person or crime.” and explain the nS act e ‘
State ve Stancill, 178 N.C. 683, 100 S.E. W hile this Court has not heeliatc to ws ns
241: State v. Miller, 189 N.C. 695, 128 a new trial where the provisions ° this
SE. 1: State v. Ferrell, 205 N.C. 640, 172 statute have not been ee pe
S.E. 186 ; State v. Smoak, 213 N.C. 79, plied with, State v. Friddle, a io
195 S.E. 72: State v. Payne, 213 N.C. 719, 25 S.E.2d° 731; Smith ve Kappas, 2 Is - ;
197 S.E. 573: State v. Harris, 223 N.C. C. 850, 15 Eee 3/95 oe
697, 28 S.E.2d 232; State v. Ballard, 224 Contracting Co., aya tk tess - : ae
N.C. —, 29 S.F.2d 344; Wigmore, $$ 300- 531; Mack be —— “ield & | ——
306; 20 Am.Jur. 292, This rule applics N.C. 697, 12 — _ - : ene
equally to evidence of like offenses com- 218 N.C. 660, apiaet “ Sgr : .
mitted subsequent to the offense charged, Bus Co., 216 N.C. 22, 3 S. ae : ay ve
State v. Simons, 178 N.C. 679, 100 S.E. do not think this objection iS oe - in
239; State v. Flowers, 211 N.C. 721, 192 this case, Tt was said in nee us ae
S.E. 110, if not too remote in point of 19+ N.C. 459 at page = if RT ; :
time, State v. Beam, 18+ N.C. 730, 115 S. “Concerning the necessity of declaring an
; explaining the law, it has been held in
quite a number of cases that nothing more
is required than a clear instruction which
general rule is that evidence of a distinct
KE. 176. Nor is such evidence rendered in-
competent on the ground pi : sae to
impeac » characte re defendants. 1
eioagg ae “627, 6 S.E.2d applies the law to the evilenee and. grres
$33 : the position taken by the respective par-
_ . ties as to the prominent and controlling
Since the case at bar hinged largely UP features which make for the ascertainment
on the accuracy of the identification of of the facts.” Measured by this standard,
these defendants as perpetrators of he id we do not think the defendants have cause
tempted robbery and murder of E, J. Swan- for complaint. Sce also State v. Colson,
son at Jamestown, we think under the rule 929? N.C. 28, 21 S.F.2d 808; State v. Puck-
it was competent for the State to show ett, 211 N.C. 66, 189 S.E. 183; State v.
that twenty-seven days later these three Finns 211 N.C. 458, 190 S.E. 724; State
defendants driving the same automobile < Finder, 210 N.C. 371, 186 S.E. 495.
staged a hold-up in almost the exact man- :
ner as that in which the deceased was
slain; that in the Danville robbery Messer
and Wm. Dalton Biggs entered the fill-
ing station, held up the proprictor with
pistols, robbed his cash drawer while the
other defendant Elmer Hardie Biggs wait-
od i » automobile and drove them away.
mi i Oech was competent to show the [10] 5. Defendants als: soled ag
identity of the persons and the crime. tions to the admission of ey idence of co
attempt of one of the defendants to es-
The exception on this point might be dis-
missed as broadside for failure to specify
the supposed defects in the charge. State
v. Webster, 218 N.C. 692, 12 S.E.2d 272.
However, we have considered the charge
in the light of this criticism, and find the
objection untenable.
State v. Edwards, supra.
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cape from jail (20 Am.Jur. 276), and to
other testimony offered by the State. Most
of these exceptions are involved in mat-
ters already discussed. Other assignments
of error in the admission of evidence are
not preserved by reference to them in the
bricf, and are deemed abandoned. Rule
28. But we have examined cach of these
exccptions and the entire evidence with
the degree of care appropriate to the grav-
ity of the case and its serious consequenc-
es to the defendants, and are unable to
discover any exception which can be sus-
tained or any ruling of the trial judge
which should be held for error. As was
said by the present Chief Justice in State
v. Wingler, 184 N.C. 747, 115 S12. 59, 62:
“There is no error appearing on the ree-
ord, except the great error of the defend-
ant in murdering his wife; but this is a
mistake which is beyond our province or
power to correct.”
[11] The defendants have been repre-
sented by able counsel who have present-
ed their cause throughout with unflagging
zeal; but the jury has accepted the State’s
evidence as true and found the defendants
guilty of a most serious crime. The evi-
dence fully supports the verdict. ‘The tri-
al was in all respects fairly conducted by
a competent and experienced judge, and
we conelude that the defendants have no
just or legal ground to complain of the
result,
In the trial we find no error,
Ww
: KEY NUMBER SYSTEM
AAD
T
224 N.C. 768
STATE v. ROWELL,
No. 578.
Supreme Court of North Carolina,
Dee. 18, 1944,
!. Criminal law C=1172(1)
Charge that jury may return a verdict
with recommendation of mercy is prejudi-
cial to defendant, where under the law
there is no discretion vested in the court as
to kind or amount of punishment which may
be imposed by judgment upon defendant.
2. Criminal law C1174(1)
In murder prosecution, instruction,
given in response of inquiry after jury had
32 SOUTH EASTERN REVORTER, 2d SERIES
spent some time in deliberation, that it
might recommend defendant for mercy, if
it should find defendant guilty, was prej-
udicial to defendant, where verdict of guilty
in first degree was rendered with recom-
mendation for mercy and court imposed
capital punishment, since court had no dis-
cretion with respect to punishment.
————
Appeal from Superior Court, Union
County; TF. D. Phillips, Judge.
Cletus Rowell was convicted of murder in
the first degree, and he appeals.
New trial.
The defendant, Cletus Rowell, was tried
upon a bill of indictment charging that he
“wilfully, unlawfully and feloniously and of
his malice aforethought did kill and murder
one Zeb D. Benton against the form of the
Statute in such case made and provided and
against the peace and dignity of the State,”
and the jury returned for “their verdict
that the defendant, Cletus Rowell, is guilty
of murder in the first degree, and make a
recommendation for mercy,” whereupon the
Court pronounced judgment that the prison-
er, Cletus Rowell, having “been duly con-
victed of the felony of Murder in the First
Degree,” suffer death by asphyxiation. To
this judgment the defendant excepted and
appealed to the Supreme Court, assigning
ercor,
W. B. Love and J. I. Milliken, beth of
Monroe, for defendant, appellant.
Harry McMullan, Atty. Gen., and,
Hughes J. Rhodes and Ralph Moody, Asst.
Attys. Gen., for the State.
SCHENCK, Justice.
There appears in the record the follow-
ing: “After the jury had spent sometime in
deliberation they returned to the Courtroom
and the following took place:
“By the Court: Gentlemen, your officer
informs me that you desire further instruc-
tions from the Court. Is that correct?
“
By Spokesman for the Jury: Yes, sir,
what we want to know is if we decide first
degree murder can we ask for mercy?
‘By the Court: You have that right.
“To this instruction by His Honor the
defendant objects and excepts, Exception
No. 9.”
This exception is preserved and is made
the basis of an assignment of error on ap-
peal, and we are constrained to hold that
STATE vy ROWELL N.C. Q57
Cite as 32 S.K.2d 356
this assignment is well taken and should be
sustained.
[1,2] The question here posed is identi-
cal with that involved in State v. Matthews,
191 N.C. 378, 131 S.E. 743, 746, wherein
Connor, J., wrote:
“Where a verdict of guilty is rendered by
a jury, including the words, ‘with recom-
mendation of mercy,’ or words of similar
import, there is authority in this state for
holding that such words are surplusage, and
that they may be disregarded. State v.
Stewart, 189 N.C. 340, 127 S.E. 260; State
v. Snipes, 185 N.C. 743, 117 S.FE. 500; State
vy. Hancock, 151 N.C. 699, 66. S.E. 137;
State v. McKay, 150 N.C. 813, 63 S.E. 1059.
These causes are recognized by us as au-
thorities, sustaining the holding that recom-
mendation of mercy by the jury, in certain
cases may be disregarded as surplusage.
Where the words, ‘with recommendation of
mercy, or words of similar import, included
in or forming a part of, a verdict of guilty
are voluntary on the part of the jury, and
are not so included in, or made a part of,
the verdict, in consequence of an instruc-
tion to the jury, that they may return a
verdiet with such recommendation, the
words may be treated as surplusage, and the
verdict reecived and recorded as a verdict
of guilty. [It is well, however, to be mind-
ful of the words of the late Chief Justice
Hoke, appearing in the opinion written by
him in State v. Murphy, 157 N.C. 614 [615],
72 S.4. 1075. In this opinion, writing with
wisdom gained from long experience, wide
observation, and deep reflection, he said:
‘Our trial courts should always require that
juries in capital cases should definitely and
expressly say of what degree of murder
they convict the prisoner, and that the ver-
dict should he recorded as rendered. Ina
case of this kind there should be no room
for doubt or mistake.’
“We must hold that it is error for the
court to instruct the jury cither in the gen-
eral charge, or in response to an inquiry
made by the jury, that they may return a
verdict with recommendation of mercy, or
with other words having reference, neces-
sarily, to the judgment to be rendered by
the court, and that, where under the law
there is no discretion vested in the court, as
to the kind or amount of punishment which
may be imposed by the judgment upon the
defendant, the error is prejudicial to de-
fendant. If the jury returns a verdict vol-
untarily, including the words ‘with recom-
mendation of mercy,’ or words of similar
import, these words may be disregarded as
surplusage, if it clearly and definitely ap-
pears that the jury, upon a consideration of
all the evidence, and under the instructions
of the court has agreed upon the verdict as
returned by them.
“The identical question presented by this
appeal was considered by the Supreme
Court of Colorado in Hackett v. People, 8
Colo. 390, 8 P. 574. The question was there
presented as follows: ‘The jury after de-
liberating for a considerable length of time,
and being brought into court at their own
request, propounded the following question :
“Can the jury indorse on the verdict a ree-
ommendation of merey?” To which ques-
tion, the court answered by a written in-
struction that they could indorse such
recommendation upon their verdict should
they desire so to do. Thereupon they re-
tired and soon after returned a verdict of
guilty in manner and form as charged in
the indictment. They also embraced in
such verdict the following: “We, the jury,
recommend the defendant to the mercy of
the court.”’ In the opinion of the court it
is said: ‘Thus it appears that some of the
jurors were opposed to a conviction for the
grade of crime finally found in their verdict,
and that they only consented thereto upon
condition that the recommendation for mer-
cy be incorporated. They must have been
led to suppose, from the court’s answer to
their question, that this might have weight
in mitigating the severity of the sentence
to be pronounced. Any other explanation
of the proceedings would be absurd; and it
must be assumed that without such belicf
the verdict, as returned, would not have
been agreed upon. Yet, as the law then
stood, the court was powerless to heed their
suggestion. Upon a verdict in this form,
it was his duty to pronounce a sentence of
imprisonment for life. The law fixed the
penalty, and he could not subtract a single
day. He must cither sect the verdict aside
and order a new trial, or enter the judg-
ment fixed by the statute. The instruction
mentioned was, therefore, clearly mislead-
ing, and, under the circumstances, a fatal
error. Sce, also, Territory v. Griego, 8
N.M. 133, 42 P. 81, citing with approval
Randolph v. Lampkin, 90 Ky. 551, 14 S.W.
538, 10 L.R.A. 87; People v. Harris, 77
Mich. 568, 43 N.W. 1000; MeBean v. State,
83 Wis. 206, 53 N.W. 497. See, also, 16 C.J.,
1026, § 2459; 30 C.J., 432, § 682.”
For the error above indicated the defend-
ant is entitled to a new trial, and it is so
ordered.
New trial.
le
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CORRE aig oes
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‘ BOGGAN, Will, black, hanged Wadesboro, NC, 2-25-190).
G >)
PRS ct eB REA AE 8 hs ae Ha
& ee, “"" BOGGAN, Will
PLACE — CiTY OR cou
NTY. a
Wadesboro, North Carolina
hanged 2=25-190h., :
DOB OR AGE RACE ‘ OCCUPATION RESIDENCE GEN
Black
RECORD
CRIME DATE OTHER
Murder 2=28-1903
VICTIM AGE RACE METHOD
eas! Je Ao Sullivan Shooting = pistol
MOTIVE
SYNOPSIS
From Appeal Report:
On night of 2-28-1903, Sullivan and two others,M@rgan and Starnes, started down alley by
Klondyke Hotel in Wadesboro, going to Sullivan's horse and busey. They met Boggan in alley
Sete HS ; and Sullivan greeted in friendly manner with Boggan replying 'Hello, you dam son of a bitch,!
Apes os) 6 ter remarking that *t-donot-bike -to-take-that_off-or no man," Sullivan, Morran and Starnes
walked on with Boggan following. One of witnesses swore he saw pistol in Boggan's hand and
: See e turned by—a—eorner, and turning; _sewBegpzan!s_hand—outstretehed with pistel—init,;_pointed
pA gsr OA ge towards Sullivan and saying (I willtreak it off in you, you damn son of a bibch." He then
i 7 ? ee ——Saw_the pistol fire and Bogean ran up_alley way, He went to Sullivan who said "That negro
hacer has killed me," Witness s tated that Boggan had followed Sullivan 10 or 15 feets after
fel initial contact before shooting and that he was about l or 5 -feet away when he fired, Sullivan
eee shot on Saturday night and died following Tuesday. Sullivan's brother, Julius, stated that
on deathbed Sullivan said that he knew he was dying and stated that Boegan had shot him,
SLs conics
a3 Aether ad “tne Peet Bes
ae TRIAL
Tried to prove an alibi,
APPEALS
6 SOUTHEASTERN 111 ‘
LAST WORDS
execution "February 25, 190). - Will Boggan, the murderer of J, *, Sullivan, was hanged at Wadesboro,
Ne Cey today at 12:5 o'clock. The execution was private, He denied his guilt to the last.
is Many persons viewed the body after it gas cut down. DBorgan claimed that he was prepared to
die and that he was going to heaven, There is no doubt as to his built and people believe that ;
e-- soos 7 tne law, in nis death, ts vindicated, —?IMES=DISPATEH, Richmond, Vasp—o=26—2 901 He Fo) ee ee
SQURCE
FRANK NEWTON OFFICE SUPPLY-cOTHAN
patty eo ab Es PRE ‘
veiaidaihctilieg diaiid sched eels: aiad Diana
Spa ahs ete enn cs pores
110 46 SOUTHEASTERN REPORTER, (Ga.
partners, with notice to the party who claims
under it, there is no partnership obligation.
If the contract of partnership is silent, or the
party with whom the dealing has taken
place has no notice of its limitations, the
authority for each transaction may be im-
plied from the nature of the business accord-
ing to the usual and ordinary course in which
it is carried on by those engaged in it in
the locality which is its seat, or as reason-
ably necessary or fit for its successful prose-
cution. If it cannot be found in that, it may
still be inferred from the actual, though ex-
ceptional, course and conduct of the business
of the partnership itself as personally carried
on with the knowledge, actual or presumed,
of the partner sought to be charged.” Irwin
v. Williar, 110 U. S. 505, 4 Sup. Ct. 163, 28
L, Ed. 225. ‘When the business of a part-
nership is defined, known, or declared, and
the company do not appear to the world in
any other light than the one exhibited, one
of the partners cannot make a valid part-
nership engagement except on partnership ac-
count. There must be at least some evidence
of previous authority beyond the mere cir-
cumstance of partnership to make such a
contract binding. If the public have the
usual means of knowledge given them, and
no acts have been done or suffered by the
partnership to mislead them, every man is
presumed to know the extent of the partner-
ship with whose members he deals; and
when a person takes a partnership engage-
ment, without the consent or authority of
the firm, fora matter that has no reference
to the business of the firm, and is not with-
in the scope of its authority or its regular
course of dealing, he is, in judgment of law,
guilty of a fraud.” 3 Kent's Com. (14th Ed.)
*43; Venable vy. Levick, 2 Head, 351; Dick-
inson v. Valpy, 10 B. & C. 128, 21 Eng. Com.
Law, 63. “If a partner does an act fora
purpose apparently not connected with the
firm's ordinary course of business, he is not
acting in pursuance of any apparent author-
ity, and the firm will not be bound unless
the partner in fact had authority. If, for in-
stance, a partner pledges the credit of the
firm for a purpose apparently not connected
witb its ordinary course of business—e. g.,
for the purpose, to the knowledge of the
creditor, of paying his private debts (Lever-
son v. Lane [1862] 18 C. B. N. S. 278; In re
Riches [1864] 4 De G., J. & S. 581; Snaith v.
Burridge |1812] 4 Taunt. 6S4)—the firm is not
bound unless he is in fact specially author-
ized by the other partners (Part. Act 1890,
§ 7). Theonus of proving such authority is on
the creditor, and it is not suflicient for him
to prove that he honestly believed there was
such authority (Id., and Kendal v. Wood
(1871] L. R. 6 Ex. 243), unless the other part-
ners are by their conduct estopped from de-
nying the authority (Id.).". 9 Enc. Laws of
Eng. 461. The creditor cannot shield himself
behind his ignorance of the authority of the
partner with whom he deals, even though
he may have exercised ordinary care to as-
certain it. He must, in order to bind the
partnership, either show express authority or
facts from which the law will imply author-
ity. If he cannot show either, he cannot hold
the partnership. He must, at his peril, in
dealing with a single partner, ascertain the
actual or apparent authority of such partner.
In other words, when he deals with a mem-
ber of a partnership in a matter as to which
such member has no express authority, he is
chargeable with notice of the apparent char-
acter and scope of the partnership business.
It was therefore error to charge that the
test of liability of the partnership was the
honest and reasonable belief of the plaintiff.
As was said by Lush, J., in Kendal v. Wood,
L. R. 6 Ex. 254, “The mistaken belief that
the one partner had that authority cannot
prejudice the right of the other, if the other
did nothing to induce such a belief.”
We express no opinion as to the evidence
in this case, or as to what the verdict of the
jury should be. The trial judge granted a
new trial because he thought that the case
had been submitted to the jury under incor-
rect instructions. We agree with him in
this view, and therefore aflirm his judgment
granting a new trial.
Judgment affirmed. All the Justices con-
cur.
(119 Ga. 298)
CRIBB vy. PARKER, Judge.
(Supreme Court of Georgia. Dee. 17, 1903.)
INSANITY—INQUISITION AFTER CONVICTION—
REPEAL OF STATUTE — EFFECT — PENDING
CASES—SUSPENSION OF SENTENCE—MANDA-
MUS.
1. Pen. Oode 1895, § 1047, as amended by
the act of December 21, 1897 (Acts 1897, p. 41;
Van Epps’ Code, § 503 3 was repealed by the
act of August 17, 1903 (Acts 1908, p. 77), pro-
viding for the abolition of trials or inquisitions
after conviction as to the sanity of persons ac-
cused of capital offenses.
2.'The third section of the repealing act,
which provided that that act “shall not apply
to any pending case,” has application only to
Sg gaiecce of insanity pending under Act 1897,
3. After the date of the passage of the re-
pealing act a judge of the superior court had
no jurisdiction to entertain an original appli-
cation for an inquisition of insanity under Act
1897, p. 41, or to grant an order suspending
the sentence in the case.
4. Even if the refusal of a judge to enter-
tain such an application is such a decision as
would authorize the applicant to tender a bill
of exceptions complaining thereof, the judge,
when signing such a bill of exceptions, has no
authority to grant an order suspending the
Sentence merely because the bill of exceptions
has been signed.
5. Even if this court has jurisdiction by man-
damus in any case to compel a judge of the
trial court to grant an order suspending the
sentence in a criminal case, for the reason
that the granting of such an order is a nec-
essary part of the bill of exceptions, this court
has no jurisdiction to issue the writ of manda-
mus for such purpose in a case where, at the
time the judge signs the bill of exceptions, he
has no jurisdiction over the sentence sought
N.C) STATE v. BOGGAN. 111
to be suspended. Haskens v. State, 40 S. E.
“7, 114 Ga. 837,
(Syllabus by the Court.)
Application by Lee Cribb for writ of man-
catuus to Parker, judge. Writ denied.
Quincey & McDonald, for applicant.
PER CURIAM. Mandamus nisi denied.
STATE v. BOGGAN,
‘Scpreme Court of North Carolina. Dee. 19,
1903.)
‘ICIDE—MURDER IN THE FIRST DEGREE—
SIDENCE — SUFFICIENCY — INSTRUCTIONS
SJUDICIAL ERROR — EVIDENCE — DYING
ARATION—NEW TRIAL—MISCONDUCT OF
3 —PRESUMPTION—DISCRETION OF TRIAL
COURT.
1. In a prosecution for homicide, declarations
ef deceased that defendant shot him were com-
retent as dying declarations, where it was
shoy he peas yas i r the morn- |
n that @eseased wae informed | gardless of social duty, and fatally bent on
atter the homicide that the wound would
ably prove fatal, and just before making
the statements on the following morning he
rtated that he was getting weaker, believed he
was going to die, and that the doctors had so
infermed him.
2. In a prosecution for homicide, evidence ex-
amined, and held suflicient to authorize a con-
viction of murder in the first degree.
3.In a prosecution for homicide, defendant
sid not complain of a refusal to instruct that
he could not be convicted of manslaughter,
where there was uncontradicted evidence, ex-
‘ept as to his identity, of murder in the first
ce cree,
4. Where it is shown in a prosecution for
icide that there was opportunity to in-
ice the jury, but not that the jury was ac-
ly influenced, the granting of a new trial
1 the discretion of the trial judge.
The presumption is in favor of the integ-
of a verdict, and the burden is on the as-
nt thereof to show that the jurors were
tuproperly influenced, or that their conduct
was suet that, as a matter of law, there was
“no trial.”
8.In a prosecution for homicide, it was
shown on motion for a new trial that the jury
was quartered in a hotel adjoining the alley in
which the killing occurred, and that on two
e-casions the jury were conducted through the
elex to the privy. In reference to these facts,
the court found that while the jury could and
ail see the circumstances as to light, etc., sur-
rounding the killing, they made no mention of
any such things, and did not remark thereon
in their deliberations or anywhere else. Held,
that the court’s findings would be construed to
cieate that the jury were not influenced by
t they saw, and its refusal to set aside the
verdict would not be disturbed.
Montgomery, J., dissenting in part.
Appeal from Superior Court, Anson County;
C. M. Cooke, Judge.
Will Boggan was convicted of murder in the
frst degree, and appeals. Affirmed.
The following are the instructions of the ,
te
‘al court:
“(1) All murders which shall be perpetrated
¥ means of poison, lying in wait, imprison-
ent. starving, torture, or by another kind of
willful
J 1. See Homicide, vol. 26, Cent. Dig. $$ 433, 434.
. deliberate, and premeditated killing, |
or which shall be committed in the perpetra.
tion of or attempt to perpetrate any arson,
rape, robbery, burglary, or other felony, shall
be deemed to be murder in the first degree,
and shall be punished with death. All other
kinds of murder shall be deemed murder in
the second degree. Any other wrongful kill-
ing of a human being is manslaughter.
“(2) Murder in the second degree is the
willful and unlawful killing of a human being
with malice.
“(3) But to make the killing murder in the
first degree, it must not only be done with
malice, but, unless perpetrated by means of
poison, lying in wait, imprisonment, starving,
or torture, or committed in the perpetration or
the attempt to perpetrate some arson, rape,
robbery, burglary, or some other felony, it
must be committed with deliberation and pre-
meditation,
“(4) General malice is wickedness; a dis-
position to do wrong; a diabolical heart, re-
mischief. Particular malice means ill will; a
grudge; a desire to be revenged on a partic-
ular person. Malice, also, in respect of the
rule for the proof of its existence, is either
implied or expressed. Implied malice is when
the law presumes its existence. The law pre-
sumes malice from the use of a deadly weap
on, and, when it is admitted or proved that
the slaying was with a deadly weapon, the
burden is upon the accused to satisfy the jury,
not beyond a reasonable doubt, but to satisfy
them of the existence of facts and circum-
stances in mitigation, and sufticient to reduce
the offense below murder in the second de-
gree. Mere words, however opprobrious and
insulting, are not legal provocation for the
use of a deadly weapon, and cannot be allow-
ed as sufficient to reduce the offense below
murder in the second degree, when the killing
is with a deadly weapon.
“(5) A deliberate and premeditated killing
can only be where there is a murderous intent
and purpose in the heart, formed before, and
not simultaneously with, the killing, and a
steadfast resolve and deep-rooted purpose to
kill the deceased, after carefully considering
the consequences.
“(6) Dying declarations of the facts of the
killing and of the person who did it are com-
petent, but should be received with caution.
“(7) Of every fact material and essential to
the guilt of the prisoner of any one of the
offenses the jury must be satisfied beyond a
reasonable doubt, and, upon a consideration
of the whole evidence, the jury must be suatis-
fied beyond a reasonable doubt that the de-
fendant is guilty, before they could find him
guilty of any one of the offenses.
‘“S) The court instructs you that in this
| ease the defendant is guilty of at least murder
|
|
|
in the second degree, or nothing. It will be
your duty to consider first if he be guilty of
the homicide, and then whether it be murder
in the first or second degree.
“(9) Upon the question of identity, the court
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112 46 SOUTHEASTERN REPORTER, (N.C.
instructs you that the state must satisfy you
beyond a reasonable doubt that the defendant
is the man who fired the fatal shot that killed
John Sullivan, and if the state has failed to
satisfy you beyond a reasonable doubt that
the defendant is the man who fired the fatal
shot, or if, after considering and weighing all
the evidence, your minds are left in painful
doubt and uncertainty upon that point, it
would be your duty to acquit the defendant;
and upon this question it will be your duty to
consider all the evidence offered by the state,
including the dying declarations of the de-
ceased that the defendant was the man who
shot him, as testified by the witness Craw-
ford, the widow and brothers of the deceased,
if you shall find the facts testified to be true;
and the evidence of the witnesses Starnes and
Morgan that they saw the man shoot the de-
ceased; that, while they did not know the
name of the defendant, they knew the man,
and did recognize him as soon as they saw
bim, and that it was the defendant; and also
their evidence that they recognized his voice
the first time they heard it afterwards as the
voice of the man who shot the deceased; if you
shall find the facts testified to by them to be
true; and also the evidence in corroboration of
the said Starnes and Morgan, if those witness-
es who testified to hearing the said Starnes
and Morgan say, after the shooting, and be-
fore they saw the said defendant, thereafter,
that they did not know the name of the man
who did the shooting; that they would know
him if they should see him again; if you shall
find the said facts to be true. You will also
consider the evidence of the witness Starnes
that the man who shot the deceased had on a
short, light-colored overcoat, and a brown der-
by hat, and of Morgan that he had on a light-
colored overcoat, and the evidence of the wit-
nesses who testified to seeing the defendant
that night, and that he had on a light-colored
overcoat and a brown derby hat, if you should
find these facts to be true; and you will also
consider the evidence of the witnesses of the
general bad character of the defendant. And
you will also consider the evidence of the wit-
nesses who testified to seeing the defendant,
on the night the deceased was shot, at a point
on the street not far from where the shooting
occurred, with a pistol in his hands, and the
evidence of the witnesses that the defendant
and the deceased were quarreling, that night
and not far from the place of the shooting, and
not long before the shooting occurred—provid-
ed you shall find the facts to be true; and up-
on this question you will consider all the evi-
dence that Is in favor of the defendant, includ-
ing the fact that the shooting occurred in the
night time in the alley; that neither Starnes
nor Morgan knew the man by name, and their
failure to tell who it was that did the shooting
immediately after the shooting, and the testi-
mony of these witnesses who testified that
Starnes and Morgan stated soon after the
shooting that they did not know the man who
shot Sullivan; the evidence of the witnesses
who testified that Will Boggan did not wear
a light-colored overcoat, and did not own one,
and that he did not have a brown-colored der-
by hat. You will also consider the evidence
of the defendant himself that he was not the
man who shot the deceased; that he was not
at the place where he was shot, but that he
had left town before it occurred, and had gone
by his home, and shortly afterwards had goue,
in company with Monroe Ledbetter, Jean Ty-
sen, Thomas Boggan, Frank Sturdivant, Wal-
ter Howell, Garfield Howell, and Jesse Wil-
loughby, to a point in some woods more than
a mile from town, and where he and they had
remained playing cards until a late hour in
the night; and also the evidence of Monroe
Ledbetter that he went with the defendant
from town before the shooting occurred, and
was with him on the way to and over in the
woods until a late hour in the night; and also
the testimony of Frank Sturdivant, Jean Ty-
sen, Garfield Howell, and Thomas Boggan
that they got up with the defendant and Mon-
roe Ledbetter, and accompanied them to the
woods for the purpose of playing cards, and
that they remained there with the defendant
until a late hour of the night; and the testi-
mony of Cornelia Ledbetter and Nellie Bog-
gan to the fact that Boggan and Ledbetter
were at their respective homes between nine
and ten o'clock, and left with their lanterns;
and the evidence that the defendant, after his
return from the woods, on being informed by
his wife that the officer had been at his home
to arrest him on the charge of shooting the
deceased, came at once to town, and sought
the officer, and inquired the cause of his ar-
rest; and you will also consider the evidence
as to the good character of Monroe Ledbetter,
Jean Tysen, Tom Boggan, and Frank Sturdi-
vant, and Anna Johnson, Cornelia Ledbetter,
and Nellie Boggan, and of the bad character
of Judge Starnes. You will also consider the
evidence of the witness who testified to meas-
uring the rubber overshoe that defendant had
on, and then applying the measure to tracks
made by some one wearing apparently rubber
shoes, going away from tbe place of the kill-
ing, and that the measure of the tracks was
one-eighth inch shorter than the measure of
the other soles. The court does not claim to
have herein called your attention to all the
evidence in the case, but you will consider all
the evidence, and allow to it such weight as
you may find it entitled to.
“(10) If you shall find beyond a reasonable
doubt, after considering all the evidence in
the case, that the defendant fired the shot
that killed the deceased, and if you shall
further find beyond a reasonable doubt that
the defendant, moved by feeling of revenge
and ill will towards the deceased, had, after
considering carefully the consequences, cool-
ly and deliberately formed the murderous
purpose against the deceased, and, with the
stendfast resolve and intent to kill the de
ceased, and with deliberation and premedi-
tation, fired the said shot, then you will
find
) STATE v. BOGGAN. 113
the defendant guilty of murder in the 1 three persons went down the alley, the pris-
nest degree; but, if you shall not be so! oner was standing up beside a wall, and de-
«.tisfied beyond a reasonable doubt, you will | ceased spoke to him in a friendly manner;
red the defendant not guilty of murder in | the prisoner responding, “Ilello, you daann
. first degree. And upon the question of
»-emeditation and deliberation the court in-
son of a b——.” Deceased said, “I do not
like to take that off of no man,” and made
an attempt to turn around. The otler two
iets you that the killing with the pistol,
sie it is a presumption of malice, would | persons with him prevented him from do-
- he so of deliberation and premeditation, | ing so, and the three started on down the
-2 would not be evidence thereof. You | alley. Prisoner followed them. One of the
‘upon this question of premeditation and | witnesses swore that he saw a pistol in pris-
eration, consider the evidence offered | oner's hand; that he turned deceased loose,
the state of threats made by the defend- | and started around the corner by the store;
-t against the deceased, as testified to by | that he looked back, and saw prisoner with
» witnesses A. J. Johnson and Booker Lit- | pistol in his hand, arm outstretehed, pre-
‘«, and the evidence that the man who shot | senting it toward deceased, and he said, “I
».. deceased was standing close by the side | will break it off in you, youd
.
mA
we
‘< the man who shot the deceased, and | has killed me.”” The witness said:
|
son of a
the wall on one side of the alley, along | b :’ that he then saw the pistol fire.
ich, the deceased was going, if you shall | The prisoner turned and ran up the alley-
i that the defendant was the man who | way. Witness went to deceased and asked
standing by the side of said wall, and | him if he was hit, and he said. “That negro
“Boggan
“ot upon the deceased addressing and sa- | followed Sullivan, after using the words,
ing him by using the word ‘Hello,’ be | ten or fifteen feet, before he shot. He was
corsed him. But you will not consider upon | about four or five feet from Sullivan when
of
question for the state any expressions | he shot him.” The witness Starnes further
the defendant tending to show ill will | testified: “1 looked back, and saw the negro
had temper generally. You will consider | following. I turned and told him to go
the defendant the denial of the defend- | back. He said, ‘I'll be d if I do.” Just
t that he made the threats testified to by | about that time Sullivan stepped around me
‘« witnesses, and all the other evidence in | and said, ‘1 do not like to take that. ‘The
thie
at
> case that may be in his favor. negro said, ‘I gave it to you, and Tl be
“11) If you should find beyond a reason- d—— if I take it back. Before I will, I
le doubt that the defendant fired the shot | will break it off in you.’ Sullivan pulled off
‘hat killed the deceased, but that the kill- | his right glove, and went to put it in his
“z was not deliberated and premeditated, | pocket, and as he did so the negro shot him.”
» you will find the defendant guilty of There was other testimony in regard to the
rder in the second degree; but, if you are , identity of the prisoner. The prisoner set up
! so satisfied, you will find the defendant | an alibi, and introdueed testimony tending
‘enilty. And upon this question you will | to sustain his eontention that he was at an-
der all the evidence to which I have | other place at the time of the homicide. The
ed your attention, and all the other evi- | deceused was shot on Saturday night, and
» In the case. died the following Tuesday. Dr, Bennett
“12) As to the testimony of Will Boggan, | and Dr. Ashe saw him on Sunday morning.
» defendant, the court instructs you that | “He was then rational and very much com-
‘is your duty to weigh and scrutinize his | posed.” Doctors told him that the wound
terney General, for the State.
ne
tence carefully, on account of his interest would very probably prove fatal. They ex-
the result of the trial, but if, after doing tended some hope to him by means of an
~on are satisfied he has told the truth, operation that might save him. They told
1 will allow the same weight to his tes- him that they were preparing for a state-
ny that you would to any other credible ment he might make to the magistrate.
tness,”” ! Prisoner objected to this testimony. Objec-
H. H. McLendon, for appellant. The At- tion overruled. No statement by the pris-
oner was introduced. Julius Sullivan, a
| brother of the deceased, was introduced, and
CONNOR, J. The prisoner was convicted — testified that he saw the deceased about 3:30
murder in the first dezree, and from the | o'clock Monday morning. To an inquiry as
‘cment of the court appealed. The facts to his condition, deceased said: “I am in a
terial to the decision of the exceptions bad fix.” About 9 o'clock that morning de-
‘ out In the record and case on appeal are + ceased sent for witness, and said: “Well,
follows: On the night of February 28, . Iam about to leave you all. I hate to lenve
“. the deceased met Morgan and Starnes , my little children” Witness then asked
the Klondyke Hotel, in the tewn of | him if he knew who shot him. He said:
shoro. They went into and down an | “Yes; I know who shot me. Will Boggan
v between the hotel and store of one | shot me. I have been knowing him all my
‘ms for the horse and buggy of the de- life.” Witness duly objected and excepted
1 There was testimony on the part | to the admission of this testimony, Daniel
state tending to show that, as the | Crawford also testified to similar declara
41S E.—S§
?
Please oluble check your Source on this one. Stuuld probably Be
North Carolina instead of Souty Carolina. Charleston News & Courrer
Of 3-31-83 reporting On execution of Over Bristow at Camden SC
explicitly stakes Haat the previous execution there had btén that of
Josh Frazer ta 1875. :
Cen) :
er OO Ree gen lg! TE cc iN Oc OR A OE I
BLAIR, Neill WwW,
Neill W. Blair, black, hanged at Camden, S, C,, on Oct,
17,1879, for the mrder of William Adamson, in a drunken ~
brawl on August 9th, Blair died game before. a large crowd,
ie maintained he had no recollection of the crime and that
“he was"innocenct in the heart if guilty in the hand."
“NATIONAL POLICE GAZETTE, Nov, 1, 1879 (10-2)
Thz sas@ the Smerife assisted
by his Deputies, McGee
Brown, adjusted and tied
rope to the beam above, and
then tightened it around his ;
neck, tied his hands behing his!
back and his feet together. |
Placed a black C&p Over his head!
and face and descended Walle
the rope and cap were being ad- |
justed he insisted that they}
should not be so tight. Said he:
“Iam ready to go bet I cont
want to suffer t:!l the time com-!
es, I have suftered enough in|
this world.” !
| Before cutting the trigger the
|Sheritt bade him good bye and:
;asked him if he had anything
/More to say. His answer was:
“No I have told you all the.
'truth, and ail I Rave to tell If
|you have not believed me up to
|this time you wiii never believe
me in this world “
| Jwet before the final stroke
Sheriff Millikan read aloud and
idistinctly the order of the Conatt '
‘and then said “Mr Roeman,
you have a hals minute niore to |
Hive.” to which the prisoner ara!
wered:
“Let that 1/2 minute pass out
for me. I have nothing more to!
4a¥. I am ready to go.”
The final stroke was instantly
sade at 2.26 p. m. and into eter-
nity the poor, miserable, unfort-
unate and wretched man bound-
ed. With ‘nat stroke Nis heart
bled by the sorrows and troubles
and tortures of a fearfully’
mean, obscene and misspent iife
and harrowed by the most bitrer
memories that can posecx she!
emotions of a human aoul fell
into the agonies of » death that
baffles and defies a)! the fert!t.
ity of human imagination
In seven minutes his pulse
had ceased to deat, aud in ten
minutes he was Pronounced by
the officiating Physician, Dr.
Lewis, dead. He hung twenty-
five minutes, His bedy was then
cut down, placed in tne coffin
and delivered to his relatives |
who carried it to his native!
county Rockingham for inter-|
ment. M
Thus ended the earthly career;
of Thomas P. Bowman, and over
the end there suryives a mystery
which none but ‘dim who!
“reads the secrets ofall hearts”
lean fathom and solve. He de-
nied hls guilt in the very jaws
of death and protested his in-
\nocense with the jest syllable
{that fell tremblingly from ~ his
‘Ups and sent its echa into the
istient chambers of the “King of
| Terrors,”
He bore himself
with remarkable
and seemed to be
and calm til}
wal
throughout
seif-possession
perfectly cool
| indicat
and’ any, an
the very last. His; UNder the Cole women and took
manner of moving and spraking|the Dills women to my house to
ft) ttle agitation, ir
e@ unable to de-
tect a te. a 3 evidence
Of the agitation that we would
naturally imagine precedes such
a death.
I! he committed the crime, he |
had paid the awfu) and full pen- |
alty. If he wag innocent and
Pardoned he 1s now reaping a
richer reward than man can
Sive or earth yield. As to his
Sullt, no man knows We beliew-
ed him guilty. and we delleve |
that the full measure of justice
was meted out to him today,
Hig care-worn and Pale, emaci-
ated face wore the badge of
guilt. The blazing sun that
flashed Nght over the contorteg
expressions. of hig mysterious
countenance added faith to our
belief. The bright face of heaven
for life as I thought. I made five;
crops in that county before my
wife died.
Twenty-one days after she
died I was accused Of causing!
her death. and twenty-seven
days after her death I Was ar-
rested and put in prison which
I have suffered now for two;
years and four months. I hare
endured # all with patience and
I oniv wish that the wortd today
did know uy heart as } know it.
They can sang me, but they
can’t maxe me «@ guilty man. ~~!
TRey cas! murder me for ary
body tha: f have ever loved as I
did my uear wife. I did not mar-
ry her for beauty, nor riches,
for she 4idn’ have either. I
Marrie¢ her ‘for brve and I love
the piace were her body Hes
and : hope to have my beefs
layed by the side of Bers when ;
the rape e: death clases my eyes
and zwing= ‘ne into eternity. it is
so that 4 can be. There is! >
but one thing that grieves me in
leaving this wortd today ana
that is my daring little daugh-
ter. — This is the only tie that
I hate to break, as for all the
rest Iam willing te go, The Lord
has taken five children from me,
but I was not grieved as bad to
aee them all go as I am to leave
this dear little offspring, use
they all went by natura! th.
on'y loaned thein te me for:
® short !-me and then took them
away and now I am te be tesen;
by % rope from the last one,
I suppose that my wife ang
myself tried as hard to live good
together as most men and Wives,
though we would sometimes fal! '
out. Thougn she was a Poor} ;
jeateus-hearted girl, she was kind
to me till about a year or more
before her death when she be-
§an to take her first lessons
[|
Me)
‘live. I can’t say that I have liv-
ed as man should live in this
world for I have not. For 33
with two men I sudd
; Source of many troub
,the time I had three
‘Sworn to me, but we never
years of my life . « the
Devil as faithful as ... wanted
me. After that I tried to serve
God tho’ I sometimes fel] into
my evil ways. So this was my
condition until the death of my
wife. After I was accused of
poisoning her arrested and put
in prison, I went to God with all
my heart and mind. In 1877 fol-;
lowing while iying in the cell
enly found|
light.
today—-they can
e€ murder of my
wife, but they can’t make me
guilty of such a crime. I'd rath-
er be in my cq@ndition today
than in the condition of thase
whe have caused me to be here
im he face of the gallows. If I
have come to he galiows it um
not because I have >»een badly
raised, I was rs.sed -y an honest
father and goo¢ mother They
raised me to stay 2% home, to
vehave myseif to ¢>*rybody, to
work, to tei ‘me trech and to
deai honestly. rhis i wha: they
taught me and I car -ay tnat I
have always deait hs: «stly with
all men and, if i hac ny rights,
I would not be here if it were
done by good peop I wouid
not think hard of tr. I can teil
the character of three of the
party who have swern my life
‘from me, but I will jet it all Zo,
and meet my doom ana ivave!
them to theirs.
| MY WIFE'S DEATH
Here ts all Ican say in re-
gard to my wife’s death It:
might have been caused in part.
by the way 1 have lived in this ;
world. She had tried for a year
before her death to get me to!
join the Baptist church, but I
knew that I was not fit to join.
I kpow that she tried to hang
herself several years ago. This
is all the truth so far as I am
| concerned. I can tell no more, {
(C&@n say now that I
@ good fight. I have finished my
work. I have congurred the
Devil and his ageliia “My friends
of this world, you as
what you please adeu
cant avasi anything new, It
won't hurt me ana will aot do
me any good. I hare told you as
near the trutn as L can After I
got to gambiing I wa. never
satisfied when at home I’ fol-
lowed it for several years, and
it was the cause of my having
Several hard fights and the
les During
children
had
at. She forgave
it was forgotten ”
t me, It
any words on th
me and
peate,
‘hanged, »"4 it “as come just as
ihe told :.+. But
I hate the life shat J have liv-
ed, but it is passed and gone. I
can’t help it now. My tears can-|
not cure the mistakes I have
committed. Oh, if I could have it
back again, I woulld ve quite a
different life. It is justice to me
to state the: I wma advised by a
friend sore tham a year before)
her deat: that -f I stayed with
her she we-sid case me to be
how —— I
ve m3 poor. #rak wife, whom
. hod chosen ¢f @fi tae world to
live and die #itm, and how,
| would I take cute of my dear
j child? P
' said, they cam hang be for
a death, but it ds all they can
4o. There is a day coming when;
every tub will stand on its own
bottom. and I thank God for it;
for the: we will all get out jus-"
tice. This Is a sweet consolation
to an innocent and anger
man. I was tol@ only a,shor
have fought!
can say,
i my
time ago by a mam from
county that my wife told him
six years ago winie she Myer
dows sick, that if sibke lived
’ county. Bowman was hanged for
We Re-Enact The H
Of Thomas Pinkey Bowman,
‘The Courier-Tribune has been
sked many times to re-enact in
print the story of the hanging
of Thomas Pinkney Bowman in
1879. The Bowman hanging was.) yoeing Counties. <i eis, j@nswered to their names. James}/OUl and died away on the waves
as far as we know. the only of- pA; [MoGee. was appointed Captain.,Of the aiy, the ministers shoow.
ficial act of this Kind to have Flinty indeed must: B€ She [and the orders were given. At}/P4A¢s with the ‘prisoner
ever happened in Randolph
the alleged slayimg (by poison)
of his wife. Iw those years,
each county executed defend-'
ants charged and convicted of
first degree murder. This, of
course, has been changed in re-
cent years and those who get the
death penalty are disposed of at
&tate Prison in Raieigh, former-
ly by electrocution, but now by
gass:og.
We are deeply indebted to H.
M. (hack) Cranford of Trinity
and Mrs. Hal M. Worth Ran-
éeiph County Histerian, Ashe-
@aro, for a copy of “Thr aze-
veto Courier” dated Sep 2. 1879,
for the following accoua of the
Bowman episode.
There are few peeje in Ran-
deiph county who remember any
ef the incidents of tnat era, ths
ta in the 1800's, however. ‘#8.
William. C. Hammer, wetter
known to many of us # “Miss
Minnie”, does have a ret=ilection
ef the Bowman hanging. She
remembers well that she and her
mother, Mrs. Jennie Hasecock,
visited Bowman while in jail,
taking him cookies. Mr. Bow-
man, Mrs. Hammer “remembers.
weuld shake his finger in fren:
of her face and say “I am as in-
nocent as that little girl’.
However this may »b¢. we are
reproducing herewith a: best we
can the statement of M<« Bow-
man and the news story written
by either one of the twy editors
_of the Asheboro Courier at that
time, namely G. 8S Bradshaw.
and E. C. Hackney:
THE EXECUTION OF
THOMAS PINKNEY Bowman.
The First Execution Ever
< Witnessed in Randolph
The Darkest Crime In The An-
Nals of Human Depravity,
The Last Words Of The. Ex-
piring Murderer
His Funeral And His Own
Death-Colored Testimony.
C )
4
The Largest Crowd Ever.
Seen In Middle M.Oape~ -*» ~~ -
lina, Gathered Frem... .:"
This And The Neighs
heart that would not falter and
Strange the gen that woukd not
trembie in an effest te
and paint the tragic occurrences
that make up the scene of this
day. It is in truth a novel ecene
‘in this country. For ome hund-
red years Randolph lived and
flourished without the execution
of a sing+ criminal within her
borders, bwt today in the one.
hurdéred aud first year of Ber
sewtence #6 a county, she #
called upon t% exeeute a duty
that beungs property and duly
to anot:er county She is equal
to the -all, ane her peopte are
here ‘cgay to encourage their
fa:taful servant. Sheriff Milli-
‘fan, In ‘he diaMarge of an un-
Pleasar but ssiemn duty. :
Neve: before in the history of
Ashesaro fae such ai crowd
thronged her «streets. The crowd
‘begar to rol: in Thursday from
every directton, In every road
from every mrectios, Thursday.
afte:a2oon « % this ssrning, tire!
eye ould ceive’ velw-es of eran
name, shape and exe, filled to’
overflowitg with te young and,
old, bla:® and waite, rich and:
poor, ~—. sil gathering to witness:
today’s scene. From ‘he <ppola’
of the Court House Friday morn- :
ing you could see every road
wading into town Hterally lined
for two or three miles with ve-:
hicles, horses and people. By
jeleven A. M., the town was full.
land the road leading out to!:
where the Gallows had been
| erected about 3/4 mile from
town on the oid Salisbury road ---!
was blockaded by the surging
crowd coming and going and
awaiting in breathless suspense
the appearance or the Sheriff
and his guard. At 12 o'clock
sharp we repaired to the Jail,
and through the kindness of
Sheriff Millikan we were admit-
ted From one of the windows of
the Jdil up stairs we looked
down into the faces of 3,000 peo-
ple, as they waved and surged
around the front gate of the
Jail yard, watching and gazing’
at the fron: door of the Jail
BOWMAN, Thomas Pinkney, white, hanged Ashboro, Ne Ce, August 15
» 1879.
yo Mei FONE? SOMME NRF AE Ret dh oat RENT N T34
At ten minutes past ‘velve the
Sheriff appeared at tae froxt
‘door of the Jail and ca ‘ed ‘tne
roll of his guard of fifty men Ail
12:25 P.M, we followed the
@®heriff into the cell of the doom-
ed.man, and fourxnt nim -eady.
When the Sheriff «::proacmed to
place the rope arw-nd his <#&
he protested and axed that =
be allowed to ride t* the gallows
without wearing the ope a-onnd
his neck. but when he en ‘n-
formed that there. was no ni+<cv
how for him, he calmly as
quietly su@mitted. and the Sher
iff very Geliberateiy ac‘usted the
‘rope and bid him folicw. The
prisoner was led to the wagon
in whiek was pleced his coffin,
took a seat on it with *he Sher-
{ff an@ Dr. Lewis t was with
great @ifficulty that the guard
Kept back the anxious ang ex-
cited crowd. Everynody seemec
wild with an anxiety to see the
doomed and wretched p::soner
He had but little to say metweer
the Jali and the gallows. He only
remarked on the way that he
could not see “why so many
should have come herve today to
rejoice at his misfortunes anc
troubles ”
TUE PLACE OF EXECUTIO
The wagon cataining hi
H piatiorm attached to the ga!!sw
the Sheriff. Rev. A. P Tyre and
Rev. J. L. Giles ale accompani-
ed them. When the guards had
taken their positions, Rev. J. L.
Giles read the good old hymn in
the Methodist Hymn Book com-
mencing — “While life prolongs
around the gallows A: the con-
clusion of this Mr Giles offer-
ed a very earnest and feeling
1 Tos
discourse im respect to th
memory of Mr. Bowmans fiv
little children who are dead an
gone,. His text, is found in th
14th chapter and 12th verse o
Paul’s Epistle to the Romans:
“So then every cne of us shall
give an account of himself unto
God.” The discourse was brie
bit earnest and impressive.
was driven up by the side of va cusrd. As to what man can do, I
&
its precious light,” wki:a wasgood fight, I have finished my
sung feelingly by tha =menwork here, and I do hope that
prayer. This done, Mr. Giles sx«rest. And { trust and pray that
nounced that he had bee: *«-the good Lord wii} be kind to my
quested to preach 2 Tae little daughter which I
anging |
the only Power that can Save,
and offered a prayer, brief, but
;Most devout and feeling. Whew
(hr solemn “Amen” had roiled
came down.
| The Doomed Man remained on}
bbs knees during ali the sermon
‘an@ prayers and during the timef
he ‘ook twe drinks of water ands
ae stg Of tobacco.
i + the conciusion of Mr. Tyre’s|'
|Prayer, he roxe from rb i
and very deliberately sat down:
and then the Sheriff asked hime
if he had anything to aay,
my God in peace. Bad company:
and bad habits have brought me
here where you now see me,’-
les. And I ~ant t@ say to thel!
young peopwe whe are here,|:
never krep bad company and
never get into bad habits; If yous:
do, it wii ruin you as i hasi.
ruined -we. If it is for a crime}
.that I am here, I don’t know 18,7.
‘I am ignorant of it, 1 am not
:gutity of what I have been ac-
2
care not: You can only hurt.my]
and wpon this he stepped with'body you can only kill me for} «
wha: l have never done, but that} ©
is aii you can de. ? am willing to}.
go and J am ready. This ts all If:
have to confess and all I have to
say to you. I am honest in what]
I have said and I hope that Iam
right. — I think I have fought a
when my troubles and sufferings
are over here in this world to-
day, that my poor soul will go to}:
leave herind me. I wanted to see
her befure I left this world but
I cas do her no good now, J
hoje she will be saved.
My friends, I have told you as.
nigh the truth as I can and all
that I know. You have heard it
all and aii that you will ever
hear from me. I feel that I amy{
ready to go and meet my God, I
Sciia Meee
ESE
with an eagerness and. excite- |/When Mr. Giles concluded the > :
The Faithful Performance ment seemingly intense and in- |/Rev. A. P. Tyre invoked for the ean nt ra rca be
Of Sheriff Millikan describable. ; prisoner and the immense as- And I do hope and pray to God:
ae ; semblage the love and mercy of that I am right.” : ;
. Ce 7 5 .
OGRE SO IETS ORSON eet ae TR LE REC ei Ei
a wr “ wal, oo” Fad ve
SDI Ratan ete APSA Ct ile hee SCI
v
[get up she intended to leave
enough behind her when she
died to hang me, and it has
j come Just as she said. and her
threat is now to be fulfilled. 1
hope her poor soul is at rest to-
day if mine never gets there. I
can say with truth, that I kept:
her as good a home as common
People have. [ kept her some-
thing to tive on and somebody
to walt on ter whenever she
needed it. Tho’ If I could have
done as much more for her it
would make me feel better now.
I have had a hard time in this
world, but I hope that when my
trouble and suffering cease to-
day in this world that my poor
soul will go to rest. I have tried
to prepare myself as best I
knew how te meet my God in
peace. Iam Aonest in what I
have done and | hope and pray
to God that 1 am right, 1 have!
given you all the truth. If other
People have done wrong and)
hurt me, I can* help that.now.
I can’t tell you how my wife’s!
death happened. I may be wrong}
but I can’t reconcile how she;
knew a year beforehand what|
was coming. It seems strange to,
me but I will not tell what I
know. Shr is dead and gone and
I will go coday I will not let my!
troubles expose her. It will.
make no difference with you
who are my friends and hers, We!
are both done with you and this)
world anyway. If you would re-|
/member me, pay it in a kindness
ito the dear little daughter. |
leave behind I have told -he
truth. I have nothing more to
confess. The tortures of death
cannot draw out more than this
The last sun has thrown its|
light on me and before it sets
again my soul will be farther,
away than it is. This ends all;
I will ever say and confess to
you. To death [| resign my}
memory- ‘9 God I give my sou!
and to you, I 2ive and leave my
body as a recompense for your:
labor in relieving me of my
troubles and heiping and speed-
ing me to that sright home a-
bove where Justice, mercy and
peace will be mine forever and}
ever,
My firal farewe!) will be read
in the agony and ‘urtune of th.
death that f will die toda; in|
the sight of you and your Al-!
mighty Judge If you drop 4
tear, I will read it by the lix
of Heaven. I the face Of deatr.
I subseribe ter the last time the}
name of 1958
THOMAS FINKNEY BOWMAN. Courier-Tribune, Thursday, March 6, 1958
In Ja‘! Asheboro, N. Cc. —— Oo
Augw’ 29th i879
—_— — — _ —
880 31 SOUTHEASTERN REPORTER.
Conwell v. Mann, 100 N. C. 234, 6 S. E.. 782;
State v. Hargrave, 103 N. C. 328, 9 S. H. 406;
Edwards v. Phifer, 121 N. C. 388, 28 8. BE.
548; Norton v. Railroad Co., 122 N. C. 910,
934, 29 S. EB. 886. In the last case, on page
934, in line 13,1 a mistake of the printer in-
serted the word “objectionable” instead of
“unobjectionable.” What we said was: “That
the court is not required to give the special
instructions as asked, even when unobjection-
able,” if they are substantially included :in
the charge. A clear and connected charge,
giving all the proper instructions in their
logical order, without undue prominence to
any one phase of the case, is better calculated
to give the jury a correct impression of the
law, as applicable to the facts under consid-
eration, than can be obtained from any num:
ber of special instructions. Of course, the
prisoner has the right to have every reason-
able theory of his defense properly presented
to the jury; but when this is done he has
no further cause of complaint.
The exceptions are practically all pointed to
the provisions of chapter 85 of the Laws of
1893, the first two sections of which are as
follows:
“Section 1. All murder which shall be per-
petrated by means of poison, lying-in-wait,
imprisonment, starving, torture, or by any
kind of wilful, deliberate and premeditated
killing, or shall be committed in the perpetra-
tion or attempt to perpetrate any arson, rape,
robbery, burglary or other felony shall be
deemed to be murder in the first degree and
shall be punished with death.
“See, 2, All other kinds of murder shall be
deemed murder in the second degree, and
shall be punished with imprisonment of not
less than two nor more than thirty years in
the penitentiary.”
It has been settled by a long line of au-
thorities that the killing with a deadly weap-
on implies malice, and that, where it is ad-
‘mitted or proved beyond a reasonable doubt,
the prisoner is presumed to be guilty of mur- |
der, and the burden then rests upon him of
showing such facts as he relies on in mitiga-
tion or excuse. This rule of the common law
has never been questioned in this state.
State v. Byrd, 121 N. C. 684, 28 S. E. 353,
und cases therein cited. Since the passage
of the act of 1893, this presumption extends
only to murder in the second degree, and the
state is still required to prove beyond a rea-
sonable doubt the facts necessary to bring
the homicide within the statutory definition
of murder in the first degree. State v. Fuller,
114 N. C. 885, 898, 19 S. E. 797; State v.
Covington, 117 N. C. 834, 862, 23 S. E. 337;
State v. Wilcox, 118 N. C. 1131, 1132, 23 S. EB.
928; State v. Dowden, 118 N. C. 1145, 1150,
24 S. E. 722; State.v. Locklear, 118 N. C.
1154, 1157, 24 S. E. 410; State v. Thomas,
118 N. C. 1113, 1118, 24 S. E. 431; State v.
a. Cc.
Finle7, 118 N.C, 1161, 1172, % S. E. 495.
In this last case the eighth syllabus? is in-
correct, as it differs from the opinion in as-
serting the presumption of murder in the
first degree. Where the circumstances of the
killing do not bring it within the classes
which, by the statute, are made per se mur-
der in the first degree, the state must prove
deliberation and premeditation; but this it
may do circumstantially, and not necessarily
by express and positive evidence. If all the
circumstances surrounding the killing are
such as satisfy the jury beyond a reasonable
doubt that the homicide was willful, deliber-
ate, and premeditated, it is their duty to find
the prisoner guilty of murder in the first de-
gree. his is the rule deducible from all the
cases above cited, and is generally approved. 1
McClain, Cr. Law, § 359; Desty, Cr. Law, §
129k, p. 399; Bish. New Cr. Law, § 728,
subsec. 3. It appears from the evidence that
the prisoner had some words with the de-
ceased, went off, and came back in about an
hour, armed with a loaded gun, with which
he shot and killed deceased. We may well
adopt the words of the court in People v.
Conroy, 97 N. Y. 62, 72, and say that “we are
of the opinion that the jury was justified in
inferring, from the facts and circumstances
proved, that the death of the deceased was
the result of deliberation and premeditation
on the part of the prisoner.”
The several prayers of the prisoner to the
effect “that, to convict of murder in the first
degree, the prisoner must have used the same
degree of deliberation and premeditation as
would have been used if he had killed the
deceased with starvation,” etc., were proper-
ly refused. The law mentions certain kinds
of homicide which are per se murder in the
first degree, and then further provides that
“any other kind of willful, deliberate, and
premeditated killing” shall also constitute
murder in the first degree. In the former
class, deliberation and premeditation are pre-
sumed, while in the latter they must be prov-
ed. Even if we were to make the law read
“any other like kind” of killing, as contended
by the prisoner, we could see but little differ-
ence between the act of one who lies in wait
and one who arms himself, and goes to seek
his helpless and unsuspecting victim. We are
always willing and anxious to give to any
one charged with a capital felony the fullest
protection of the law, and it is only after the
gravest consideration that we ever affirm &
judgment carrying with it the sentence of
death. Whatever may have been his crimes,
he who stands in the shadow of the gallows
on the threshold of eternity receives our sin-
cere commiseration; but we owe a duty to
the majesty of the law, and to the helpless
thousands who can look to it alone for pro-
tection. In the performance of that duty, the
judgment must be affirmed.
1 In official volume.
2 In official volume.
Bei
N. ©.)
(128 N. C. 108)
POWELL v. MUTUAL BEN. LIFE INS, CO.
et al.
(Supreme Court of North Carolina. Nov. 1,
1898.)
InsURABLE INTEREST—VOID PoOLICY—PaYMENT TO
BENEFICIARY—RECOVERY.
1, A partner does not have an insurable in-
terest in his co-partner’s life.
2. Where a life policy was void because in-
sured assigned it to one without an insurable
Interest, the next of kin or personal repre-
sentative of the assignor cannot recover from
the beneficiary what insurer may have paid
him thereon.
Appeal from superior court, Craven county;
Brown, Judge.
Action by Emma H. Powell, executrix,
against the Mutual Benefit Life Insurance
Company and another. Judgment for de-
fendants, and plaintiff appeals. Affirmed.
Simmons, Pou & Ward and M. De W.
Stevenson, for appellant. W. W. Clark, O.
H. Guion, P. H. Pelletier, and Shepherd &
Busbee, for appellees.
| MONTGOMERY, J. This case differs from
that of Albert v. Insurance Co., 122 N. C.
92, 30 S. E. 327, in one most material re-
spect. In that case the person whose life
was insured paid all the premiums, and the
court did not find it necessary to decide
whether the beneficiary had an insurable in-
terest in the life of the insured person. In
the case before us, at the very time when
the policy was issued in which the life of
the plaintiff's intestate was insured, there
was an assignment of the policy to the bene-
ficiary (the defendant Dewey), who paid the
first and all of the premiums.
The first question that presents itself in
the case is, did the defendant have an insur-
able interest in the life of Powell, the plain-
tiff’s intestate? The defendant avers that
he did, and that the policy was duly and
legally assigned to him by the intestate. The
ground of this averment is that the plaintiff
aud intestate were co-partners. No particu-
lars of the partnership are set out. ‘There
is no averment that the deceased co-partuer,
Powell, was indebted to the plaintiff or to
the partnership in any amount, or that the
deceased was to furnish any labor, skilled, or
otherwise, as his contribution in lieu of mon-
ey. Upon such conditions, we are of the
opinion that the plaintiff had no insurable
interest in the life of the deceased partner.
In the case of Trinity College v. Insurance
Co., 118 N. C. 244, 18 S. E. 175, this court
said that ‘under certain conditions a part-
ner has an insurable interest in the life of
his co-partner”’; and cites Insurance Co. v.
Luchs, 108 U. S. 498, 2 Sup. Ct. 949. There,
the fact was that Luchs had furnished to
the co-partnership fund, for his co-partner
Dillingburgh, $5,000, which was unpaid. We
Suppose that was the condition referred to
in the opinion in the Trinity College Case,
PARKER y. NORFOLK & C. R. CO. 881
ble interest In the life of his co-partner. It
is true that in Insurance Co. v. Luchs, su-
pra, the court said that the continuance of
the partnership was also a reasonable ex-
pectation of advantage to Luchs, and gave
him an insurable interest in the life of his
co-partner. But we are of the opinion that
that position is against the weight of author-
{ty. The policy being void, then, because
the defendant had no insurable interest in
the life of Powell, no action could have been
maintained on It by the defendant against
the insurance company. Burbage v. Wind-
ley, 108 N. C. 358, 12 S. BE. 839. Neither can
the plaintiff maintain this action; for, look-
ing at it in any view, it has its foundation
on the policy, which is void. Burbage v.
Windley, supra. The plaintiff's counsel cit-
ed to us Cheeves vy. Anders, 87 Tex. 287, 28
S. W. 274, and 3 Am. & Eng. Enc. Law, p.
personal representative of the assignor of a
void policy could, in an action against the
beneficiary in such a_ policy, recover the
amount which had been paid to him by the
insurance company. But we cannot see the
principle upon which these authorities are
based, and the decisions themselves do not
give reasons for their existence. Besides,
that position has been condemned in Burbage
v. Windley, supra. No error.
(123 'N, C. 71)
PARKER y. NORFOLK & C. R. CO.
(Supreme Court of North Carolina. Nov. 1,
1898.)
Surrack WateR—DIVEKsioN--FLOWAGE— DAMAGES
—Review.
1. Although an upper holder of land may in-
crease and accelerate the flow of water in its
natural course upon the lower land, he cannot
divert other waters upon such land.
2. A railroad company has no greater right
to divert water upon other land from its right
of way than a private individual has.
3. A verdict based on conflicting evidence as
to damages is conclusive on the appellate court.
Appeal from superior court, Bertie county;
Brown, Judge.
Action by Henry Parker against the Nor-
folk & Carolina Railroad Company. Judg-
ment for plaintiff, and defendant appeals.
Affirmed.
George Cowper, for appellant.
Francis D.
Winston, for appellee.
FAIRCLOTH, C. J. The jury by their ver-
dict find that the defendant, in constructing
its road, wrongfully damaged the plaintiff's
land by diverting the waters of Long Pond
and Flat Pocosin upon said land, without
providing an adequate outlet for said waters.
This case to some extent involves the right
of the upper and lower tenants in draining
land, under common-law principles. That
question was settled in Mizell v. McGowan.
120 N. C. 184, 26 S. E. 783, in which it was
nuder which a partner might have an insura-
held that the dominant tenant had the right
592, to show that the next of kin or the .
> Gies|
wee Ah She
<¢ gal ty
58 iat a
st grate
ni ot beth
Fee” At odin ap igouiaidt capital by Any me!
& image
cote) ha,
image of the
» will peset
Axa dee
s the petemt 4
6, drunben-
ay telag 8
tact beard
jee of thom
eee cheme
op The, mab
in’. Biya.
+ with the
Ee hrminad
ae father of
ft: epire cou,
F ladigaities
peat rsan
utaces the reli
aitedt cerveks,”
free miljiona,
led to Siberia | 1
eam EN
J oppressed
ina The Ctr-
dy from their
tilt forbidden,
speak or write
ereecuted with
hey do not con-
Greek Church,
the Post, hat
Christian aliens
{38 toleration
of the Caer
“own “people ?
dP, oaeestos
expect of s
their shoes?”
th of strangers,
pected of a peo.
senor drag thera
se they will not
cipire % “)
audmptiog te to
&Mlintions ‘of
taker comf{utt
Boora, of Onli-
WReTtascy, gf
were \elected ‘as
e mfely (ended
RF party. Asa
the: Times that
it bimmelf to be
tannot be relied
forrect.. Tn fs
ta) generally bet
, OF, 8B may
bomely phone,
ani you
tadicnl” . There
1G BT tiles,
Ue great Ilene
Aa ip texdy and
ioe. to. the rule
niwha eauld de-
Daria deli¢s
1 OF te Suprem=
is “the ore
‘on $90 Prateral
B Onan stint
ta elortly is Fiat.
he feuneni hered
i rap Th
steesss Ga gle wa bern, were nee STieainen
Those: aty the fries Of ©
tet Be tp § geene ert Seid pple ce mae
ey tatewers.
on mas prtely jeremel prissension, « with=/
em, petty | rigded all the aprings Gf life.
tetigi-s of f fives thst ate baict. Pinduenees every day,
Bevguae the men that (lead thent sere mile
pani china, we
pth 2h tea tater
igainat (he
‘apital itr “America, locke!
mat peepenn: chiliey tk: Gast Of: tna, ‘Nas cor,
teenie A terrible. inlictment, ene be
cheewea, sual it the two are ty “he in Ora:
amagonized, we respec) iful
America PMs sperial missions: to'Cliris-
Waniee ft ar ay eaplial, that/Joba the }
frakemiant is farther, frony— the kingdom
than the swindling Presiden(of the oom
¥ that employs hin SET
Peofpoity.in the broker of fa nd whit> bet."
shoemaker is “just ws sate No. going ito
Jénee wood cu Suncaf, as the merehant
in going ta nis club, © Pinytoig ¢ cards tor
to the baton Clatr House.
ther. of at the corre
about the
This mpt?
ment hogsespand the
on the Avenue, this qu
ted that well-to-do per
tious, and ‘that the
are always vir
Sake an rs order-—that 3
tause a he wore gr
god Ginners and fived | ins fine house
who mnagipulated the “frauds ‘in Alachua
éounty, Florida, last year, and gave the |!
year for service in ove of tbe, departments
of the Federal Government in that sale
Thus reform goes inarching on. a
Tox Naw Engiand ahediocrats” ore
anxinus, to secure ‘the Temoval of Mr
Adadis, clerk of the Hause.’ The New
England Democrats are breciecly, five io
pumber, «
‘U. 6. bonds. No 'wondershe is so bitterly
epoca le the remonetization of silver. ©
a
aa
ELIZA BEI Cr8y EiTreR,
Staaicebiecenee of THe OMSERYER,} tes
* Euzaaete ie Dec. 15, 187%
Masses. Evrroes :-- Evstern North Cara.
Tina has aboot half tue ustial crope
fhe time the extortioners get Uhroagh ue
the tillers of the soil there | will be owthing
eft for the fariner or w¢' farmers’ wives
and litte ones.
We bavé a bouse bursa bere. sbout
mon place to. merit eoxument or notibe.
Ocr worthy Mayor has organized s night
patrol; )pesuits are of course witb the fur Be.
ture.
|. At Nixonton last aight we had athestrical
performance, coseert and ball, gotten up
fee the beoetlc of the rphas Asylon at
Onatord. . The theatrical. performance was
an entire success, "uoder the management |
of Mr, Jno. W, Beaver, one wf our moet
mteomed Ctirens. Mrs, ‘Sawyer, Mr. and
Mra. Banks, Mr, Jotin Cartwright and lady,
aud Mr. Beo Heil, were the principal par.
Uren updo the stage. Sap 1 satisfaction
wee giren toa large sod > Invelligent . aa-
Pieuce, aod «
Gat the Asytom.
.~ These conner's might ti eal toe sacl
of mach smusenent w our people as well
mot great erivettage 15. the Untied SSF,
hing and. ether: istg'a ieatitgtions,
‘ oat “DSDEPEXDESTS || 4
Binee ‘ag Pooks SoMa ~ We! baer
netined a great Many’ op ocuantry wagons
ip town for the pam several dave, lade:t
Bide Or Jere with the gid things of Mite
8B Chie Tat Loe
Sret of thea de
the ag)
bee switiary,
; He iaibathoe pee is the place to.buy your pro-
i duce sed pay gral pritca sn if, you bar
anythiog ts selb, bring Ht along,
every other week; this matter is too com. |.
ethe «stomach ve!
Kees foont Pecan warie e.
The? first tes ee
Mhere are p Ors Oxyeen Tes Ste iguBine 3 ioe
substance known to Se
, Ghat babor ta fy QE
cused et erred the. gros mins ¥ i
Uie
(iteulis in disinguishitig the diffetest
among fore, Titans mics :
hich
‘geP than prptanity in the. brieklayer. Phe mictscay
ttooey is notwarte in the . beer shop thao | are raateriatly srnilat though they differ
FO* be, tipsy 10
CET, AONE LO contains 3
bad net a
’ three wit
. ha 4 must ‘make | strychpme } before” the
special efforts to keep thy bhicktayem, car-
subsiange found: in the. stomach;
in the gher, parts in ny) testa, "This. pec?
A WasmsGros FLORES that Dawsus, sa for generat bay on the:
4 ay
State to Hayzs, is now drawing $1,800 a) 0 tained eit eter th slew
ko
ey (Da wot wi en
oi Rabpeet ee @ A ors
yt be to be exe Not ‘materiallye (>.
had determined b:
ence of strychnine.’ T appli
ona ose the Greate tegis.!
were “confirmatory. tn’¢ve: = ag
New Exétasp: holds "$400,000.000 in tasted the: su parade et
Sevan
ny you. sbberente | t
body?) AL Ag analytical
ary agale bun? eC
rye besurien, the views, | the'fa . , sage 2 Powe» Scrtiniee
oe - : hie. reiza in ber ¢ gorto the isin are
ig baw ypoevty ina of artianus add ens analytical r Ba,
an is as fsa
fs itindt, Yeey ,
Ma care: A: Been
nish. colors. "Phree.or four ftids
Soiiftraatory testa
pa ot the Bttyeh-
applied,” to various” kitbstan,
The-cight torts of: erystalizatiog |
some, pects Aléohot aumeslines’
was Ges Thiuured wee ape
x
_ Goel three thin.
ieertuin the f.
ai & grain.
<hnine is “used as’ a) medicine ) fora
14
Apt the
vo
U Mersity there are vone who bah! | Pye
mapectacke, ‘with
Droctiherranbog’ poansit ot i
ereumancen pt the et gnd oypaidrring
ried out b ag oe
fee sor ah oe
bis ‘orders ¢ he
poate to
ke om Teat the ‘Senator me.
88} me,F lll repeat Hoc ft
lers bai
mt hoe’ peep can
sir,
Mr.’Con!
‘opponent;
ihe
pave orders ia “hai
sors
} net tree? The}
fciiedly asked the Sena-
Liars at once sprang to
hea sy aatigten bling with anger |8
tai
toward’ Senator Gordoa, who was on the
opposite sideof (he ehamber, he plied fas
in eo ‘Houniania, who hac
anwittihg! y almost, every word of}:
erie > nh
fend wil talutetl. respert{ully.
{ spore en cme whic pe oy
| the herd of Plevna with the greatest adenie} stock ad brarriye,
j > 60 barrels Sugar...
me"
ne “Leon
npliiment f-
Plevna, ; it
tin the .
rose Lia placpaetg to
‘he Russiin officers
od
‘ation kod! symperh Prince Cuarles Uf
Tarrited, rode upaod}
; we Grated Dake! ani likewise sh nt linsidls |)
Low widens fee and bowed, | ’
net: bradeak, grim Sree He wore & bose |
‘Ag onleting,
hig words.
thon, Sui: fein “thal the Di
Bot,
prdrestca et
* what 09
bes
ili
aoe
"har mt
r, be. Bays what is
caine «with, suth
sips tometer Of fis fuer “ls covered with:
abort black’ %
Originater
“} shock in the diseivery that throagh gross
1 chal idee
cial, examines hag beed due to thé [5
it neglect Of the provisions of the
Pierier decid the. ‘cldas of investments }
{ no mark to designate hia rank,
beard without a streak -of
laren Homna mise and
se txelaigied: Clone! |
the Frenca military attache. sb}!
afraid of seeing himJeat my ex
‘abe hid’ be diaapp
‘ more than fuitis my ideal.”
iahlt's the face of, a great military chief.
fain, Raid Young, Seobeloh ok nta chad
(o dave Seen’ him: .Osnian Ghazal he is, and |
Oxenian’ they victorious | be yd cee in
: spite 9 of hig micreniter.” os | ty
hore !
saw) ate: eriet mill,
serhed and: nun by rev is
‘Kegs was entirely consam-
in the Hint -tooni from a°mateh
passing through the gin, and causing ini
taediate ignition ot the entire room.. «For-
tunately eS od ‘very ttle rotton in the
| pownda, in need, “beloncing ta Jos AL Pitt--
gran, 3°. Hawkiosand J.J. Ward. The
Hhrdpert y: wis” partially covered ‘by insur-
ance, fo whatlextent the writer: is-not in-
pformed.® Me. -J2 J Ward aod the man
running the gip bad # ‘harrow escape,
< Tae Nertowat Tucet. Company's Pais
eRe. —Pubiié' faith in the fotegrity of cor.
the | porate Management has received: another
wy ake pe and neglect. the eu; Be
the testiniony of spe-
ta be tide bythe company. Asusual, &
aber of the trustees were bares
De
a
F?
fe
been ee confised to oa a befuge the
"| bade: ‘One rigtit, eae in this dee,
| al
wet Sah: ft he x
OF M6 ) tfaoaactivns teferred to, dnd ““ex-
| cometh hea rein and indigns.
nici the: investigation bs | Riedel: se
te gens = *
2 BeocGrt eed ro Terun—The © wife of}.
‘a sdiall. farmerin Aberdeenshire, mie
hime. when. ber: lasi mo
the Beata. 5 who was RS 2 foe niggardly
ispusition, wt kon a gridgal to jet" ber
have so much awa light by the side of her
tomy she efclaip
gtanty pose, scacdie, ‘upd.
ing load ‘eer ay te the Rouse ort the
‘bed sald “There! Dee apap 794
ONewneiey on Naw Bexxt?-The New.
[fhe acar
‘ fowl Tom: pif pena very apa seen
wamzel
CoORDING te) Dive @2lewey “a
the sarteodgr uf (lattes reoaved a fH
: pate Sag apg Phe, spohoriay eid
rai ry feat “ia. history.":) adjoining our WEAT HOPS#, w)
he ic fame sharethary 18, STH, anid « ans
energics and give Doth pidees co
Seny tention, we hope to be becter alte 1
Large ‘not Neat Hu.thon ;Rumeroae patrons wh the
Mmoour hoe. “And to avotd te @ ti
ple-of moying, we will seit out
heavy groverjes at yadures prives.
| Adah offre Braid rte lute ree
Jone Sppteelintorg VISIT: NOR
H OLIDA
Remember to.0
Wl.
National Trast Company has
bat open @xtent. of 00. 008). This | ,
~ a
very:
Shey being’on the third floor of: the baud. |
ig —Newbern Nutthell. © iy
Bernia ¥ ng, says that
Pieris picts § Bw oBt apart rs
meut as New Berne.) The followtog ts
the Yeoord of ‘pinces of “Gna ur
the other word dag 29 Hail ‘couary,
Alsbamaj Ne jersey cogntyy: Tt
haois; “3 ewtora,, Baribch too aouaty,
od sbarka: Pm eet at atl :
ae se ae
“HMARGETT STRE
BEST GOO
40 ancks Coffee,
bearioad Molasses
50 botea Meat.
100 barrels Flour,
200 bushets Corn,
590 bushels Oats,
2S kegs Soda.
20 Uerces Lard.” *
50 bis Cakes and Cra
50 boxes Soup.
Wrenner
RENE MBER THE
F.C, ‘CHRISTOPHERS
. 2 Beers North of Mo
WILMINGTON 8
and Jett ¥
DO you. INTEN
Hi DURING THE
-1F $0, -
[Ml
j r ‘AND
EXAMINE, ite
oe NOELO
[Te Wik P Ams
‘202: Main ™
+ satan
a ett
STORE FOR
Tes eteee RECENT 7
CArtaophers &
Bt VIRUS OF
eu, by vor alt
wu CAROLINA
COMPANY, ag a eortain
une det, and registers
beeen aks county: Root
Monday, ‘Jen 14k 187
wnt aba “wife ‘anid Tittle: “unk.
rae heen
Ft ine a py
Eareka Merl Ol be the chtmpeet,
* amt tncet be‘fian! nom ezphaive vil lo the
shat
‘mosey for ic rH cts Wading pd pe tier vs 4 i
Coe A
iw; on, 3s is
vie
submits te Ma
ou rap aby Joma to. aif
th mk by: Romane
alt
© EXINGTON $1,
powers eee
mei
ee, ee ee eee
was ee
IN THE SUPREME COURT. [78
STATE Vv: JAYNES.
time of the occurrence.” Whether it covers the whole, or a part only, the
effect of the evidence is a matter for the jury, and they may give it the
weight they may think it entitled to. The evidence was competent and
therefore admissible, and it was an invasion of the province of the jury
to tell them that unless the proof covered the whole time of the transac-
tion it lacked the essential element of successful proof. The burden of
proving an alibi did not rest upon the prisoner. The burden remained
upon the State to satisfy the jury upon the whole evidence of the guilt of
the prisoner. It was only necessary for the prisoner in his defense to
produce such an amount of testimony, whether by evidence tending to
show an alibi or otherwise, as to produce in the minds of the jury a
reasonable doubt of his guilt. But we think the subsequent part of the
charge immediately following had the effect of curing the error of
(507) the first part, by presenting to the jury the true way of passing
upon the evidence of the alibi, to wit: “that it was for the jury
to say whether the prisoner might have left, or did leave his bed, commit
the deed, and return before the alarm of fire was given.” And in giving
this instruction it was not improper to add those usual cautions which
are necessary in dealing with this kind of evidence, which is regarded
with suspicion unless it should cover the whole time of the transaction.
Such evidence for the State, if believed, makes out a clear case of guilt;
though doubtless there may be cases where it is the only evidence in the
power of the defendant to give, and where justice can be vindicated only
by introducing it. But under even such circumstances it should be
closely scrutinized because of its liability to abuse.
3. The court admitted parol evidence of the ownership of the mill.
This was proper. The title was not in issue, and if it had been, proof of
possession was prima facie evidence of title and sufficient. , S. v. Rose-
man, 66 N. C., 634.
4, A motion in arrest of judgment was made for the insufficiency of
the indictment. The charge in the bill is that the prisoner “feloniously,
unlawfully, and maliciously did set fire to and burn one mill there situ-
ate,” ete. It is insisted that the indictment fails to describe the kind of
mill, so as to show that it was such a mill as the law has taken under its
protection. The indictment is framed upon chapter 228, Laws 1874-75,
so much of which as is necessary to our case is in the following words:
“Whoever shall unlawfully and maliciously set fire to any church, chapel,
or meeting-house, or shall unlawfully and maliciously set fire to any
house, stable, coach-house, outhouse, warehouse, shop, mill or granary,
shall be guilty of felony,” etc. The indictment, it is seen, pur-
sues the words of the act, which the authorities inform us is generally
the safest and best way of charging a statutory offense. It is un-
340
N. O.] JANUARY TERM, 1878.
STATE v. BOWMAN.
reasonable to suppose that the act had reference to any other than (508)
mills constructed for manufacturing purposes. This is evident
from its association in the act with other property of the highest value
such as warehouses, granaries, churches, chapels, and meeting-houses.
But this act must be taken in connection with the other statute laws of
the State ™ part materia, and by reference to Bat. Rev., ch. 72, title
Mills,” it will be found that the several kinds of mills are designated,
and regulations are prescribed for their use and government. Grint.
mills are among those named, and are declared to be public mills. The
act In question was clearly intended to protect grist-mills, which the evi-
dence discloses this to have been. We think ;
the offense charged. — no one could be misled as to
Per Curram. No error
Cited: S. v. Phifer, 90 N. C., 723; 8. v. Starnes, 94 N. C., 980; S. v.
Daniel, 121 N. G., 576, 877-8. & Sore 150 N
156 N. C., 642. ark. Preuns, . C., 861; 8. v. Rochelle,
(509)
STATE vy. THOMAS Pp. BOWMAN.
at
Indictment—M urder—E vidence—Expert.
‘
1. The opinion of an expert, warranted onl i
4 y by assuming the truthfulness and
accuracy of what has been testified to by witnesses, is not admissible.
2. Such evidence is competent only when founded on facts within the per-
9 U
3. Where, on a trial for murder, a physician who stated that he had heard
the statements of the witnesses as to the circumstances immediately pre-
ceding the illness of the deceased, the appearance of the body immedi-
ately after death, the condition of the limbs, ete., and could therefrom
form an opinion as to the cause of death, was permitted to testify what
in his opinion was the cause of the death of the deceased: Held, to be
error. :
Murperr, removed from Rockingham and tried at December Special
Term, 1877, of Guitrorp, before Buxton, J.
That portion of the case which constitutes the basis of the decision of
this Court is sufficiently set out in the opinion delivered by the Chief
Justice. Verdict of guilty. Appeal by the defendant.
Attorney-General and Boyd & Reid for the State.
J.T. Morehead and J. E. Boyd for the defendant.
341
suo"UL * N¥NMOg
9)
ON ‘Odoqeusy pesuey ‘oqtum fey
"6Z9T *62 Asn3ny uo *
bes eed
—
‘o~
aN
a)
NY
: crag MASSES. | formar ow) Wkomis P) > eg. wien mAuunen.
é : 8 ot be ath 4 pied De say ALON Hanvtrn the pe ‘
epoca me ae | oo ainanel or le are aap peepee redenaod RARER
popiilaci'y la the sromerfat amoant of vir- te ‘elt ‘ho . * . ret a pier ‘SmithGeld, meets! HO Sor pervs Mut v9 Mine Bas
: z n ouvert
* foe, intelligence and tategrity possessed by z Ke pasik: we ‘es i¥AN. ©.
t3 : } ALTERS YONG. 3 Cas
what they are pleasstito sera the “bonest b Sand °all'earn- {| 19h Septemnet, by Ree Mr
be a a's bill, ape } 8. WAT ARy 10 Mise Saleen, ee
masees of the people. While on ithe ot t that purges, puny |, FAL HEH-RRADSNER O90. p>
fe hard, with axisther “class An’ equally ft hiring the premepit session. 7: Ieee Reena Basseaem silat Pechons
write theme 1@. ‘the wonderful whit all iin settion lerfustly eotitied 10 SOME | tA MEER T= LVR ph I
these sunie sg a “PS bear these, poo Pam a. cheini : j epee ei Fe at train: | Perens is muna Haltay
4) P ithe Neuse, *° x a
t ple talk one woul { chhok-thivt all at be work eases bt cok 43 err te ot we : ee teckon. ant Congress | PROOKS-CROW DER «By
<} wens (lived! ints iw ben, ane ingiods, aoe jnat. ne rongbal o> hax’ 5 ae ht Med ting jon would smut} Ne SN hat i res “i ore @
Fntatl feoorable sand rich, (eB the anak rane 5 ° x plates Oe | & i r Me miGhet eat 7: ye
“okt sua bahaee oF iat ieoorabie- aol Snes Ret om! | Was of psi charing iq ih egg
poor, (spd phe reve tye. ti here Free No ieee ENTS | LL arena The records
J Welho more cohwnent: the, demagog te aE srain: she's f cane ae 3 paene i" (} fora trees 9 10 1673, €208.000,000 Dave | ener
sehkeaa see po wrong in the! inas 38" CPT | phese neh a ong a ; et for Te he bag Se 9 AE asckuot fe
han we commend the men, Who can see ‘B7 | folitect bears L
good in nem, bul if terete any one thiow) pny 0
4} Bx we are bearrily tired of, Wri he Wea the
“ft thatthe posscasions of money necessarily } k
Repres De posasaion of wiring, and intel! + ‘
hygesee, Sand bonbra’ te ‘notions; ‘and ft. ra i
5 ba labpratory <M ‘ /
_} shia) ‘which iss a Dioney worshipping se. sight all. th ‘
a8 have becuiallacbers chet there Upreceded } In ther laboratory, neeul
it, theré is pruch ‘more danger: from ‘be | na drawer erent deing
talk of the tous Who { aches 10 wealth abd siyown seal. ec gulik +
2 rack than there is in that of the dema- 1.60. of
eigue who peders to the! masses. “So we | st cle the strych:
thipk.and; so evidently thirks:the New hare} iS bite: tet
York’ GaurA Joxraal a feading represen} Si Lave bedbs stadying {ar veura (Very 3
tative of opinion. in the Prxesiant Epis, with a view. to make balay poperel pir a : nity ‘ ee De
* Salty acon poison louis @, branch of | @ ol aod tale i gles “rate on
F f ‘i ° the stilpping facilities this bs mest to pe |
a whe pipes beg seeps work ts of Ch nani payee
it has ees taker wp) by the blond Tamla’) * seh Sur, Pe the greatest, importance “to. ¥ le CITY of RAL FiGte,
: veiological teste with, tbe strychnine |. Q.- What nae time tor, persone | oa the line. of Mihe river, fram i ;
ae 5 my, waht ond rh fhe tose wit ee his : ithiielit on dows to Newbern. it wonld | ae hep be opis
iin Tike } Feixind snd eeneivic thingy thal we Fent™" gome of ity) 1, clipped Sof «frog ip hey: ie ot tai inthe dersipage apd - redemption of |
duce them “here * fore the beret “of, nga fon acer ot ot be bnineiwhich! the case i i so 2 thovsands upan thousands of arres of the |
Loreen lt Megs. ha ee, ee mie ise fee nine is ba nal!’ i “todet_ fertile Sarnsinge hinds in this part, of ; of :
All this ta"s 2 ey ‘ ae pice ie ep hoes ee ite ¥ : Symons, unt hs toe, diaie,” Limwae™ po ies rivet a ite ety, F
=) ing’ them, 6 oct 4 ‘hris ¥ prod’ 4 yone) by seryen. |: Sy ee tae ane pee OF Foe, che! eee
| sheloum: dia Te the ceeaoees tlh of eee meses] eee eral; vine: dey i het rade Og ae ora j aoc M1 stesso te MABE Hoe é
hug success | fst pts bi —& | 5 , Parka sand a £7 4
2 a sn. j sh okt Ae “0 : a Siar bal “newer 74) ows womale ft , beatausbie Neph aapply of “excellent, Unter. trae if
pe! mance: (which 1 fou worthless: aact aha Bes 3 fur Want of } na Te Fecetted Woe
at be Wed thai Wealth carries “ tesponsiti lity, S hy Pome i iste, Guyer VE. fp mast
kre + se bic iy Ce ed Indes “aged the: ! ake oe ha dies Sanger isthe opportune “tiene ib é § E AND
sjlatiog Of } wares ~his wcalpe, in gorficetion cf us ; A are ver ads eth sinfthacchaie Pad
are those | Own Coairy fT the hand: We bare eat Sipe ee
Puli ss am centain’y anime few th : 1 Hil
peat fefore eed oy eae A. RARE. CHA
pe pie Of Abie ov" being ‘ ne, nplinal Solu g : ¥ OR
Fr * t
* " in Sontact Lm ae age .
Loam, 125 FOR ‘ Shan ras exo CArrTRED Tom i
heabay rt of na ” : = ey Tandon: December 18,-4T hii ae e GOOD, BARGA
0 orber : ‘of ftlre boc ‘ Oe.
res moe plane ot anger | beter” i i seoteersily, Ce! gailia'y recep | SPECIAL ISBLCT: "
eaay, Biolet the poor men's bread, bri- seat. ant Forties tees 10. hae bay lands TET OF BRED TY) TH
‘ ted eI ‘ wg Satara, and cor- as iets wot necessary. oie pene eM eosrmmi 1 once ae ee: rie oli ob
pupied the nai c ftotn Cabinet min- ne a htt Spa se pear Esa Go ‘ un t ry T r
pistere to tice walters, were ant wx rkingmen Ks
Thence are, the Cis sb Capital aguinnt tbe | teaggi ae noe | .
by angie puertmnicyy iment |
sifekd Mot 2 at the othe Hiden y the farndty I rf pind bo. Odes ie HARGETT STR!
- aids Bake rahe argh Sh on: eine Seign to Bie 9 | ‘bnowt apleodid military, feat “4 iets 5 our MEAT Tol se
io | great ties dre pot the ane Of, atisans mek Omura anstled emily, tae) painfilly.to his yee RE L4G, TS T9, week Ce
don is bo | COE fadorers, Capual in’ America, feet in. epite of bte-womnd, ‘an:} wail ap quence fivere pea, pars
E- personal passcenion, Wi he } ti iets at) hv. ne 9 Soe
er dici cacicy vod Ur pan, has ches The Phrase which. use ree Le fos ‘inom te oleate: alla toy ge api
p peetty | roped alt the springy sf live i) There are or oxygen test, Strychojae) Is * peewee Bidets corona tamil tsa SiR)? pbk Bc akah Go”
temps of pirves thal are bail. infuences every day. Knows Wo Gece Baoorte ‘end'al} saluted irespoctfuily 2 'Ybere was ! 14 ourifid Ami ast tt
Af ang | Cecase sh met 318 jead them wre mib![ tne ee Sime found phon tad opposed Sb bne maine hens hd Gk Pik-ens- on | > Se Tee NY vant
‘ v i d rarer was reed ¥
Sore, He aaecae rebiatones pe: eye ve | teat, iveeel ep eae the hero of Plevea witb the greatest acti. | oes be acne
¢ @ telangielt etx Ait A See § Seoate wax purhting. rating and sympelb¥. “Prince Cuarles « t) . SO barrels Sugar.
MN elvwiece, aud ithe twelare to be inceally. j (Rommantia who bad writed, rode Y: uy tr
cotnite a ain, pamlagotiaet, we Di 0g we hea tes bt ex- ‘repeated’ anwitiin ziy almost ev ae / 40 cache € hs es ee
Pac er he dtd TES Rigel, See liga Pte per
Atherila weeds) = niente Chrig- swith ett ees
: teniad Healer eapeat chee dohgy the M Gormety there ate 01 3B Pct Labee’ lsh Al ite La nt) rma pogo rb papne nena:
And be rare ; the ks " i \ em 8 [He wore a loots 200 bushels ¢ ore
et om bah; nthe eae 5 fal colors. nth pee thie sul , “hitler Dior cloak, bo muirk tot designate hia rank. f S00 bushels Ont’
Prine tea an ie serene oe ri une e' sat sf} toneeees bar!
ae rotaniiy ih the bee ‘ ,
ee hte 18 | toy thes, Byte ia pada n tt shen bes a a Roman pow and! . SO bis Cakes and |
when tewtei t wieemakeris Som ae) ite oe pote! : sz “80 bods SOUP
ion OF ties PURE Wout os Soudan, ne Mie, meretiant éxthaidied Colonel > ygu wot thes ;
ook. ‘cherteh | ming Vs ‘nie “chats, : ivi soarts tie a f 7. rf hee r ¢ : mh bs ‘
ba ceey ie he) arse to thee rs ‘differ: ri : f fl . Pr vat
pThe” ga. ip Gov teens Utaly fecal it Prat be ae ’ Bn + pecuntions Wbeulll be ints but be! ‘—2 w tT a “a ;
re ree eet tor at Ane sb ay serv unis teense Font winch £ 7 , wes ati or ve i!
he the Pe ally ' tty ak tt tee De wenn j
Th. "E bin’ aeeirigt iat ial gin lees io’ lene ty tye the: ott aoe tates ok Ae Sexy tea! Pane ry HE
; poise Bap ates incl Hie Besa virtugs Free de 4 ma VE} ver tae a 3 FS Cet tw ay F ‘ it seats ota, wa and} FG. CHRIST nt
bein at fn ge A vigns Abin pitt ak Dye fer gran. 5 Mite ey tse 8S Se . : { ord if Sabecitbs.= 2) dea cca: Be a panne sere 1
a Ha welidGela feople are always vie’ wee there. obnut ‘ ate ane: : t aoe i hiked yxot J
: fea aa ath if gk ol nk anon ein led uate gm HT Leo capa pearene ae eee oa
{ inlhbsving | tee ja The as : “were oh) “iat mo Nbeh cuit Men's tye, Dek Rahat atenm: pa word eat mil, 9” U INT, 5
Ny, tice “aonini| ewe lait and ey Knit wn the aysialiy | plato fas hy Be afte, wd nG wohaberonyre Tats bet pon ty JA, DO. SOV i
: Pee Che cote | Men geroin weed ® Sane ole remy as F eatin Th. eA a> ot bio . , " % ae ote ee re een stl j
Wed Srvc s > ere irre ni in ine plaré« Mrehge ros ag Byasahe he ee an Leet setts be ene Wkor Way. ‘phe. Fe sctgqnsaeed on bi vi SIF hes ig
me iit na | I ee ihe tpenes FETT ‘ a false hadi epi Fh st b ‘ i : + cadsiay Frome ow frst
‘ abet eve ae WTI rien ef : Vind aeigieial bf, tho Rng faeyy Fron ow melee
i Bhat Peis nt sree. aa oe tie Nahas Pwr oay iw pet Ws, pasnidg thinaucty thor et, esa Corsini bet 1
fiethane he Goats, | Paestiate reer oe the sais rm BWW |
4 i ae Rareiet) fire wae. very Biba be gente ME pot
Se oie, “ed ee a te gic gf inte work wall : ; het pe: : che Oyk en pointing wt the ane ot ebietiend 4588" | L 1 |
4 piel aw wie tne wif hae eet pie Bb ‘ Hie © gm mm yp ent ee Ea wat aecdere ty hed ff te ay deen $e ay: tw wel, “Maio et ‘ bs:
: ae pels aad WS Pape Heer shave i, ieatemat che Uhend Unity Tae ee at ae tent Ts wed ,
~ pila hanes Si 4 F Me Ri ae yerially, oneiers! tev dle i
. Be eoorad aes aoe mye ‘dl we +55 tel wha alent cid weet tin Spee ; 4
a joven ited J bedbe onl es sham mee on a
pte rage tek
i oe as s geet 3 igi
carey ts
Te,
( \ %
a
a “
2/2o ig ‘= ?
Pheer ye, Se 7
£4 few Cnited States Ineopa and State nus
tia m thé. county havg been: surrounded.
ppant Buda Wlieved, it Is feared they}
The Bispaich Ire Loe bd
Pp Assiatance from 1 si
den! was ceffrred to the Secretary of, Whe, |
a by pe to ionet te ish ove ar |
telegrap! ‘Geneni! Sheri to wend § {
all. the troops he “Gould, ~The latter } {
sb ddered troop as follows: From Fort Bay- | {
4 AM NAM. fel gy waite teen Bl Pas, four |
: vies cavalry, 125 men, one pompany | {
te: e infantry,’ 39 mun; Fort Stanton, N. M.. |
j they wanted, convinced Fe ® milea,'3 coinpanies -easalry, ‘487 mes. |
f } Bepation of Gaurees. onec spparently. 4 Foorpacy tofantry; 80 theft ; Manta Fe} |
| Bocodiens, come! their opposition under Lparticinigre, of a bei : Fa ro fe es Som mocha
° | se-atfectitiog OF public virtwe,. They dis-| tain. land (thet beds: ed Betty “ Slaiply ind Louia D. Hen} ve and ee baa a : |
b asiter only Megat Rnd: woody abe ruin te ferimese see fie at etn hott dubs: Badger wus n relative of Suabty |
‘ee bl se ef the generarity (of the | ye, ca think this’ stale! adit her seqpad wea vised cvery honoratle Fy |
govereaient, and, with s cingnorous sf ; ; : ‘on she fle 4
‘ pebeqnticn le Iberia court Witt past
repactty, org bud. mgtinet the farther reen: pervs dat
pepunileting Able montys to aid pr] p. boon these. "Thare' te: & af ; Joba” iy, ow s ; - ‘her | 3 phe from Fort “Bayard = i
wee emterprises, |: They xorged until. they Paper : printed shere cenflett 1:7) | ae: Graham © was’ SMtanly's | U9: 1 De: rvact San Biigany tomerrow. and with | :
pute “id po nord, ot, My haply* not yet : Audoers mination af) sequid t with Spaight, and: thelr fy Ptinwe feom Port Stanton will he sufficient |
quite eaiisfiedt, Would debs }y the Soath ii i 44 ide oe ‘el out timate fon ready. to keep the peace. ‘The affair ts purely |
say pellicipation in what ‘there tay re-} dba in the Ni Bern Se pe =i Seti 8" ney oH ; ; local; andiné serioné complications are an- |
< | giain $0 be Gippropriated.. « Bat whether : e fotniet ' ag 5 de fe eae 9 whi ; ‘The Mexieans whohave joined |
‘| agting-wider the inituenee of 3 surfeit, or} t ‘between them. “was}; : 4 apm Engrs es 8 tsi a ‘ i
‘ an et ce
"| gievated anc ekocere, Dut, ta-the changed } ytante J b eas ; Pree the Rew Voc Thee, 1:7
sonditine of ataics, and modes'of thought, Ue “ue y, lack + refuge “UKs #as'lo"have been expected, fumurs {
") Gekt bokreely wife’ rotiooality. In sbere| B ennea’ ig the late war, and
y, (| Pema of theright Of the \Geadral (Gov the
{ “f wwament to grant sid to what are erro
Beously called | private. enturpriees, ’ they
plant ‘theniseleds “upon © tue § Constita-
of How Pray, .apoo what | Constitution?) ‘
“} ig it the Comatihution for which Cray he... recent 2
pend Waneree sand Carr's baitied po re MSR peace to the Riitars while
i fully sod @o..vainly tot poteerve? Ia N if large meeting of Hungarians bas w: th
vs "
«| ether Conafitaton which fanstica ang : pareies Ne here sab pomp ay force
it x ake necessary, gresaions 86.3.
BO he cakerntae denounced as 8” COveDamt) vertisements, to write 7 Meantime, the senna Governmes
te send death, sod « league with bell?’ ia it) be of use to people’ Wio' are P ‘wery ped : & doce -f ’ is reported to. ave intimated .to. Turk;
ees the Constitution, whica, whea these extre| location. L-bope ‘ode t : ° e that direct aegotiations will be more likes
S| mice hed 9) decreed its chaFacter, was ax epee ap Stpciie well £54 1) pa poses. the
‘© 4 quietly laid aside acuoag the musty records} ° j i event patacea Aiwieee the
<- | Gt be paay.? Is ie et Goomitatiee, whith, Labi as Russia could not havg gone as far ss si
a wheb the par ase wes: from ‘te ; has, could not, indeed, slave stirred a st
al ita hiding place with bypucritical reverence} ¢ Pevolstceary der rp ah Be a doerias Hiuoe = Oo
taf 800 set Up, pad eee! a ¥ natigbs! npeneey d eid. Liersany abe will cee nin Fa
igs | SALE, But ‘not wotit it, lab sea ’ au - | Gully to what t two powers, at 4
| with, and patched and akered af hardly tol] Tom Deraces heel se pineaiy btn
“4 be “recognized? “Is it that Constitution, { ‘ 4 ype teapeetars eg be
a Soe aos END ea gg ep sidered a th mt
te wWhidh so petéted aati amended, was theust the three eit A foe lan:
ig, | owe “the throeta of vanwilling “States, there is none of the great nasloms; tov
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ae | Reena eta te bare See uae |
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| Authorship St a pacubiar mete <0 the Aha of Fo dy geal
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+ ‘Tie Stpegmy fie rica ie geet peo P55 f a tt o My ined Toy ‘he. tiver, Ywart Riduerys | mate ae bigh aa} Bb
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be tA sates
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34 NO 199 SOUTH BAST
N.C. 795, 111 S.E. 869 at page 871]; State
v. McClure, [166 N.C. 321, 81 S.E. 458].’”
State v. Payne, supra, 197 S.E. page 579,
and cases cited.
[6] “ ‘Deliberation means that the act
is done in a cool state of the blood. It
does not’ mean brooding over it or re-
flecting upon it for a week, a day, or an
hotr, or any other appreciable length of
time, but it means an intention to kill,
executed by the defendant in a cool state
of the blood, in furtherance of a fixed
design to gratify a feeling of revenge,
or to accomplish some unlawful purpose,
and not under the influence of a violent
passion, suddenly aroused by some lawful
or just cause or legal provocation. State
v. Benson, supra [183 N.C. 795, 111 S.E.
869, 871].’” State v, Payne, supra, 197 S,
Y, Se
[7] “Evidence of threats are admissible
and may be offered as tending to show pre-
meditation and deliberation, and previous
express malice, which are necessary to
convict of murder in the first degree.”
State v. Payne, supra, 197 S.E. 577, and
cases cited.
[8] “ ‘General threats to kill not shown
to have any reference to the deceased are
not admissible in evidence; but a threat to
kill or injure some one not definitely desig-
nated is admissible in evidence, where oth-
er facts adduced give individuation to it.
State v. Shouse, supra [166 N.C. 306, 81
S.E. 333, 334].’” State v. Payne, supra.
’ [9] “The manner of the killing by [de-
fendant], his acts and conduct attending its
commission, and his declarations imme-
diately connected therewith, were evidence
of express malice.” State v. Robertson,
166 N.C. 356, 81 S.E. 689, 692. State v,
Cox, 153 N.C. 638, 69 S.E. 419.
[10] “In determining the question of
premeditation and deliberation, it is proper
for the jury to take into consideration the
conduct of the prisoner, before and after,
as well as at the time of, the homicide,
and all the attendant circumstances.”
Stacy, C. J., in State v. Evans, 198 N.C.
82, 150 S.E. 678, 679.
[11] Applying these well settled prin-
ciples, the evidence in the case at bar is
sufficient to be submitted to the jury on
the first degree murder charge. The threat
at the schoolhouse, though general, was
given individuation when the defendant,
within two and a half hours after making
ANE LS Abie 6 Oy
ERN REPORTER
it, did the very thing he threatened to do—
killed a girl. And it is pertinent both on
malice and on premeditation and delibera-
tion. His declaration and conduct im-
mediately after committing the act mani-
fests a coolness worthy of consideration
by the jury. The statement to the officers,
“I killed her because I loved her, and I
told her if I ever caught her I was going
to kill her’, is expressive of specific
threat. Then, too, the atrocious manner
in which he cut ‘her throat is evidence of
express malice and a fixed purpose to make
the deed complete.
[12] (2) Did the court below commit
error in failing to charge the jury on
the presumption of innocence of defendant?
This question has been decided adversely
to defendant in the cases of State v. Bos-
well, 194 N.C. 260, 139 S.E. 374; State
v. Rose, 200 N.C. 342, 156 S.E. 916, and
State v. Herring, 201 N.C. 543, 160 S.E.
891. In the charge to the jury, the court
below defined murder in the second degree,
and murder in the first degree in accord-
ance with the well settled law. of this
State. The court clearly placed the bur-
den of proof upon the State to satisfy
the jury from the evidence beyond a rea-
sonable doubt that the defendant prior
to the time of the killing formed a purpose
to kill the deceased, and that such design
to kill was formed with deliberation and
premeditation, and that in pursuance of
such design the defendant killed the de-
ceased. The court fully defined reason-
able doubt. No exception is taken to any
part of the charge on the law so declared
by the court.
[13-15] (3) There is exception to this
portion of the charge: “And I charge you
that in order for this plea of insanity to
be a complete defense in this case, you
must find that the prisoner at the time he
killed deceased was incapable of having a
criminal intent”. This is part of a sen-
tence in which the court correctly charged
on the burden of proof upon this plea. It
is contended that the portion to which
exception is taken is an expression of
opinion forbidden by C.S. § 564. This posi-
tion is not well taken. It is settled law in
this State that when in a homicide case,
the defendant interposes a plea of insanity,
he says by this plea that he did the killing,
but the act is cne for which he is not re-
sponsible. State v. Terry, 173 N.C. 761,
92 S.E. 154. This is an affirmative defense.
State v. Alston, 214 N.C. 93, 197 S.E. 719.
{16] (4) Exception is taken to what is
contended by defendant to be a misstate-
ment of the evidence by the court in stat-
ing a contention of the State. If incorrect-
ly stated, the matter was not called to the
attention of the court at the time, and
cannot be held for prejudicial error. State
v. Burton, 172 N.C. 939, 90-S.E. 561;
Sorrells vy. Decker, 212 N.C. 251,:193-SF:
14,
After most careful consideration we are
of opinion that the case has been fairly
tried, and we find
No error.
214 N.C. 271
KENNEDY y., TOWN OF WILKESBORO
et al.
No. 235.
Supreme Court of North Carolina,
Oct. 12, 1938.
!. Municipal corporations €=968(1)
Where pending election contest de jure
board of commissioners of town, when in
unobstructed possession of the offices and
in regular and Proper form, adopted a bud-
Set and fixed the tax rate at $1.50 per hun-
dred dollars valuation, following which de
facto board took office, adopted a budget and
fixed a levy of $1.25 per hundred, after
which de jure board having been adjudicat-
ed entitled to office adopted proper resolu-
tlon declaring that regular budget and tax
levy had theretofore been made by them and
again fixed tax rate at $1.50 per hundred
dollars, tax levy of the de facto board could
hot be upheld as a valid act of the taxing
authorities of the town.
2. Municipal corporations €>976§
Where pending election contest de jure
board of commissioners of a town when in
unobstructed possession of offices adopted a
budget and fixed tax rate at $1.50 per hun-
dred dollars valuation, following which de
facto board took office and finding no rec-
ord of budget and levy adopted a budget and
fixed a levy of $1.25 per hundred, after
which de jure commissioners were adjudi-
cated entitled to office and reaffirmed levy
theretofore made by them, taxpayers who
KENNEDY y. TOWN OF WILKESBORO
199 8.E,
N.C. 35
made payment to de facto officers at rate
of $1.25 per hundred dollars valuation were
entitled to full credit for the amount so
paid, but were Hable to the town for the
difference between the two rates,
_
Appeal from Superior Court, Wilkes
County; J. Will Pless, Jr., Judge.
Action by B. J. Kennedy, in behalf of
himself and all other taxpayers of the
Town of Wilkesboro, who care to make
themselves Parties, against the Town of
Wilkesboro and others to determine the
lawful tax rate for the Town of Wilkes-
boro for the year 1935, and to restrain the
enforcement of the collection of taxes al-
leged to have been improperly levied for
that year. From the judgment, plaintiff
appeals,
Affirmed.
This was an action to determine the law-
ful tax rate for the Town of Wilkesboro
for the year 1935, and to restrain the en-
forcement of the collection of taxes alleged
to have been improperly levied for that
year.
It was agreed that the Judge residin
below should find the rie on a) side
“from the pleadings filed therein, and draw
his conclusions of law from the facts so
found.” There appears to be no controver-
Sy as to the facts alleged in the pleadings,
Thereupon His Honor found the follow-
ing facts:
“C, E, Lenderman, Joe R. Barber, R. R.
Reins, and L. B. Dula, were legally elected
as the Board of Commissioners of the
Town of Wilkesboro at the municipal elec-
tion for said town, held in May, 1935, and
that W. E. Harris was elected Mayor in
the same election; that there was a contest
over said election in which certain litiga-
tion was had, and pending the final deter-
mination of the litigation, another group
of officers were installed as the officials of
said town for a period of several months;
but it was finally determined that the offi-
cials as above named were the duly elected
officials of the town. Pending the time of
the election and the installation of the de
facto board of officials the legally elected
officials properly adopted a budget and fix-
ed as tax levy on the property in said town
at $1.50 per hundred dollars valuation, all
said adoption and levy being regular and
legal in every respect; but the Proceedings
were not recorded upon the books of the
MAYERS
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SCUCOL OF LS.
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That the defendant, in undertaking to in-
duce a condition of local anesthesia, used
a quantity of liquid containing a high per-
centage of some caustic and deleterious
chemical or chemicals; and (2) That the
defendant failed to diagnose the condition
of the plaintiff's trouble which developed
after the performance of the surgery for
which he had been employed, and to use
proper remedies for its alleviation and ul-
timate cure. There is no allegation that
the defendant does not possess the requisite
degree of learning, skill and ability neces-
sary to the practice of his profession as a
physician and surgeon; or that he failed
to exert his best judgment in the treatment
and care of plaintiff's case. Plaintiff's
cause of action is bottomed upon the theory
that in using, or attempting to use, Novo-
cain as a local anesthetic the defendant ei-
ther used Novocain containing foreign
caustic and deleterious chemicals, or that
he used some liquid that was not Novocain,
but was caustic and deleterious, and upon
the further theory that after the sore or
infection set in the defendant failed to as-
certain the cause of such condition and to
use proper remedies for its alleviation and
ultimate cure. Except as thus alleged there
is no allegation that the defendant failed
to exercise reasonable and ordinary care
and diligence in the use of his skill and in
the application of his knowledge to plain-
tiff’s case.
The plaintiff relied on his testimony and
the testimony of his wife. There was no
expert testimony. It follows that of neces-
sity the plaintiff relies upon the doctrine
of res ipsa loquitur and contends that the
burning and stinging sensation which was
immediately attendant upon the first in-
jection of the anesthetic and tthe develop-
ment of the condition thereafter is suff-
cient evidence to be submitted to a jury as
tending to show that the liquid injected
contained some caustic chemical and pro-
duced the condition complained of, and
that it further tends to show that the de-
fendant failed to properly diagnose the
trouble and use the proper remedies in
the treatment thereof.
It has been said that there is no such
doctrine; that it is a pious symbol long
used by the priests of the law to exercise
spirits; that it is some of that ancient and
sacred nomenclature, which means nothing
more than a statement that the “obvious is
self evident—the thing itself speaks.”
Whether this comment is justified or not
this Court, in proper cases, applies what
1°SOUTH EASTERN REPORTER, 2d SERIES
is commonly known and referred to as the
doctrine of res ipsa loquitur. We are of
the opinion, however, that it has no appli-
cation here.
The plaintiff testified that the area to be
operated upon became completely dead fol-
lowing the injections. This indicates that
some type of anesthetic was used. Was
the burning and stinging sensation which
followed the first injection due to some
caustic chemical in the liquid, or to some
unusual and unexpected reaction of plain-
tiff’s system to the medicine? Was the
resulting blister and the condition that
thereafter developed due to this caustic
chemical or to some germ or foreign sub-
stance which was transported into the
plaintiff's system by the needle? Was the
condition that followed caused by an in-
fection that set in after the blister burst?
What was the defendant’s diagnosis? What
treatment should have been followed? Did
the specialist make a different diagnosis
and use a different treatment? If the de-
fendant incorrectly diagnosed the cause of
the sore and failed to apply the proper
remedy, was this due to an error of judg-
ment or to negligence? These and other
speculative questions arise upon a consid-
eration of the evidence. In undertaking
to answer them, one guess is as good as
another. And any conclusion, on this rec-
ord, is based upon surmise and conjecture.
The answer is not obvious. There is no
evidence in the record which, when con-
sidered in the light most favorable to the
plaintiff, makes one conclusion more prob-
able than the other.
[2] Practical application of the medical
science is necessarily to a large degree ex-
perimental. Due to the varying conditions
of human systems the result of the use of
any medicine cannot be predicated with
certainty. What is beneficial to many
sometimes proves to be highly injurious
to others. A food or drink that one
allergic person may use with impunity is
highly injurious to another. The golden
rod is a thing of beauty to one asthmatic;
to another it is a thing to be shunned.
Even the expert cannot completely fathom
or understand the reactions of the human
system. Therefore, to say that an unex-
pected, unanticipated and unfavorable re-
sult of a treatment by a physician invokes
the application of the doctrine of res ipsa
loquitur would be to stretch that doctrine
far beyond its real purpose and to destroy
its recognized usefulness in proper cases.
STATE v. BRACY N.CY +891
1 S.E.2d 891
The plaintiff relies on the decision in
Covington v. James, 214 NCe7 1, 194 SE
701. While this doctrine was discussed in
that opinion and the Court announced its
unwiliingness to decide that it is not a mode
or method of proof in malpractice cases,
except where foreign substances have been
introduced into the body during an opera-
tion and left there, the Court expressly re-
frained from applying the doctrine to the
facts in that case. That decision, when
properly interpreted, can bring very little
comfort to the plaintiff.
We concur in the opinion of the Court
below that the plaintiff has failed to offer
any evidence tending to show that he has
suffered any physical injury as.a proximate
result of any careless or negligent conduct
of the defendant.
The judgment of nonsuit is affirmed.
° KEY NUMBER SYSTEM
anme
215 N.C. 248
STATE v. BRACY.
No. 146.
Supreme Court of North Carolina.
March 22, 1939.
1. Homicide @=27, 237
In murder trial, instruction that bur-
den rested with defendant to prove his in-
sanity, mental disease or low order of in-
telligence, set up as defense, to jury’s satis-
faction, that accused's capacity to distin-
guish right from wrong respecting act charg-
ed as crime when committed is test of his
responsibility therefor, and that defendant
was responsible, if he was able to compre-
hend his relations to others, nature of act
and its criminal character, or conscious of
doing wrong, When he committed it, was cor-
rect.
2. Homicide €=294(1)
One whose defense against charge of
first-degree murder is lack of mental capac-
ity to comunit such crime is not entitled to
instructions informing jury of statutory pro-
visions for his detention in state hospital
and procurement of discharge therefrom
only in manner therein provided. Code 1935,
§§ 6237, 6239.
first-degree. murder.
4614.
3. Homicide €=253(1)
Evidence held to support conviction of
Code 1935, §§ 4200,
—_—_~>———
Appeal from- Superior Court, Vance
County; R. Hunt Parker, Judge.
Clarence Bracy, alias David Jiggetts, was
convicted of first-degree murder, and he
appeals.
No error.
The defendant was indicted under a Bill
of Indictment charging him with murder
in the first degree: “On the 31st day of
August, in the year of our Lord, one thou-
sand nine hundred and thirty-eight, with
force and arms, at and in the County afore-
said, unlawfully, wilfully, feloniously, pre-
meditatedly, deliberately and of his malice
aforethought did kill and murder one W.
H. Williamson, against the form of the
statute in such case made and provided
and against the peace and dignity of the
State’? N.C.Code, 1935 (Michic), Sections
4200 and 4614. The verdict of the jury
was “Upon their oath, say that the said
Clarence Bracy, alias David Jiggetts, is
guilty of the felony and murder as charged
in the bill of -indictment, in the first de-
gree.” The Court below rendered judg-
ment on the verdict: “Death by the ad-
ministration of lethal gas.” From the judg-
ment pronounced of murder in the first de-
gree, the defendant appealed to the Su-
preme Court.
The facts were to the effect: The de-
ceased, W. H. Williamson, was curing
tobacco at his barn. He had some small
amount of money ($9.80) in a little tobacco
sack. He went to the barn a little after
10 o’clock on the night of August 31, 1938.
Next morning about 6 o’clock a hand work-
ing on the place, Tobe Henderson, notified
Williamson’s daughter, Lillie Williamson.
She testified, in part:\“We found my fa-
ther lying on the ground; he had been
struck and there was a knot not quite as
large as a hen egg on the right side of his
head. As to the other cuts I do not re-
member. He was unconscious and as to
whether he regained consciousness before
he died I do not know. My brother Ollie,
Charlie Howell, Uncle John Burwell and
Cleve Stegall picked my father up and car-
ried him to the hospital. le was very near
the front of the door but a couple of feet
from the barn on the ground. Ile had
some guano bags folded under his head for
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We Fine Rite hy
216 SOUTHEASTERN REPORTER, Vot. 13. (N.C.
to contradict the recital, unless it ap-
peared “that by reason of some unfair
practice, or through mistake or by sur-
prise, the deed was made to express an
intention different from that which the
burgainer believed it did declare.” This
part of the opinion was unnecessary to
the determination of the case, and is in
conflict with Jones v.Spaight,2 Murph. 89,
where, for the purpose of showing thata
conveyance was intended as an advance-
ment, parol evidence was admitted, with-
out invoking any equitable element, to
prove that » recited consideration of £40
was in fuct never paid, and was only men-
tioned, as alleged in the petition, “as a
formal circumstance in the execution” of
the deed. The principle stated in Wilkin-
son’s Case is based entirely upon the idea
that the recital of the payment of the con-
sideration is a part of the contract, and,
like other written contracts, cannot be
contradicted or varied’ by parol testi-
mony. Such seems to he the general cur-
rent of the decisions in England, where it
is held that the consideration cannot be
recovered in a court of law in the face of
a recital of this nature. This is also gen-
erally understood to be the course of judi-
cial decision in North Carolina. Brocket
v. Foscue, 1 Hawks, 64; Mendenhall v.
Parish, 8 Jones, (N. C.) 105, and the cases
cited. On the other hand, the overwhelm-
ing weight of American authority is in
favor of treating the recital as only prima
facie evidence of payment, as in the case
of a receipt, the only effect of the consid-
eration clause being to estop the grantor
from allegiug that the deed was executed
without consideration in order to prevent
a resulting trust. 1 Greenl. Ev. 37, and
note; 2 Whart. Ev. § 1042, und note; Bige-
low, Estop. 318; 3 Washb. Real Prop. 821.
The English ductrine was very reluctantly
assented to by Lord MANSFIELY, and it is
evennowclaimed by some writers that the
decisions of the courts of that country are
notentirely harmonious in its application.
Without stopping toinquirehow this may
be, it is very manifest from an examina-
tion of our own decisions that the princi-
ple has not always been practically ful-
lowed in North Carolina. If the recital is
contractual in its nature it is plain that it
cannot be gotten rid of but by a correc-
tion of the deed in equity on the grounds
mentioned in Wilkinson’s Case, supra;
and it would seem equally clear that to
obtain such relief there must be allega-
tion and proof that the clause was in-
serted by surprise, fraud, or mistake, etc.
Nevertheless tbis court, in Shaw v. Will-
fams, 100 N. C. 272,68. E. Rep. 196, permit-
ted the recovery of the consideration mon-
ey in the teeth of a recital of its payment,
although there was “no pretense that the
plaintiff was surprised into making the
deed, or wasignorant of what she was do-
ing. It was manifest,” says the court,
“that she executed it with full knowledge
that it passed her estate in the land, and
such was her purpose. The true inquiry
should have been whether it was the in-
tent to exonerate the purchaser from his
obligation to pay the consideration mon-
ey by the introduction of this recital.” It
will be observed that the recital was
pleaded asa release, and, being a part of
‘the deed, necessurily showed the considera-
tion upon which it was made, It will
also be noted that there was no pleading
whatever impeaching the said release,
(there being only the general denial to the
answer implied by. the law,) and yet It
was held that the recital could be contra-
dicted by parol testimony as to the intent
with which it was made. It is very difli-
cult to reconcile the decision with the
principle above stated, and thereare other
cases where, perhaps, in view of the hard-
ship of a rigid enforcement of the rule,a
similardeparturehas been made. It seems
to be conceded everywhere that injustice
must result insome instances froma strict
and logical application of the doctrine;
and it is in the struggle to administer sub-
stantial justice in such cases, and at the
same time adhere to the principle that
such recitals are contractual, that we find
the inconsistencies inthisand other courts
in their rulings upon the subject. In Mi-
chael v. Foil, 100 N. C. 179, 6S. E. Rep. 264,
the deed recited a consideration of $500,
but the court, without any suggestion of
fraud, surprise, or mistake, admitted parul
evidence to vary the recital by showing
that it was agreed at the time of the con-
veyance that tue grantorshould have one-
half of the proceeds of the sale of the min-
eral interest in theland,if such a sale were
made in his life-time. Athough the princi-
ple of Manning v. Jones, Busb. 368, was
applied in this case, the decision can hard-
ly be reconciled with the theury that the
recital of a consideration is contractual,
and the court quoted with approval a de-
cision from the supreme court of Massa-
chusetts, in which state the doctrine is re-
pudiated. The non-contractual character
of such recitals in executed contracts is
distinctly asserted in Harper vy. Harper, 92
N. C. 300, in which the following language
is used: “It was contended on the argu-
ment that the parol evidence introduced
by the appellees was incompetent because
its effect was tuexplain and contradict tbe
deed. This is a misapprehension of the
purpose of the evidence. The deed was
not in question at all, There was no pur-
pose to contradict or change or modify its
terms, orto change its meaning in any
degree. Its office was to convey the title
to theland. The evidence was introduced
in respect to a matter outside of and inde-
pendent ofit. It was intended to show
with what intent the father and bargain-
or madeit, apart from the purpose to con-
vey land to his son. It was put in evi-
dence, not to prove title, but to show a
particular intent on the part of the maker
of it, in another respect distinct from it.”
Again, it was said in Melvin v. Bullard,
82 N. C. 87, that “while a gift in form
raises the presumption of an intent that
the donee of any cunsiderable portion of
the parent’s estate shall account therefor
in a settlement with the heirs and distrib-
utees after his death, while a bargain and
sale does not, it is clear that if at the time
of the conveyance by either mode the par-
ent did not intend it should operate as
an advancement, and this intent appears
from the instrument by which the transfer
is effected, or from the facts of the trans-
action, or is shown by other proof, the
property so conveyed is not an advance-
N. C.) STATE v. BRABHAM. 217
ment, nor its value to be accounted for
afterwards.” In this unsatisfactory state
of the authorities we must determine
whether we shall return to the principle
of some of the older decisions of thiscourt,
and administer it in its original strictness
and simplicity, or whether weshall con-
tinue to act upon the American doctrine,
as unmistakably indicated by our later
eases. If the latter view is to prevail, it
would seem better to distinctly recognize
it at once, and thus avuid the anumaly,
as shown by some of the cases, of denying
ademand upon theground that it canonly
be recovered in a court of equity, and grant-
ing the relief in that court without allega-
tion or finding as to the existence of any
equitable element whatever. While the
writer is doubtful of the policy of depart-
ing from the old rule, the majority of the
court are of the opinion that we are com-
mitted to the American doctrine, which,
in their judgment, is founded upon correct
reasoning, and better adapted to the prop-
er administration of justice. The court
is therefore of the opinion that the recital
in a deed of the receipt of the considera-
tion is not contractual in its character,
and is only prima facieevidence of the pay-
ment of the purchase money, which may
be rebutted by parol testimony. In ac-
cordance with this view we must conclude
that puro] evidence was competent in this
case to show the realintent and purpose
of Mr. Barbee in executing the several con-
veyances to his children, and especially
should this be so when it seems that they
do not pretend that any actual considera-
tion was paid by them.
2. The remaining question to be consid-
ered is whether there was error in the ex-
clusion of the testimony of Mrs. Ladd and
others. The point is thus presented by
his honor in the case prepared for this
court: “The plaintiffs propose toshow by
Mrs.C. A. Ladd, one of the defendants,
thatin the division of certain lands be-
tween his children by Gray Barbee an
agreement was made between them and
Gray Barbee by which some were to pay
others certain sums for equality of parti-
tion. This was objected to by defendants
upon the ground that, H. Tyler Barbee
being dead, and a party to the alleged
agreement, the witness is incompetent
under section 590 of the Code. Other par-
ties to this uction were also offered as
witnesses by the plaintiffs for a similar
purpose, to whose evidence similar objec-
tion was taken by the defendants.” The
court held “that the witness C. A. Ladd
{and theother parties to this action] is in-
competent to testify as to any transac-
tlon between herself and H. Tyler Bariee,
how deceased, in which hisestate issought
to be charged.” We are of the opinion
that the testiinony, in so far as it affected
the lands conveyed to H. Tyler Barhee,
decensed, was incompetent under section
590 of the Code, and that there was no er-
ror in its exclusion. The witnesses were
parties to the action, and, if there was
such an agreement as contended for be-
tween them and their father, it was clear-
ly to their interest that the deceased broth-
er should be included therein, so as to
charge his estate. We have very carefully
examined the cases cited by the plaintiffs’
ERE Se OME ne RE rr eo Sn Sebo E SE SSN Sete E Sn EA ae A EE eS ee ne ee ee
counsel, but can find nothing in them
a couflicts with the ruling of his
onor.
(108 N. C. 793)
STaTEeE v BRABHAM.
(Supreme Court of ey Carolina. May 12,
Homic1pE— Ev1pENCE— CIRCUMSTANCES—INSTRUO-
TIONS.
1. On an indictment for murder, where the
evidence for the state is entirely circumstantial,
evidence is admissible as to the unnatural be-
havior of defendant shortly after the homicide
took place.
2. Where it is shown that deceased was
killed with an iron coupling-pin, and a witness
has testified that he saw a man who looked like
defendant drop the pin near the place of the
homicide, and shortly after its occurrence, evi-
dence is admissible that such a pin was seen near
defendant’s house the day before the homicide,
which shortly disappeared therefrom.
8. Where a witness, B., at the trial identified
a@ coat as having been worn by defendant, an-
other witness is competent to testify that B.
identified the coat at the guard-house after de-
fendant’s arrest, though B. himself was not asked
whether he did so.
4. A statement by the court that defendant
had offered no evidence to contradict the testi-
mony of the state’s witnesses, which is true, is
relieved of any possible prejudicial effect by the
further statement that it is a question forthe jury
whether there is any contradiction between the
state’s witnesses.
Appeal from criminal court, Mecklen-
burg county; Meares, Judge.
McCall & Bailey, for appellant. The At-
torney General, for the State. -
SnepuerD, J. The first exception is ad-
dressed to the udmission of testimony as
to the manner of the prisonersbortly after
the commission of the homicide. The tes-
timony tended to show that the homicide
was committed between 11 and 12 o’clock
on Saturday night, the 11th of April, 1891;
that about 12 o’clock of the same night
the prisoner went to the room of the wit-
nesses Wyche and Davis; that his actions
there were unnatural; that he spoke hur-
riedly, and in a low tone, and that his
hand trembled and he seemed nervous.
Such testimony alone would raise buta
slight conjecture of the prisoner’s guilt,
but, taken in connection with the other
facts in evidence, was very clearly rele-
vant. The evidence offered by the state
was entirely circumstantial in its nature,
and in such cases facts which arein them-
selves of but trifling significance may be-
come of serious import, in view of their re-
lation to other circumstances attending
the transaction. “Everything calculated
to elucidate the transaction ts admissible,
since the conclusion depends upon a num-
ber of links, which alone are weak, but,
taken together, are strong and able to
conclude.” McCann v. State, 18 Smedes &
M. 471. As bearing directly upon the par-
ticular point under consideration, we cite
the case of Campbell v. State, 23 Ala. 69.
See. also, Whart. Crim. Law, 3520.
The second exception is to the testi-
mony of the witness Griffith,“that the
{coupling] pin was found on the sidewalk
near Pemberton’s house, where the pria-
oner boarded.” There was evidence tend-
ing to show that the mortal wound was
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218 SOUTHEASTERN REPORTER, Vot. 18. (N. 6.
inflicted with an iron coupling-pin, which
was found on the floor near the deceased.
The witness stated that this coupling-pin
was like the one seen by bim on Saturday
morning lying in the grass 23 steps from
the buoarding-house of the prisoner, and
that on Sunday he looked for it, and it
had disappeared. One R. J. Johnson tes-
tified that on the night of thellth of April
he came by Mocca’s store, and saw a col-
ored man standing against the window
with his hand behind him, and that he
saw him drop apiece ofiron about the
length of the coupling-pin introduced in
evidence, and that he took it up and
wrapped it in a whitish colored cloth of
some Kind, and put it in his pocket. This
witness also stated that he did not know
that the prisoner was the man hesaw,
but that he had the samecolor and height,
wore a brown overcoat, and “luoked in
appearance like the prisoner.” It was al-
80 in evidence that a handkerchief, soiled
apparently with rust, was found in the
pocket of the prisoner’s overcoat, and
that the pocket of the overcout was “torn
or ripped.” For the reasons given in
passing upon the first exception, we think
that the testimony was admissible, and
should have been submitted to the jury.
State v. Christmas, 101 N. C. 749,88. E,
Rep. 261; State v. Bruce, 106N, C. 792. 11S.
E. Rep. 475. In this connection, we will
state that the sixth exception, as to the
admissibility of the testimony of Johnson,
is plainly untenable, and should also be
Overruled.
The third exception (the only one argued
in the brief of the prisoner’s counsel) is
that the court “allowed [the] witness
Baker to testify that Benny Mocca identi-
fied the coat at the police office [ur guard-
house] without Benny having been first
asked as to the fact, i.e., whether he did
so identify it.” Benny Mocca, the son of
the deceased, had been examined, and tes-
tified that the overcoat produced upon
the trial was the same as that worn by
the prisoner at the shop of his deceased
father on the night of the homicide. This
Overcoat was identified by other witnesses
as the one taken from the valise of the
prisoner, and identified by Benny at the
guard-house in the presence of the witness
Baker and the prisoner. Whatever may
be the ruling in other states upon the sub-
ject, it is well settled in North Carolina
that such testimony as Baker’s is admis-
sible fur the purpose of corroborating a
witness who has been impeached, or
stands in such a relationship to the par-
ties or to the action as to subject his testi-
mony to suspicion or discredit. Jones v.
Jones, 89 N.C. 247; State v. Boon, 82 N.
(. 648; State v. Whitfield, 92 N.C. 831. No
point, however, is made as to whether
the witness Benny Mocca had been im-
peached, but the exception is based entire-
ly upon the failure of the state to ask him,
when on the stand, whether he had, in
effect, made such a statement as to the
identity of the overcoat at the guard-
house. Such preliminary questions are
necessary where it is proposed to discredit
a witness by proof of conflicting state-
ments concerning collateral matter indi-
cating bias, feeling, and the like, (State v.
Morton, 107 N. C. 890, 12'S. E. Rep. 112, and
cases cited;) and this is because the wit.
ness should have an opportunity of ex.
plaining such statements, (State vy,
Wright, 75 N. C. 489;) but this reason hag
no application where the purpose of the
testimony is to sustain the witness, and
we have been unable to find any authority
in support of such a principle. Testimony
of this character was admitted without
peng aggh! inquiry in State v. Dove, 10
red. 469, and State v. Ward, 103 N. C. 419,
8 S. E. Rep. 814; and we do not under-
stand that any practice to the contrary
has generally obtained in this state. We
canuot sce how the testimony is open to
the grave objections urged by counsel,
Benny, on the trial, identified the coat
then exhibited as that worn by the pris-
oner. This was substantive testimony.
Baker simply testified that before the
trial, and at the guard-house, the same
witness had, in effect, made a similar
statement about the same overcoat. This
was only corroborative testimony, and
admitted alone for that purpose, and we
must assume, in the absence of any excep-
tion in this particular, (the entire charge
as to the recapitulation of the evidence
not being set forth,) that as such only it
was submitted to thejury. State v. Pow-
ell, 106 N. C. 687, 11S. E. Rep. 191.
The fourth exception is “because his
honor refused to give the instructions as
prayed for by the prisoner, and without
giving the first, instructed the jury that it
was not denied by the state.” The latter
part of this exception seems to be founded
upon a niisapprehension, as the court not
only stated that the propositions of Jaw
contained in the first instruction were sub-
stantially correct, but actually gave them
in almost the precise language as prayed
for. Upon a careful scrutiny of thecharge,
we are of the opinion that it substantially
responded to all of theinstructions request-
ed by the prisoner. In State v. Parker, Phil.
(N.C.) 475, Pearson, C.J.,said that allthat
the law requires is that the jury shall be
clearly instructed that, unless after duecon-
sideration of all of the evidence they are
“fully satisfied” or “entirely convinced”
or “satisfied beyond a reasonable doubt”
of the guilt of the prisoner, it is their duty
to acquit, and every attempt on the part
of the court to lay down a “formula” for
the instruction of the jury by which to
“gauge” the degrees of conviction has re-
sultedinnogood. State v.Sears, Phil. (N.
C.) 146; State v. Knox, Id. 812; State v.
Gee, 92 N. C. 756. His honor told the jury
that every material circumstance relied
upon by the state must be established be-
yond areasonable doubt, and “that ma-
terial circumstances were those circum-
stances in the case which pointed to the
guilt of the prisoner, and that the mate-
rial circumstances relied on, and which
were established beyond a reasonable
doubt by the state, must be so strong as
to exclude any reasunable hypothesis of
the innocence of the prisoner.” This, sure-
ly, was as favorable to the prisoner asthe
law permits,and we have no hesitation in
overruling the exception.
The fifth exception is also without mer-
it. It was true, as stated by the court,
that the prisoner had offered no evidence
to contradict the testimony of the stute’s
N. C.) STATE ov. AUSTIN. 219
witnesses. This was but the statement of
a fact, and was relieved of any possible
prejudicial effect by its immediate connec-
tion with the remarks that “whether
there was any contradiction between any
of the witnesses in the case is a question
to be determined by the jury; the court
cannot express any opinion upon the tes-
timony.” Neither was there error in stat-
ing that,in the absence of testimony to
the contrary, every witness was presumed
to be of good character. It will be ob-
served that in this connection the jury
were told that, although a witness was of
ood character, they were not bound to
Bolieve him if his statements were unwar-
ranted, etc.
The seventh exception “to the charge as
a whole” is too general to be considered.
State v. Nipper, 95 N. C. 653, and McKin-
non v. Morrison, 104 N. C. 354,10 S. E.
Rep. 513.
The eighth exception: While we doubt
the propriety of the remark of the court
as to what some writers had said about
the reliability of circumstantialtestimony,
we ure sure that the jury could not have
understood that such was the opinion of
bis honor in respect to this case, or that
they were to be influenced by it in the
slightest degree. This veryclearly appeurs
from the inimediately succeeding language,
in which the jury were referred to a former
part of the charge as to the degree of.
proof requisite to a conviction.
The ninth and tenth exceptions are not
sustained by the record, which very plain-
ly fails to disclose that his honor charged
“that, where a witness’ character is not
assailed, he is to be believed.” These ex-
ceptions are also overruled. After a care-
fal exumination of the whole record, we
are of the opinion that the case was fairly
tried, and that there is no reason why the
verdict of the jury should be disturbed.
There is no error.
(108 N. C. 780)
STATE v. AUSTIN et al.
(Supreme Court of hed Carolina. May 12,
1891.
FornicaTION—EVIDENCE—TRIAL.
1. On indictment for fornication and adultery
{t 1s competent for a witness to testify that he
met the male defendant going in the night-time
towards the house of the female defendant; that
defendant told him that he was going to another
lace, to meet a certain person; that defendant
Bid not go there, and afterwards denied having
said that he was going.
2, Evidence : edmissible of the statement
defendant made to his wife in regard to his
whereabouts on that night, as also of the ques-
tion by the wife which called forth this state-
ment.
8. It is not competent, on the issueof defend-
ant’s character, to ask a witness how it was
rumored that a “hung jury” stood on a former
trial of the indictment, the witness having testi-
fied that he did not know how they stood.
4. It is not error to refuse to instruct that
the jury must acquit if they do not believe the
witnesses who testified that they saw defendants
in the act of sexual intercourse, where there is
circumstantial evidence tending toshow immoral
intimacy.
5. Defendants cannot complain of the recep-
tion of the verdict by clerk during the judge’s
absence from the court-room, where they failed
to object at the time to its being so received,
Appeal from criminal court, Mecklen-
burg county: MEARES, Judge.
Burwell & Walker, Covington & Adama,
and J. J. Vann,for appellants. The At-
torney General, for the State.
CLARK, J. The defendants were indict-
ed for fornication and adultery.
Exception 1. One Helms, a witness for
the state, testified that he met the male
defendant one night about 200 yards from
the female defendant's house, going in the
direction of her house, and defendant told
him he was going to Coleman Stewart’s,
to meet Elliott, (an Alliance lecturer ;)
and when this matter was tried before the
Alliance the defendant denied telling him
g0, and denied meeting him. To this de-
fendant objected. There was evidence by
many witnesses of the defendant Austin
making nocturnal visits to the female de-
fendant’s house; of being seen inthe room
alone with her at night; of going into her
room, thelight being put out; and of leav-
ing his horse hitched out at night, and go-
ing with his shoes off to ber house; of
walking upa stream to conceal his tracks;
of being seen embracing her, and the like.
The evidence, therefore, of his being seen
near her house after dark, golng in that
direction, and his saying he was going to
meet an Alliance lecturer, which state-
ment he denied on the Alliance trial, when
it was shown that he did not meet the
Alliance lecturer on that night, and also
his denial of meeting the witness, was com-
petent, as a circumstance tending to cor-
roborate the other evidence of his visits by
night to his co-defendant. “Every cir-
cumstance calculated to throw light on
the alleged crime and aid the jury in com-
ing to a correct conclusion is competent.
State v. Bisbop, 98 N. C. 773,4 S. E. Rep.
357, and cases there cited; State v. Christ-
mas, 101 N. C. 749, 8S. E. Rep. 361.
Exception 2. The same witness stated,
the defendants objecting, that at the Alli-
ance trial (they having been on trial be-
fore the local Alliance for expulsion for
this offense) the defendant Austin’s wife
said thatshe could account for her hus-
band except that night Helms said he had
met bim; that her husband got on his
horse that night, and rode off, saying he
was going to Coleman Stewart’s, and the
defendant Austin had thereupon replied
that he did tell his wife so, but, after rid-
ing 100 yards, he turned and rode back,
unseen by any one, and went into a room,
which was not his bedroom, and which
he was not in the habit of occupying, and
slept till nearly daylight, when he rode off
to Coleman Stewart’s, This evidence was
competent as being a statement made by
the defendant as to his whereabouts and
doings, there being evidence that he did
not get to Coleman Stewart’s till next
morning. What his wife said was com-
petent from having been made in his pres-
ence, and from being replied to by him,
and as having drawn out his statement.
Exception 3. One Winchester, witness
for the defense, testified that the charac-
ter of the defendants was good. On cross-
examination he was asked if he would say
that the character of the defendants was
good at the time, notwithstanding the
though they had opportunity to do so.
Alliance trial and the “hung jury” at the
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| pe 187 SOUTH EASTERN REPORTER (N.C.
STATE v. BAZEMORE. (No. 139.)
(Supreme Court of North Carolina. March 16,
1927.)
1. Criminal law €=>393(3)—Testimony as to
Identification of defendant after he was re-
quired by chief of police to rearrange hat In
manner worn by negro seen by person identi-
fying defendant held competent.
Testimony by chief of police, that defend-
ant prosecuted for murder was identified by a
storekeeper after witness required defendant to
rearrange his hat so as to make it resemble
manner of hat worn by negro seen by store-
keeper in his store, held competent.
2. Homicide @=253(2), 282—Evidence largely |
circumstantial held sufficient to convict of
murder in first degree, and refusal of nonsuit
was not error (C. S. § 4643).
Evidence in prosecution for murder, though
largely circumstantial, was sufficient to carry
case to jury warranting conviction of murder in
first degree, and hence jt was not error to re-
fuse motion for nonsuit under C. S. § 4648.
3. Criminal law €=—992—Verdict not specific-
ally finding prisoner guilty of murder in first
degree will not support death sentence (Cc.
S. §§ 4200, 4642).
Under C. 8. §§ 4200, 4642, verdict which
fails specifically to find prisoner guilty of mur-
der in first degree will not support death sen-
tence.
r
4, Criminal law o=—872—Verdict in capital cas-
es must be taken in open court before presid-
Ing judge, and power to accept verdict cannot
be delegated to clerk (Const. art. 1, § 13).
Under Const. art. 1, § 13, requiring unani-
mous verdict of jury in open court for convic-
tian of crime, verdict in capital cases must be
taken in presence of presiding judge and in
open court, and judge cannot delegate to clerk
power to accept verdict of jury in his absence.
5. Criminal law @=—933—Irregularity in receiv-
ing verdict In murder prosecution in absence
ef judge entitles defendant to new trial
(Const.. art. |, § 17).
Irregularity in receiving verdict in murder
prosecution in absence of judge was in violation
of Const. art. 1, § 17, providing that no person |.
shall be “deprived of life, liberty or property,
but by law of land,” and entitled defendant to
new trial.
Appeal from Superior Court, Greene Coun-
ty; Stack, Judge.
” George Frank Bazemore was convicted of
murder, and he appeals. New trial.
Criminal prosecution tried upon an indict-
ment charging the defendant with a capital
felony, to wit, murder in the first degree.
From an adverse verdict and sentence of
death entered thereon, the defendant appeals,
assigning errors.
|
J. Paul Frizzelle, of Snow Hill, for ap
pellant. ‘
D. G. Brummitt, Atty. Gen., and Frank
Nash, Asst. Atty. Gen., for the State.
STACY, C. J. It appears that on Novem-
ber 5, 1926, Gordon Yelverton, a young white
man, started from his home in Martin county
with a truck load of tobacco to be sold on the
Wilson market. The prisoner, & colored
man, was with him on the truck. Yelverton
was shot in the back of the head and killed
just inside the Greene county line on the
Greenville-Wilson highway, His body was
found in a clump of woods a short distance
from the road. The prisoner proceeded with
the truck of tobacco and sold the same as
his own on the Farmville market. He was
arrested three days later and placed in the
Wilson county jail for safe-keeping. While
there, a number of witnesses went to the
jail to identify the prisoner.
[1] W. P. Daniels, over objection of the
prisoner, testified as follows:
“T am chief of police in Williamston. I was
called on to go to Wilson to identify George
Frank Bazemore. I was accompanied by Sher-
iff Roberson and Mr. J. W. Hardy. I saw the
defendant there. He was among others, I sup-
pose 12 or 15, whose ages ranged from 18 to 35
years. The sheriff called them out. Mr. Hardy
said that when he was coming over to Wilson
he didn’t know whether he could identify the
negro who had come into his store on the
morning of the 5th November with the white
boy who was driving the truck or not, except
that he had on a light hat. Speaking to the de-
fendant, I said, ‘George, 80 get your hat,’ and
he went and brought his hat. .Mr. Hardy then
said, ‘That looks like the negro, but he hasn’t
got the hat fixed the same way.’ Tie was in the
habit of wearing it pushed in all ’round, and
said, ‘George, fix your hat like you usually wear
it,’ and he did it. Then Mr. Hardy said, ‘That's
him, I would swear to him anywhere in the
world.’”
This evidence was competent. State ¥.
Godette, 188 N. C. 503, 125 S. BH. 24; State
v. Graham, 74 N. C. 646, 21 Am. Rep. 493.
J. W. Hardy had previously testified to the
same state of facts.
{2} The prisoner also insists upon his ex
ception directed to the refusal of the court
to grant his motion, duly made under Cc. §.
4643, for judgment as of nonsuit. The evi-
dence, while largely circumstantial, was suf-
ficient to carry the case to the jury and to
warrant a conviction of murder in the first
degree. State v. Melton, 4187 N. C. 481, 122
S. E. 17; State v. Matthews, 66 N. C. 106.
{3] We regret that this opinion cannot be
closed here, for no error seems to have beeD
committed on the trial of the cause prior t?
the rendition of the verdict. An ircegularity,
however, appears on the face of the record
which makes it necessary to remand the casé
G=For other cases see same topic and KEY-NUMBER in all Ke
y-Numbered Digests and Indexes
hla,
PRE
N. C.) STATE v. BAZEMORE tis
(137 S.E.)
for a new trial. In the record as first cer-
tified to this court, it is stated that the jury
“for their verdict return into open court and
say, and each for himself saith, that the de-
fendant, George Frank Bazemore, is guilty
of the felony and murder whereof he stands
charged.” Upon the verdict a sentence of
death was entered. It was said in State v.
Truesdale, 125 N. C. 696, 34 S. E. 646, that
since the Act of 1893, now C. S, 4200 and
4642, dividing murder into two degrees, first
and second, a verdict which fails specifically
to find the prisoner guilty of murder in the
first degree will not support a death sen-
tence, And to like effect is the decision in
State v. Jefferson, 125 N. C. 712, 34 S. E.
618. See, also, State v. Murphy, 157 N. C.
614, 72 S. E. 1075, and State v. Ross, 193
N. C. 25, 186 S. BE. 193. It was specified in
the Act of 1893 that no alteration or mod-
ification of the then existing form of indict-
ment. for murder should be required, but
that “the jury before whom the offender is
tried shall determine in their verdict wheth-
er the crime is murder in the first or second
degree.” ’
Thinking that an error had probably crept
into the record in making up the transcript
on appeal, we directed a certiorari to the clerk,
requiring another certificate of the verdict as
taken and recorded in the superior court of
Greene county. In response, the clerk cer-
ties that the following appears upon the
minutes of the court:
“After hearing the evidence, both for the
state and the defendant, the argument of the
solicitor and counsel for the defendant, and his
honor 8 charge, the jury repaired to their room
for deliberation, and the court takes a recess
until 9:30 o’clock Thursday morning. The
court leaves instruction that, if the jury agree,
the clerk of the court shall take the verdict,
conditioned on the solicitor and the defendant
and his counsel being present in court at the
time. At 8:10 o’clock the jury return into
court, each juror answers to his name when
called aby the clerk, and when asked by the
clerk, Have you all agreed upon your verdict?’
the jury respond: ‘We have.’ The clerk asks:
‘Who shall speak for you?’ The jury answer:
J. M. Albritton,’ Then the clerk addressed the
Prisoner, George Frank Bazemore: ‘Ilold up
a right hand.’ The clerk said to the jury:
A da of the jury, look upon the prisoner.
4 at say you? Is he guilty of the felony and
maces whereof he stands indicted or not
oad They say: ‘Guilty of murder in the
sch egree.” The clerk then said to the jury:
You en to your verdict as the court recordeth.
os Bed ves George Frank Bazemore is guilty
seas “ elony and murder whereof he stands
a i - So say you all.’ The defendant and
the defendant's counsel were present in court.”
Bay sheet tes, in passing, but no point is
Sea of the discrepancy, that when the jury
bea PE At ee to harken to their verdict
ore irt recordeth; the expression ‘guilty
felony and.murder whereof he stands
charged” was substituted for “ouslty of mur-
der in the first degree,” as used by the fore-
man. Speaking to the manner of receiving
verdicts in capital cases, Faircloth, J., de-
livering the opinion of the court in State v.
Young, 77 N. C..498, said:
“When the verdict has been received from the
foreman and entered, it is the duty of the clerk
to cause the jury to harken to their verdict as
the court has it recorded, and to read it to them
and say: ‘So say you all?’ At this time any
juror can retract on the ground of conscien-
tious scruples, mistake, fraud, or otherwise,
and his dissent would then be effectual, This
right is surely one of the best safeguards for
the protection of the accused, and as an inci-
dent to jury trials would seem to be a constitu-
tional right and its exercise is only a mode,
more satisfactory to the prisoner, of ascertain-
ing the fact that it is the verdict of the whole
jury.”
In State v. Bagley, 158 N. C. page 610, 73
S. E. 995, it was held to be the duty of the
presiding judge to look after the form and
substance of a verdict so as to prevent a
doubtful or insufficient finding from passing
into the records of the court. See, also,
State v. McKay, 150 N. C. 813, 63 S. E. 1059,
and State y. Godwin, 138 N. C. 583, 50 S. B.
277.
[4] But the overshadowing objection to
the verdict is that it was not taken in the
presence of the presiding judge at all. It
was received by the clerk in his absence,
presumably with the consent of the prisoner
and his counsel, as no exception was taken at
the time, though this does not definitely ap-
pear. However, without regard to this cir-
cumstance, it is the universal holding that,
in capital cases, the verdict must be taken in
the presence of the presiding judge and in
open court. ‘‘No person shall be convicted
of any crime but by the unanimous verdict
of a jury of good and lawful men in open
court.” Const. art. 1, § 13. His honor, there-
fore, was without authority, in the instant
case, to delegate to the clerk the power to
accept the verdict of the jury in his absence.
State v. Jackson, 21 S. D. 494, 113 N. W. 880,
16 Ann. Cas. 87, and note; Allen v. State,
13 Okl. Cr. 533, 165 P. 745, L. R. A. 19175,
1085, and note; Waller v. State, 40 Ala. 332;
Nomaque v. People, 1 Ill. 145, 12 Am. Dec.
157; McClure vy. State, 77 Ind. 287; State
vy. Jefferson, 66 N. C. 309; 27 R. C. L. 841.
Animadverting on the subject in State v.
Austin, 108 N. C. 780, 13 S. E. 219, Clark, a
said:
“The defendants had the right to have the
verdict rendered in the presence of the judge,
and it is best that it should always be done.
But it is certainly competent, except in capital
cases, for it to be received by the clerk if no
exception is made, and the opportunity is given
the defendant to object, ‘and such practice is
very common.’ Pearson, C. J., in Houston v.
Potts, 65 N. C. 41. Indeed in all cases not cap-
ital the defendant may. even waive his own right
&
aon
; 3
“ @
4
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he)
Ww
i
eet
No
ty
=
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Laser:
Wo ew Repel g
174 137 SOUTH EASTERN REPORTER QW. C.
to be present, either expressly (State v. Epps,
76 N. C. 55) or by voluntarily withdrawing
himself from the jurisdiction of the court
(State v. Kelly, 97 N. C. 404 [2 8. BE. 185, 2
Am. St. Rep. 2991; State v. Jacobs, 107 N. C.
772 [11 S. E. 962, 22 Am. St. Rep. 912)),
though his counsel cannot waive it for him.
State v. Jenkins, 84 N.°C. 812 [87 Am. Rep.
643).”
[6] The prisoner's motion for a new trial
should haye been allowed because of the ir-
regularity in receiving the verdict in the ab-
sence of the judge. ‘This was an inadvertence
on the part of the learned judge who pre-
sided at the trial, but the right is one to
which the prisoner is entitled under the law.
His motion not having been allowed in the
court below, it will be granted here.
But it may be said that no possible harm
has come to the prisoner, and hence the ver-
dict ought to be allowed to stand. The an-
swer to this is: The Constitution provides
that no person shall be “deprived of his life,
liberty, or property, but by the law of the
land.” (Const. art. 1, § 17), and the verdict,
as here rendered, is not sanctioned by the
law as administered in our courts. State v.
Jackson, supra.
New trial.
STATE v. ASWELL et al. (No. 140.)
(Supreme Court of North Carolina. March 23,
r 1927.)
{. Criminal law €=419, 420(10)—Testimony In
trial for adultery, etc., as to reports of im-
propriety of defendants living in same house
and their being frequently seen together, held
Incompetent as mere neighborhood gossip.
In trial for prostitution, adultery, etc., tes-
timony that people in community said it was im-
proper for defendants to live in same house, and
that it was reported that they were frequently
seen together, held incompetent as mere neigh-
borhood rumor and community gossip.
2. Witnesses @=52(7), 58(1)—Wife cannot
testify against husband In triak for prostitu-
tion, adultery, etc.
In trial for prostitution, assignation, for-
nication, and adultery, wife cannot testify
against husband.
3. Adultery 6-15 — Fornication @=>10 — Pros-
titution @—5 — Evidence of prostitution, as-
signation, fornication, and adultery held insuffi-
clent for Jury.
In trial for prostitution, assignation, forni-
cation, and adultery, evidence held.not to war-
rant submission of case to jury.
The defendants were tried upon a warrant
charging them with prostitution, assignation,
fornication, and adultery. ‘The cause was
transferred to the county court of Greene
county, and the defendants were convicted
and appealed to the superior court. Upon
trial in the superior court they were convict-
ed, and the defendant, Joe Smith, sentenced
to work the public roads.
The evidence tended to show that the de-
fendant, Joe Smith, had been a minister for
16 years, serving churches in Wayne and
Greene counties; that he had been married
for over 30 years. The defendant, Mabel As-
well, was a member of the same church of
which the ‘defendant, Smith, was pastor.
The husband of Mrs. Aswell died in 1924, and
the defendant, Smith, and his wife went to
live at the home of Mrs. Aswell, where they
remained about three months during the year
1925, and thereafter moved away.
The evidence further tended to show that
prior to the death of her husband the defend-
ant, Mabel ‘Aswell, had been a respected and
loved woman in her neighborhood.
Dennis G. Brummitt, Atty. Gen., and Frank
Nash, Asst. Atty. Gen., for the State.
BROGDEN, J. [1] Exception No, 1 is to a
portion of the testimony of a witness for the
state as follows:
“Soon after Joe Smith and wife came to live
there, I spoke to him about a report that was
circulated in the community.
“Q. What was the report? A. The people in
the community said that it was improper for Joe
Smith to live in the house with Mrs. Aswell.”
Exception No. 2 was to the testimony of
another state’s witness as follows:
“Soon after the death of Mr. John Aswell re-
ports were circulated in the neighborhood.
“Q. What was this report?. A. It was re-
ported that he’ was frequently seen in company
with Mrs. Aswell.”
The defendants in apt time objected to the
testimony, and it was admitted as evidence
in the case.
The evidence objected to is no more than
mere neighborhood rumor and community
gossip and was incompetent. Hopkins Vv.
Hopkins, 132 N. C. 25, 43 8. BE. 506; State v.
Holly, 155 N. C. 486, 71 S. E. 450; State ¥.
Jeffreys, 192 N. C. 190, 131 S. E. 425.
[2] The third exception relates to testi-
mony of the wife of the defendant, Joe Smith,
who was asked the following question:
“Q. What presents, if any, did Mrs. Aswell
give your husband? A. Just before conferencé
she gave to him a Ford automobile and a suit
Appeal from Superior Court, Greene Coun-} of clothes.
ty; Stack, Judge.
Mabel Aswell and Joe Smith were convicted
of prostitution, assignation, fornication, and
°Q. After you moved back to Wayne county,
did you ever see your husband in company wit
Mrs. Aswell? A. Yes; after we moved back to
‘Wayne county, Mrs, Aswell would often drive
adultery, and they appeal. Reversed.
by our house, which was situated on the Golds-
——
@=For other cases see same topic and KEY-NUMBDR in all Key-Numbered Digests and Indexes
SSAC Be Ream Riba ee
N.C) RAWLS v. LUPTON 175
(137 S.E.)
boro-Snow Hill Highway; she would blow, and
my husband would go out to the car and talk to
her.”
Even if this evidence had any probative
value at all or constituted a link in a chain
of circumstances, it would be inadmissible,
for the reason that the wife cannot testify
against the husband in a case of this sort.
State v. Raby, 121-N. C. 682, 28 S. E. 490;
Grant v. Mitchell, 156 N. C. 15, 71 S. B. 1087,
Ann. Cas. 1912D, 1119; Powell v. Strickland,
163 N. C. 398, 79 S. E. 872, Ann. Cas. 1915B,
709,
(3) The Assistant Attorney General, with
his usual candor, confesses error in the par-
ticulars mentioned. Indeed, there was no
evidence warranting a submission of this case
to the jury, and the motion for nonsuit should
have been allowed.
Reversed.
RAWLS v. LUPTON. (No. 162.)
(Supreme Court of North Caroliha. March 23,
1927.)
{. Appeal and errof ¢=>690(5)—Record must
disclose materiality and competency of re-
jected evidence to make it available on appeal.
The burden of showing error being on ap-
pellant, the record of an assault and battery
ease must disclose the materiality and compe-
tency of evidence the rejection of which is as-
signed as error,
2. Appeal and error €==273(!)—Errors must
be specifically assigned.
Exceptions in terms too general to call at-
tention of court to particular points claimed to
be erroneous cannot be considered on appeal.
3. Appeal and error @==273(5)—Exceptions to
charge failing specifically to call attention to
Particular errors cannot be considered (C, S.
§ 643).
Exceptions to charge not stated specifically
aod in separately numbered articles, as required
by C. S. § 648, cannot be considered on appeal.
4. Appeal and error ¢=-987(2)—Supreme Court
reviews only matters of law or legal inference
(Const. art. 4, § 8).
Under Const. art. 4, § 8, Supreme Court has
Power to review decisions of lower courts “upon
*ny matter of law or legal inference,” but not
facts passed upon by juries,
Appeal from Superior Court, Pamlico
ounty; Sinclair, Judge.
- Action by Z. V. Rawls against E.'S. Lupton.
tom a judgment in favor of plaintiff for
less than the am
: . ount claimed, h
Se.ennee: e appeals.
D. L. Ward, Guion & Guion, and L. I.
|
CLARKSON, J. This is an action for as-
sault and battery, brought by plaintiff
against defendant. The plaintiff alleges that
the assault and battery was willful, wanton,
and malicious, and in his prayer for judg-
ment demands punitive, as well as actual,
damages,
The issues submitted to the jury and their
answers thereto are as follows:
“(1) Did the defendant wrongfully and unlaw-
fully assault and injure the plaintiff, as alleged
in his complaint? Answer: Yes.
“(2) Was said assault willful, wanton, and
malicious, as alleged in the complaint? An-
swer: No.
“(3) What damages, if any, is plaintiff en-
titled to recover from defendant? Answer:
$600, less $140 doctor bili—$460.”
The plaintiff testified as to the occurrence.
in part:
“After he (speaking of defendant) asked me
about the letter, he made the statement similar
to this, if not the exact words. He said, ‘Don’t
you think you have bedeviled me enough in the
last four years?’ I said, ‘Sheriff, the courts
have sustained every matter I have had the last
four years, and I don’t see why you have taken
this attitude.’ I said, ‘But for the fact that 1
agreed to a partial compromise of the money
you owe the county, you would probably be in
the penitentiary to-day.’ He then jumped to-
ward me like an angry bull, giving me a severe
blow, struck the base of my nose between the
eye and nose. I don’t know how long I was un-
conscious, but the next I remember wé?s stand-
ing in the hallway of the register of deeds of-
fice. I was knocked down from the blow.”
Plaintiff’s nose was broken from the se-
verity of the assault and battery. Defendant
contended that he struck him through sud-
den anger on account of sudden provocation.
[1] These are numerous exceptions and as-
signments of error made by plaintiff as to
the refusal of the court below to admit cer-
tain evidence. There is nothing in the rec-
ord to indicate or disclose what the answers
would have been to the question propounded
the witnesses. We cannot assume that they
would have been favorable to plaintiff. The
burden is on the appellant to show error;
therefore the record must set forth and dis-
close the materiality and competency of the
evidence. The record is silent. A long line
of unbroken authorities, civil and criminal,
support the position here taken. Snyder v.
Asheboro, 182 N. C. 708, 110 S. E. 84; State
v. Jestes, 185 N. C. 735, 117 S. E. 385; Lay-
ton v. Godwin, 186 N. C. 312, 119 S. E. 495;
Hosiery Co. v. Express Co., 186 N. C. 556, 120
S. B. 228; Barbee v. Davis, 187 N. C. 78, S5.
121 S. E. 176; State v. Ashburn, 187 N. C.
717, 122 S. E. 833; Smith v. Myers, 188
N. C. 551, 125 S. E. 178; State v. Collins,
189 N. C. 15, 126 S. E. 98; Newbern vy. Hin-
Mery, all of New Bern, for appellant.
ton, 190 N. C. 108, 129 S. E. 181; Hooper y.
F
>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
ered
Fibs iad
RAXTER, Marshal, black, banged Charlotte, N. C., April 29, 1881.,,
‘Hanging “a Colored Paramour.
shall Baxter was hanged at Charlotte,
gape tke murder of “Bob” Hennegan in
January Jast. ‘He claimed to have been insti-
gated by the murdered man’s wife, and on
feesed tho commission of the erime after his
pentence, for which reason no appeal wi
asked or granted. Within the past few wee
mieten
he professed religion, and died in the full
faith of the Methodist Church. The drop was .
five and a half feet: His neck was broken, and
he died almost without a struggle... ~ Beate
It was known among the neighbors that
fllicit relations had existed between Henne-
gan's wife and=-Marshall Baxter and John.
Gray, both colored, and suspicion of the mur-
der attached to the woman. On being inter-
rogated she said that on the night of her
husband’s disappearance Gray came to his
house and said that Marshall Baxter wanted®
Hennegan to go to a frolic and card party that
night at the house of Ned Harris. Hennegan
declined, saying that he was busy shucking
-his corn, whereupon Gray volunteered to re- |
main and do the work. So Hennegan went.
The persons he was invited to meet were Mar-
| Shall Baxter, Coy Ross, and Edward Harris,
and ;these ‘meh with Gray were arrested,
charged. with the murder. Gray.turnec
State’sevidence;-and his testimony showed.
that soon after Hennegan joined the band Bax-
ter wanted to get him'out of the way. On the
night of January 13-he sent Gray to depoy .
Hefnegan to the card party, and waited in
ambash until the victim came along, when he
brained him with a club, after which he ,
dragged the body to the creek. os
GL me fe! /3vd.
Marekatl Gor¥' rf on 3 halres by C4Y%sn
Rolie V40. 1/27/E
chap he (etd Sad hall fut, Wd Aven.
pod braun ¥ he dred urth xd chugs,’
Koloish AO. SWEET.
Oe Ps ae nag ae
oA —s#BENNETT, William ( Yoprade 70 Corbrmed.)
a we a (Need confirmation.)
uw
cus "William B,mnett, who mortally wounded Or, Je H. Echols
ct of by stabbing him with a knife the past summer at Berger's
Go a6 ee \, store, Pittsylvania County, Va., has been found guilty of
\\a\ mr ‘ » first degree murder by the Superior Court and sentenced
of ox 4 to be hung on/Jan. 19, 1838, >The prisoner has taken an
xo d appeal to the General Court." REGISTER, Raleigh, NC,
eer age November. 27, 1837 (3:3
iy
be 3 ya
eet xe.
*
eee iraeenc ge of re
*
es
Sy ESTER
wees
.
‘
88 N.C.
(8] One Reavis, witness for the State,
noticed the two defendants about 5:00 or
5:30 of the afternoon preceding the as-
sault, near the cab station. They were on
a 1940 Ford coach. He saw them again
about 10:30 that night. He noted on his
cab book a description of the automobile
and the number of its license plate. On
the stand he testified concerning the facts
disclosed by this memorandum. Next day
the officers investigating the crime found
the license plate in a stove pipe in the loft
of a barn at defendant Bell’s home. They
made a memorandum thereof. That these
memoranda were competent as tending to
corroborate these witnesses would secm to
be too clear to require discussion. Stans-
bury, N.C. Evidence, Sec. 51, p. 81; State
vy. Scoggins, supra; State v. Bethea, supra.
The defendant Litteral was first appre-
hended. On 30 August he signed a state-
ment in the nature of a confession. This
statement was offered and admitted in evi-
dence as against him only without objec-
tion.
Thereafter, about midnight, 2 September,
oflicers apprehended and arrested Bell at
his home. He made a statement which
was reduced to writing and signed by him.
When this writing was identified by one
of the witnesses and offered in evidence
Bell objected. Thereupon, the court of its
own motion, had the jury retire and of-
fered this defendant an opportunity to chal-
lenge the voluntariness on voir dire. Upon
the close of the voir dire the court over-
ruled the objection, had the jury return,
and adniitted the statement in evidence.
Exception thereto cannot be sustained,
[9] While it is the better practice for
a judge on a voir dire respecting an alleged
confession to make his finding as to the
voluntariness thereof and enter it in the
record, a failure so to do is not fatal,
Voluntariness is the test of admissibility,
and this is for the judge to decide. His
ruling that the evidence was competent of
necessity was bottomed on the conclusion
the confession was voluntary, State v.
Hawkins, supra.
[10] There is nothing in this record
upon which a contrary conclusion could be
based. Confessions, nothing else appear-
43 SOUTH EASTERN REPORTER, 2d SERIES
ing, are presumed to be voluntary. State
yv. Bennctt, 226 N.C. 82, 36 S.E.2d 708;
State vy. Wise, 225 N.C. 746, 36 S.E.2d 230;
State v. Mays, 225 N.C. 486, 35 S.E.2d
494; State v. Grass, 223 N.C. 31, 25° SE:
24 193: State v. Wagstaff, 219 N.C. 15,
12 S.F.2d 657; State v. Hudson, 218 N.C.
219, 10 S.F.2d 730; State v. Murray, 216
N.C. 681, 6 S.F.2d 513. They are not ren-
dered incompetent by reason of the fact the
defendant was at the time under arrest or
in jail or in the presence of armed officers.
State v. Thompson, 224 N.C. 661, 32 S.E.
2d 24: State v. Wagstaff, supra; State v.
Richardson, 216 N.C. 304, 4 S.E.2d 852;
State y. Murray, supra; State v. Smith,
213 N.C. 299, 195 S.E. 819; State v. Exum,
213 N.C. 16, 195 S.E. 7; State v. Caldwell,
212 N.C. 484, 193 S.E. 716; State v. Stefa-
noff, 206 N.C. 443, 174 S.E. 411; State v.
Rodman, 188 N.C. 720, 125 S.E. 486; State
v. Newsome, 195 N.C. 552, 143 S.E. 187.
[11,12] The defendant Litteral tendered
Dr. Kelly, an alicnist and teacher of neuro-
psychiatry, as a witness in his behatf. This
witness testified that the defendant, in his
opinion, is mentally incapable of distin-
guishing right from wrong. He based that
opinion in part on information received
from Littcral during a two-hour conference
with him. The court permitted the solicitor
to cross-examine in respect to statements
made by Litteral for the purpose of testing
the soundness of and impeaching the con-
clusion made by the witness. This evi-
dence was not incompetent by reason of the
physician-patient relationship. G.S. § 8-
53; Smith v. John L. Roper Lumber Co.,
147 N.C. 62, 60 S.E. 717, 125 Am.St.Rep.
535, 15 Ann.Cas. 580; State v. Newsome,
supra; Stansbury, N.C. Evidence, Sec. 63,
p. 110. Furthermore, when the defendant
offered the doctor as a witness he waived
the confidential relationship, if any existed,
and opened the door for cross-examination
concerning all matters about which the
witness had testified. Jones v. Nantahala
Marble & Tale Co., 137 N.C. 237, 49 S.E.
94°
[13] Neither was it incompetent for
the reason it involved former conduct of
the defendant and tended to show a crimi-
nal record. The doctor gave his opinion
STATE vy. LITTERAL
Cite ns 43 S.E2d 84 N.G 89
as to the mental capacity of the defendant.
The solicitor had a right to inquire: into
the basis of that opinion. The cross-exami-
nation was confined to that question. That
it incidentally developed facts concerning
the defendant’s b&d record is a risk he took
when he tendered the witness for examina-
tion-in-chief. Riverview Milling. Co. v.
State Highway Comm, 190 N.C. 692, 130
S.E. 724; State v. Beal, 199 N.C. 278, 298,
154 S.E. 604; State v. Cox, 201 N.C. 357,
160 S.E. 358; State v. Nelson, 200 N.C.
69, 156 S.E. 154; State v. Ray, 212 N.C.
725, 194 S.E. 482; Citizens Bank & Trust
Co. vy. Reid Motor Co., 216 N.C. 432, 5 S.E.
2d 318; Foxman vy. Hanes, 218 N.C. 722,
12 S.E.2d 258; State v. Shepherd, supra.
It is not amiss to note in this connection
that the intelligent manner in which this de-
fendant answered the questions of the wit-
ness and detailed occurrences in his life
from childhood gives reason to understand
why the jury accepted the testimony of the
State’s witnesses as to his sanity rather
than that of the alienist and demonstrates
the justice of the rule which permits the
line of cross-examination conducted by the
solicitor,
There are a number of exceptions to the
charge of the court. We have examined
each one of them with care without regard
to whether they were brought forward
and discussed in the brief. No one of
them points to cause for disturbing the
verdict.
{14] The court correctly charged the
law of the case. It was not required to
give all the contentions. It was under the
duty only to state them as fairly for the
one side as for the other. State v. Colson,
222 N.C. 28, 21 S.E.2d S08; Rocky Mount
43 S.E.2d—6%
Savings & Trust Co. v. Etna Life Ins. Co.,
204 N.C. 282, 167 S.E. 854; Yellow Cab
Co. of Charlotte v. Sanders, 223 N.C. 626
27 S.E.2d 631; State v. Friddle, 223 N.C.
258, 25 S.E.2d 751.
5] Its statement that the jury in ar-
riving at a verdict must be governed by
their recollection of the testimony is in
accord with the authorities. State v. Cam-
eron, 223 N.C. 464, 27 S.E.2d 84; State v.
Harris, 213 N.C. 648, 197 S.E. 142.
{16] The jury came into court to re-
port agreement and returned a verdict as
to defendant Litteral of guilty as charged
in the bill of indictment. As they were
about to return their verdict as to defend-
ant Bell the court interrupted them, in-
formed them that it could not accept the
verdicts tendered and instructed them that
they should spell out the verdicts which
should be: guilty of rape as charged in
the bill of indictment, or, guilty of assault
with intent to commit rape, or, not guilty.
The jury shortly thereafter returned the
verdicts which appear of record. The de-
fendant Bell excepts. The assignment of
error bottomed on this exception is unten-
able. State v. Wilson, 218 N.C. 556, 11
S.E.2d 567; State v. Perry, 225 N.C. 174,
33 S.E.2d 869; State vy. Bishop, 73 N.C.
44; State v. Brown, 204 N.C. 392, 168 S.E.
532; State v. Noland, 204 N.C. 329, 168
S.E. 412; State v. Godwin, 138 N.C. 582,
50 S.E.2d 277.
After a careful examination of all the
exceptions in the record we are persuaded
the defendants were accorded a fair trial,
free of prejudicial error. Hence the judg-
ments must be affirmed as to both defend-
ants,
No error.
SRM i
OF alr
6 oe
UNIVERSITY «
TRA SET
Rea
ET)
YORTH CAROLINA
her Obscure Places.” An
elf became, in effect, the
it“y [him] by such Ways
€quivocating, the law of
spjracy—death. Twelve
on slave executions—a
-d through and through.
ecuted for crimes would
nonstrate that the slave
uld also be said that the
asations. Certainly that
owners that they would
imes committed while
arts” who had already
that year to join other
unishment that had no
9 and 1764, when the
First Offence, be con-
Instead, he would be
: colony the expense of
ning about the proper
xuality. Its removal in
ac to put unruly
ef Lasuation.40
the slaves by the free-
and from burning to
ite penalties may have
‘ four indictments of
ton County in 1769,
| forty lashes and had
‘ify potentially errant
y. In 1770, for exam-
orge of rape, ordered
Kay and Lorin Lee Cary,
npensations for Executed
(06; act of 1741, NCSR,
North Carolina,” 4-5; act
ver Black, 154—S8; act of
ers Suffer Little or Noth-
PUNISHMENT
TABLE 29
SENTENCE BY CRIME, BY COURT, 1663-1776
Assault Theft
Court Corporal Corporal
Monetary Fine Punishment Monetary Fine Punishment
General 30 (96.77%) 1 (3.23%) 4 (16.00%) 21 (84.00%)
Superior 94 (100.00) — — 4 (16.00) 21 (84.00)
County 255 (99.61) 1 (0.39) 2 (11.76) 15 (88.24)
that he “hang by the Neck untill he be dead, and then his head to be
Severed from his Body and Stuck up at the Forks of the Road.” Another
convicted rapist, Ben, was to “be Hanged by the Neck untill he be Dead
that his Head be Severed from his Body ... put upon a pole... and
afterwards his Body be Burn’t.” No instance of such maiming of whites,
alive or dead, appears in the eighteenth-century records. Nor did many
whites receive thirty-nine lashes for assault, as did Rob, a slave, for
attacking Thomas Winter in 1738.41 Comparisons of death penalties
for whites and slaves show a lopsided number of black executions.
Between 1663 and 1776, approximately forty-two free men and women
were sentenced to death without clergy; at least one hundred slave
criminals were executed between 1748 and 1772.42
Even the formal law unreservedly assigned different punishments to
whites and blacks for the same crime—animal stealing. In 1741 a slave
convicted of the first offense would “suffer both his Ears to be Cut off,
and be publickly whipt.” For the second offense, the penalty was death.
Cato was a first offender convicted of hog stealing in 1748. A Craven
County court ordered the sheriff to “take the said Negro Cato to the
Publick whiping Post & there to Nail his Ears to the said Post & them
Cut off.” Forty lashes constituted the second part of his penalty. Sanc-
tions for white offenders, albeit harsh by modern standards, were lim-
ited to fines, whipping, the pillory, or branding on the thumb.43 In every
41. Kay and Cary, “‘The Planters Suffer Little or Nothing,’ ” 292; July, 1769, John-
ston County Court Minutes, 1767~77; Crown vy. George, May, 1770, Secretary of State,
Court Records, Magistrates and Freeholders Courts; Crown vy, Ben, September, 1775,
Treasurer and Comptroller, Miscellaneous Group, 1738-1909; Crown y. Rob, March,
1739, General Court Criminal Papers, 1738-39,
42. See Kay and Cary, “ ‘They are Indeed the Constant Plague,” 49,
43. Act of 1741, NCSR, XXIII, 167; Crown vy. Cato, February, 1748, Miscellaneous
Collections, Slavery Papers, 1747~1850.
Donna J. Spindel
; CRIME AND SOCIETY IN
NORTH CAROLINA, 1663-1776
LOUISIANA STATE UNIVERSITY PRESS
Baton Rouge and London
» white, Luther: - AMen; oat
"Gument Jack Oo. ti ce
Negro, Sam M: Jordan. : a:
fs Baticom, -
‘R. jCadle, | Se
Barney | Biak ee
ay. Luther: V. Hayden mp ee
whit midoer
“Tne: chaplai abl be mere uti it Hudson.
ices: -with< the: yo youle’® 2 5.90. mn, }.
SS ? gene
me he spe ent te; Fenad Routh, iG
moatof the night “in: Mwriting Slate M; Balehelor Robert 3 ae “
‘}reading. the’ Bible and dn “My illiam 1. Upehuren,
: eg oe atateds:,"s th sete te nan <c. M.-
veryy littl Oe: Sit aRNaE Asst slept) Herm a ‘
$ ATTEND: RE! i SVILLE. MEET :
me of the North : drolina farm seeders. wih
: growers’.
ced’ = freely: about: thei
Fosdena | and: nets faith
sy eer thur Gouge; ‘James J. Camps>.
ve [Bets Semen Ov: Se Summie™: ™, Spee
; or: burial. Shee ‘bodies | -
of Elmer: di:Messer were: ‘claimed | “To. TeAG he negro,
eine se Walls. Charles G.:Green: .
| To 1-C,. a en negro, Booner a ry
rat racy, Wi chee — wilson,
, . . op, Wile
Howerton, Robert\L. Gutfey,. Hol - ;
Fon t-Ge dlschar pede’ negro: Paul E-
“White, Jr: Cleophus Summers. -
+
~ Tor2-A, whites Arthur L. Overman,
4 }connected » Oscar: Re Sheppard, ‘William F. Reb- .
« |whilé: being: held in isi t sabore 5 wsianes .H. Johnson, Emmett
£ ytee | ville. They:* were: ne: : *,in | Mi Edwards... * 4
earearge : 3 bi ae cyeee oe Berean "To S-Ay negro; Charlie A. ‘Jonnsen.
eer 20% Scalex i Witnesses: te Execution — ““T¢"2-Bi white, Jolin. White. :
var, Apronimaicy 00% farme pier ia © Sey ‘Theog ‘cater ga ents - Rawares,
faonae Were Sheri ce 5 ait, [2 Te.3-D,-.white, Vance L. Clapp.
' 4 _ To 4a, negro, John: Porter. ee,
ld a he <-Fe. are -Woodrow: ie ‘Cay.
os Proximity Workers
VoteOn Union © -
bof the ‘Tac eee plant ;
‘Manufacturing’
Prow a com-. . *
pany® will: ballot: Thursday, Mareh -
terbeiaire a oth ctleciv
e
Workers Union of ‘America (Cl OF
{inican’ election’ agreed to by’ bath.
Tete om ace feepe eran
4 ihe Tow; ey een erman Cone
“| ford aggen — William: Josep Duns dent, said the sitios Broximity, ‘pres aftect
»| heen, pconvicteds: fe pcr andj only the employees of the Proxim- |
"na . n-f ity: plant, largely engaged at: the
eee ‘on war eee orders.
tApp flicanta M Must Prove”
Need For Gas Ranges *
, SN saree Ce Nek i placem
ie thatch must Tormalite new ie lation: - affecting. ‘agriculture hela enti eee will be: ~
ing. and a greater religious: pro- sim\the current: session of! wired to ‘produce strict proof for
2 in the postwar world to meet| State legislature was’ explained. last need of new stoves, the local war
eae eric for, spinitoal sebepmltedine cores. x tecaee nee price and. rationing board an-
ance for. American’ people and}iP unity m
urned) war. ee helciielot Summesticid grange a Hae nounced Friday.
In).view of the large number
: j former oer i denator -Pang eet Jot applications and the fact. that
eats tis +) re. ee ‘—
: af; Chemica thomas "Me
Pech de frahen Sopra P.; Wilson: William W. Ww,
“on a.recent tour effaleb orng units in the Ft Brigg area’ At |W:
Roberi«
AFights Gener) McNair: questions Joseph K
-. infantryman, Who: had ‘just: Charies . t
General” socks, at. the _Maxton-Lauiriay Pati ‘
Can Shs
eet Marion: H
| oh mi ae - See Ra
Ay a ee ree ier et {Gedrge .M. Ketchie, Jr. ch:
: brought ans” from Repre-!. VY CORR ORPEE Edward D. Soady, Asteho,
¢ sentatly, 8 Of i es anc W. . Winfrey, Jr., Wi:
*-|Burns, | nd r tha Sie suas Sale :
2a recommendations ‘ar 4 ' 1s
~Ainot. inviolable”. and “that: :
, |for “this. Jegislature
_ {thinking for Seay
: Meanwhile
sprimitte
“att Lis Beaman, |
‘Raymond’ S. Ke
+ Leonard W, Long, F/ {
Alan B. MacIntyre, ¥
e eine Edward N. Proctor,’ 4
tection on: i
atlas H. Shoaf, ‘Chi
- Showalter, Rale
ugene é Denton, Jr., Morg
i ee tai ly
weapomy one. bullet: en “be ’
| the-left ‘ear and lodging +
ter of: the: Brain, whilerth
ball entered. the’ b
eft shoulder bla
|
S
= Valle Crucis; b
1
altimere, Md: Robert’
ee Iv Leaksville:* Calein
i Pee ; we ; Er Pee cea Vi &v. e: aivin bs
ts; wiv Ce off The ‘bullets: were ed irom) Li pes Wal Wie
Jemplo ees. heiovtintonrs sas i ki the. se EOTLys er fh erg, Baltimcre. Md.:; R¢
| Ever of ‘the: communi i 2 Sp yite ea Par Rockawt
on of: the OPA:in Nort et
i annual “dinner, '‘m meets e
re in-Blue. Ridgeé*Hotel Thi rs- Pe
ce re
at et
ong. «John
as eerie ~ Reilly, Jr. w
cH *Schell. Th Thomas R. Hart,
tore, jiand: ‘Robents : HH. Pearce, ‘all cof ¥
: rt leigh: Joe Fy. Briggs, _Lexingt
b division \ tierce ;
defor. the siiimaieu,
nducted:: ate 3 pe
town «Methodis h” by
“Ms McKenney. Burial’ wiil| Monday 0 R$
a: pens otek secs. =
ide WOOL SUITS
PLAIN DRES:
‘Cash-and-Ca:
‘Harvey A. Sage,
, i oon e
ugar Grove, Pa.> an our
oat A »Swanson, — Tulsa,
ed: Swanson, Jamestown, N-
; Petey eh id Swengon, Epo eh H Pa,
por tat by: Fie sEdott. Swanson, Mead -
BIG, SLMEY Mey Did, Weitiam Vey and Miooin, vonn reg EASE yg SLOCUE COUUSa ae fe
Carolina State Prison (Guilford County) on 3-9-19),5 —
GREENSBORO DAILY NEWS.
recyor alts = :
youthful - killers, catliae
deaths: in the gas: chamber .
p today for the ho
In, tecent: boar d'action. The
ré'aa follows
ae eJames > A. Ladd,
ght ‘Nathan M.. 2 alec,
antt, ames , Summers, _ Charlie
ha ames J, Herbin, Floyd Ar~
dia *D.* Foust; Daniet
d Roy :T.: Morrow; John .< ¥.
y, Senden’ B. Hills, Samuel M.
hadticted. whites ‘Hersnat Z
Zonal: C C. Destan,. ‘Charles G.
©: Hughes; Edward J.
win Cobame Rewey x. Hut-
“negro; George P.
Moore; Otho Sim Stimpson.
’ To 1-6,” ‘Glacharged. “white, John B.
Pieasantad Julian P. Clark, Richard F.
: George W. Crawtord, Sosik H. .
. Crowell, Russell
. Peebles, Dennis
» Bryant W.
George H
Rig a onile- ny. eet ~Mobert F.
; howe: I'm: go} H Paschal, Willis Ht. Highfill, Jr. Jons
cee ny W, MeGeohee,
A z pe: bc eve Service 2
rr te ‘a. t- arged, negro, Bruce
oe Gee. Te © Relior Wort i se cematiets Charles “Smith, Licva 8.
T know: that 1 am rire 40; be Dillard,” Clarence McColtom, Carl Ww.
a better: world: than this: one,” Glover, William E. Foster. |
Fi
ne:
responded Elmer, whil 2. 1 OB tomy re. -To: 2-A, white, Luther ¥ Aliens
- F 5 t :
nt, - spare thet:
German bases of Pol-] }:
and, Krasnograd; while|
ond force third ta north o.
tid on. et hele op, af
during the general asse
ae" oa ot ; Thursday © Oo) test! his mettle’ on the ‘cargo
‘ited ip let Lt Eaton Guards mcatnaeh eee oe
= S i 8 2) nd-to-hand combat coac
Sat it): easy,’ ur i = (Official U, S. wick photos).
ob peters |
| Harvest Crop
sees on size ca!
ag *
2. C LA Tame iT
: Reet a git
ted that possible. .
have not yet
slentl Ye. =
ot
President was. also
as. favoring: use Oke
harvest vdiaars
; Palmer Plan. 5
4 The: iad sunder considers
Fulmer said, “provides anet: E
quest by “a qualified governe
fatm official for troops in 2"f
short of workers, shal! be ©
w >t by the commandant of the
-9,i Military pos :
A SThewould Qnot interfere
‘way with the’ soldiers
Pies) Nine-Month Schaal” s | Pulmer ‘said, edding: aa)
"The Soldiers usc
Ht Al >On Sécond.Reading a re ft | thels work was finished
Ieee
é ate aS
to what the
ver seen the
1e ground in
d that it had
g gunmen or
he body for
’ and Deputy
a hunt was
and the blue
ery available
‘ssed into the
all the main
autos were
hey were all
they proved
rch was con-
th no success.
ng the roads,
ragnet.
Early the next morning Sheriff Story held a‘ con-
ference with his deputies and decided to call in the
North Carolina Bureau of Investigation on the case.
“If I’m any judge, we’ve got a tough case on our
hands and will need extra work,” he told his men.
cg) AMESTOWN citizens, aroused over the cold-blooded
murder of the friendly, well-liked merchant, who
for years had lived-in their midst, held a meeting and
offered a reward of $100 for information leading to the
capture and conviction of the slayers. The Guilford
County Commissioners took similar action, adding $200
to the amount. This was increased by $200 more by
Governor J. Melville Broughton at the State Capitol in
Raleigh, making a total of $500.
Hundreds of “wanted” flyers bearing descriptions of
the three men and their car were quickly printed and
sent to officers in all nearby states. Late that afternoon
Story and his deputies were joined in their investigation
by H.W. Zimmerman, agent of the State Bureau of
Investigation.
Zimmerman listened closely as Story explained the
\
THE SWANSON STORE——
SHERIFF JOHN C. STORY——.
facts to him. “It’s a safe bet,” the SBI agent declared,
“that the crime was pulled by a local gang, one familiar
with the surroundings. Our best bet to catch them lies
in the dent in the back end of the car. The car should
be spotted easily by that marking. I suggest we con-
centrate our search on the car.”
Following still another line of action, the officers
secured “mug” shots of dozens of small-time thugs and
petty offenders and carried them to Jamestown, where
they. were shown to the eyewitnesses: in hopes that they
might be able to identify the killers. But pictures of
the three wanted youths were not among the photos.
An autopsy, performed by Coroner Harvey, revealed
that the death slugs had been fired from a .25 auto-
matic. The two pellets were removed from the body
and turned over to Story and Zimmerman for future
reference.
“For all we know,” Story told Zimmerman, “the
killers might have decided to hole up in the woods and
hills near here. If that’s the case, then we’ve got a
tough job on our hands in trying to flush them out.
If they’re desperate enough for money—and I believe
they are—they’ll probably try to
pull another holdup when the heat
dies down. The only thing we can
do is wait until they come out in
the open.”
Days went by, and the search
for the blue Ford continued with
no let-up. But no trace of it was
found. The trio had completely
vanished. Would they turn up
again, as Story had’ predicted?
IN Danville, Virginia, just across
the North Carolina line, R. F.
Barber had just unlocked the front
door of his service station the
morning of March 16, 1943, when
a car swung into his driveway.
Two young men slid out and strode
into the station, leaving the.driver
under the steering wheel.
“What’ll it be?” Barber asked.
“A sack of smoking tobacco,” the
shown in the photograph above
is where a horrified wife saw
fatal shooting of her husband
by a gun-crazy young hoodlum.
He is shown (below) standing at
the counter in the identical spot
where Storekeeper Swanson put
up the battle that cost him his life.
taller man drawled.
Barber handed him the tobacco
and turned around to get change
for a quarter. Suddenly he felt
a gun jammed against his back.
“Don’t try any tricks,” one of
the gunmen sneered. “Turn around
and quietly hand over your money.
We mean business!” He empha-
sized his threat by ramming the
barrel of the pistol deeper into the
flesh of Barber’s back.
The proprietor, helpless at the
point of the gun, emptied his cash
drawer, containing over $140, and
handed the money over to the two
men, who stuffed it in their pock-
ets. Warning Barber not to try
to follow them, they backed out
of the door and jumped into the
waiting (Continued on page 66)
37
What little detail had he overlooked?,
District Attorney Thomerson got
up, walked over to him, and reached
in his inside coat pocket and pulled
out the letter Payne had printed out
for Chief McDowell from the leader
of the mythical safecrackers.
“Here’s another letter for you, Mc-
Dowell,” the District Attorney said,
as he handed the letter to the chief.
“Payne didn’t get a chance to mail it.”
Payne tried to talk, but his words
died in his throat.
“Why did you kill your wife?” Dis-
trict Attorney Thomerson shot at
him.
Then the three officers shot other
questions. Why did he walk to work,
and why did he stay out of his car?
He tried to tell them that the doctor.
had ordered him to take exercise.
They countered with questions
about the insurance, about the at-
tempt to kill his wife with the shot-
gun in the closet. Questions about
his finances were hurled at him. His
trips to other cities and his goings-on
there. His dire financial straits were
thrown at him.
He answered the questions as best
he could, and as the hours passed, he
began to get a feeling of confidence.
The letter taken from his pocket was
bad, but that wouldn’t convict him.
The other information was purely
circumstantial and~he could beat it
in court.
He said: “You have had your fun,
bese onde accusing me of the mur-
er of my wife, but you’ll have to get
something far more definite to con-
nect me with the explosion. I'll say
that much!”
“We have it,” Chief McDowell said.
“If you didn’t make that bomb, how
can you explain the possession of this
fuse in your office desk? I found it
there yesterday while you were out of
your office.”
Payne stared at the tell-tale fuse.
He knew there was no answer for it.
His head started to whirl again. He
tried to F a possession of his wits, but
he couldn’t. The three officers were
meine _qrostions at him so fast he
couldn’t hear them.
He knew he was trapped. He set-
tled, back in his chair and said: ‘All
right, gentlemen, I killed my wife and
I'll make a statement.”
E dictated a 20,000-word confes-
sion, going into every detail of his
mental processes during the planning
of the murder and the days after it.
It gave him great pride to make that
confession, and he boasted that the
murder of his wife was “the world’s
most cunning and fiendish crime.”
Not once during his confession did
he show any sentiment. He wrote:
“T killed Exa for one reason only. I
needed money and I thought that was
the surest way of getting it.”
They put him in a cell and charged
him with murder. On August 30,
1930, Payne shouted from his cell,
“Stand back, everybody.”
A moment later an explosion that
shook the jail rent the air, and when
the smoke cleared away, and uncon-
scious men in cells all over the jail
were being revived, the officers
walked into Payne’s cell.
All they saw was an indescribable
mess of gore. Payne had blown him-
self into eternity with a charge of
nitro-glycerin nobody knew he pos-
‘sessed.
Hé left but one request, and that
was to his children. He asked that
they etch on the Payne family tomb-
stone:
“Mother and Daddy. Together
they labored and here lie their
torn clothes,”
car. The driver gunned the motor and
the vehicle shot away toward the
heart of town. Barber grabbed his
pistol from beneath the counter and
ran to the driveway. He fired three
shots at the fleeing car, but they
missed their mark.
Hurrying to the nearest phone, he
notified Capt. W. H. Jones, Chief of
Detectives of the Danville Police De-
partment, of what had happened.
Within a few minutes Jones was
at the scene taking down notes.
“What did they look like?” he
asked.
Barber scratched his chin as he
tried to form a complete picture of
the bandits.
“One of them wore a dark cap and
a brown leather jacket,” he said. “He
was tall and rangy, sort of pale-faced.
The other one was pimply-faced, had
black hair and wore a white shirt
and dark coat. He was slightly
heavier.”
“What type of car were they in?”
“A 1937 Ford sedan; blue color.
Funny thing about the car; it had a
big dent in the back end. The license
plate was from North Carolina.”
Recalling the “wanted” flyer he had
received in the mail a few weeks
previous from Sheriff Story in
Greensboro, Jones suddenly snapped
his fingers.
“Say! I’ll bet this is the same bunch
that shot and killed a merchant down
at Jamestown, North Carolina, last
month. Your descriptions of the men
and the car are identical. And that’s
more than a mere coincidence.”
Jones lost no time reaching head-
quarters, where he put through a
— call to Sheriff Story in Greens-
oro.
“T believe they’re the same ones
CAROLINA KILLERS
Continued from page 37
who shot Swanson,” Story said, his
hopes bolstered by this news. ‘“There’s
a chance they may be headed back
to North Carolina. Suppose you see
if you can pick up their trail any-
where along the line and follow them.
Meanwhile I’ll call the Reidsville po-
lice and ask them to be on the look-
out for any sign of them.”
Cradling the receiver, Jones hopped
into his car and headed out Highway
No. 29 toward the North Carolina line.
Inquiries along the road netted him
the information that a blue Ford
sedan had been seen a few minutes
earlier racing at top speed toward
North Carolina.
Jones, his eyes alert for any sign
of the holdup trio, crossed the state
line and continued on to the small
village of Pelham. He carefully
checked the back end of all the cars
he passed.
When he reached Reidsville, he con-
tacted Police Chief R. A. Allen, who
already had put his force of police
on the alert for the fleeing machine.
“T have a hunch that the men may
be somewhere in this area,” Jones
told Allen. “It wouldn’t hurt to
cruise about the city and ge all the
poston cars a once over. ey might
ave decided to abandon the car on
some side street.”
Allen nodded his assent.
OR over half an hour the two of-
.ficers toured the city streets,
carefully scrutinizing every car they
saw. They were about to return to
headquarters and give it up as a lost
cause when a car swung around in
front of them.
Jones ny sat upright in the
seat and nud Allen. “Do you see
what I see?” he asked.
“Yeah,” Allen whispered. “It’s the
same car, sure as shooting! There’s a
dent in the back; and it’s the same
make and color. Step on it!” .
Jones jammed his foot to the floor-
board and headed the car around in
front. of the blue Ford sedan. He
forced the vehicle to pull over to the
curb. The officers scrambled out and
raced to the Ford car. The only occu-
pant was the driver. His eyes wink-
we wild fright, the driver slid out.
he officers quickly frisked him, but
found no weapon. “Where’s your two
pals?” Allen asked coldly.
“I don’t know what you’re talking
about,” the driver answered, feigning
surprise. “What in the world is this
all about?”
“You'll find out when you get to the
police station. You’ve got a lot of
a todo.”
aken to Allen’s office, the dark-
haired youth was questioned at length,
but denied that he had anything to do
with the robbery of the ber serv-
ice station or the shooting of Swan-
son.
“You're lying,” Allen said. “You
were one of the gunmen in both
crimes. Your description tells us that
much. You might as well come clean.”
But the arrogant youth merely pursed
his lips together and remained silent.
Notified of the suspect’s arrest,
Story and Zimmerman arrived in
Reidsville early the next morning.
After spending the night in the lock-
up, the close-mouthed suspect pro-
fessed a willingness to talk. He ad-
mitted’ that his name was William
Dalton Biggs, 20, and that he was im-
plicated in the we of the Barber
place. But he denied having anythin
to do with the attempted holdup an
murder of E. J. Swanson.
His ac
brother,
John Ed;
“Wher:
manded.
“In W
visit my
at one of
Story
with met
ton, D. ¢
pick up t
them wit
address «
Late
awaited
in. The
young B
Biggs ha
outh pic}
formatior
neighbor:
Apparent
Virginia.
“That
probably
Carolina,
that ever
come thr:
little sury
when the
The off
they sec
bushes n
and hour:
sign of th
of the m
clear vie:
It was.
morning
ficers he:
the distar
HEN
4 spo
stationed,
Plymouth
person in
who appe
On the bz
vas cover
Quietly.
car and
motioning
the shoulc
slid out
cautiously
were taki:
The dri:
and wante
stopped.
“We're
around to
SBI agent
and flung
were’ two
of whom
leather j;
wildly.
“Come
Zimmerm:
Slowly 1
out, shakir
from thei:
of their p:
matic and
Rushed
partment,
were Elm
Biggs’ fat!
the truck
36
in his back,” he announced. “Kither one probably would
have been fatal. I can tell you what caliber the bullets
are after I’ve conducted an autopsy.”
Meanwhile, Story was trying to piece together a
picture of what had happened. Turning to Bundy,
who appeared to be the calmest one of the group, he
asked: “Did you recognize the men?”
Bundy shook his head. “I’ve never seen them before,”
he answered.
He described the slender gunman, the one who fired
the shots, as being about 20 years of age, weighing
around 140 pounds, wearing a dark cap and brown
leather jacket and having light-blue eyes and a pale
complexion. The other man was pictured as being
slightly larger, pimply-faced, bareheaded, and wore a
blue coat, and white shirt without a tie. He had black
hair, Bundy said. ’
“What about the car? Did you get a look at it?”
“I did,” one of the Ray sisters spoke up. “I’m sure
it was a 1937 Ford sedan. And it was blue. I saw that
it had a big dent in the back end, as if it had been
backed into something. There were three young men
in it.”
Story made a mental note of this
fact. The two girls, who lived just
across the highway from the Swan-
son store, said they had paid par-
ticular attention to the car when
they crossed the street. The first
thing they knew about the shoot-
ing, they said, was when they
heard pistol shots as they started
to go up on the porch of the store.
In the light of the full moon,
the girls said, they got a good look
at the driver of the car, who
turned around and looked squarely
at them as they headed toward
the store. The driver was de-
scribed as being about the same
age as his two accomplices, and
also wore a dark coat and a white
shirt that was open at the collar.
Realizing that every minute he
wasted enabled the gunmen to put
more distance between them and
the scene of their crime, Story
dispatched Deputies Nance and
Jones to Greensboro to notify of-
ficers in all surrounding towns to
be on the lookout for the blue
Ford containing the gun-wielding
youths.
“Block every main road leading
out of the county,” he ordered.
“They can’t be very far away.”
To Deputy Donovant, he added:
“It seems odd to me that the men
didn’t make an effort to get the
money out of the cash register.”
“They might have lost their
nerve at the last second,” Dono-
vant suggested. “Amateur punks
do that sometimes. If you ask me,
I think it’s the work of some trig-
ger-crazy youths. When Swanson
made a play for his gun, it prob-
ably made the slender guy so mad
that he went off his nut 4nd shot
Swanson.”
The dead man’s widow could add little to what the
officers. had already learned. She had never seen the
hoodlums before.
Story walked outside and examined the ground in
front of the store. The ground was so hard that it had
failed to hold an impression of the fleeing gunmen or
the car.
Leaving Coroner Harvey to prepare the body for
removal to a morgue in Greensboro, Story and Deputy
Donovant returned to Greensboro, where a hunt was
already in progress for the three youths and the blue
Ford with the dent in the back end. Every available
county officer and patrolman had been pressed into the
search. Blockades were thrown up on all the main
highways. Numerous suspicious-looking autos were
halted and the occupants questioned, but they were all
allowed to continue on their way when they proved
their true identity.
Throughout the rest of the night the search was con-
tinued in full force, but the officers met with no success.
Despite all the precautions taken in blocking the roads,
the holdup trio had slipped through the dragnet.
picked up
m driving a
ie back of it.
y: “What can
men said.
cigarettes and
r half a dollar
‘em up! No
a shiny auto-
le-faced young
other gunman
s. Swanson and
1 and be quiet.
easily, despite
which he kept
nake a try for
g for
JOHN H. MESSER——
North Carolina State Bureau of Investigation
agents lifted a canvas cover from the ‘floor of
a harmless-looking truck—and there he was!
the pistol, and he ducked behind the counter. As he
did so, the slender gunman cursed violently and reached
over behind the counter. Orange flame spurted from
the weapon as two bullets went crashing into Swan-
son’s body.
Then the gunman turned around to his partner and
stared at him for a second, his lips quivering. His
buddy whispered: “Come on! Let’s scram out of here!”
The two men, without making an effort to loot the
cash drawer, turned and fled to the front entrance,
where they almost knocked down two sisters, Mildred
and Doris Ray, who were entering the store.
‘Regaining their balance, the gunmen scrambled to
the waiting car, jumped in and sped off into the night in
the direction of High Point.
‘ELMER H. BIGGS——
He admitted that he was in the stickup car but
said he had no actual part in the attempted
robbery of merchant shot down by a “heist guy.”
Dropping her knitting, Mrs. Swanson rushed to the
side of her 57-year-old husband. But she was too late.
The bullets had already taken his life.
Leaving the Ray sisters to comfort the distraught
widow, Bundy ran to the nearest phone and put through
an emergency call to Sheriff John C. Story in Greens-
boro, the seat of Guilford County.
INUTES later the scene was swarming with officers.
With Story from Greensboro, came Deputy J. W.
Donovant and Coroner W. W. Harvey. From High Point
came Deputies Ray Nance, John Jones and several
others.
. Coroner Harvey’s examination was brief, quick. “One
of the bullets entered his left jaw and the other went
“easy money.” Instead they found a hard death!
No appeal
BLACK, Will, black, b&ecfrocuted at North Carolina State Prison (Greene) 7-21-1916
"Raleigh, Ne Ce, June 27, 1916-Accompanied by two companies of militia, Will Black,
a 16-year-old negro boy, was taken to Snow Hill, in Greene County, today on a spe-
cial train for trial on a charge of having criminally assaulted a six-year-old white
vhild near that place on March 30. Joseph Black, the boy's father, on April 5 was
removed from the Lenoir County Jail, in Kinston, taken to Greene County and
lynched, He was under arrest on a charge of having assisted his son in an attempt
to escape and for having supplied him with arms, Two members of a sheriff's posse
and Will Black were shot in a running fight before the MW fugitive was captured,"
JOURNAL, Atlanta, Georgia, June 27, XXXX 1916 (6/6&7.)
202° N.O.
state’s case, exception noted, if overruled, and
the motion renewed at the close of all the evi-
dence, exception again noted, if overruled;
and, in preparing the statement of case on
appeai, an assignment of error should have
been made based upon this second exception.
State v. Lawrence, 196 N. C. 562, 146 S. E.
395; State v. Sigmon, 190 N. ©. 687, 130 8. E.
854; State v. Killian, 173 N. C. 792, 92 S. E.
499; Nowell v. Basnight, 185 N, C, 142, 116 8S.
Ek. 87; Batson v. City Laundry Co., 202 N. C.
560, 163 N. FE, G00; Nash v. Royster, 189 N. C.
409, 127 S. E. 356. But no such exception and
assigument of error appear on the record. In
lieu of this, the defendant might have moved
for a directed verdict on the capital charge,
noted an exception, if overruled, and predi-
cated an assignment of error upon this excep-
tion. But the record contains no such ex-
ception and assignment of error. The ques-
tion therefore is not properly presented,
An attentive reading of the opinion in
Rawls v. Lupton, supra, ought to acquaint ap-
pellants with the mechanics of taking excep-
tions, bringing them forward in the assign-
ments of error, and preserving them by dis-
cussing them on brief, as required by rules 19
(5), 21, and 28 of the Rules of Practice in the
Supreme Court, 200 N. C. 824-827-831. See,
also, State v. Lea, 203 N. C. 18, 164 S. E. 737;
Carter v. Bryant, 199 N. C. 704, 155 S. E. 602,
und Riggan v. Harrison, 203 N. C, 191, 165 S.
I. 358.
[8,9] But, treating the assignments of er-
ror as supported by exceptions, they appear
to be without merit. The court in charging
the jury, and while stating the contentions
of the state, said: “* * * That then his
flight from the scene and his flight as far as
Pennsylyania was a circumstance indicating,
in recognition of the fact of his own guilt.”
This is assigned as error.
There are two reasons why the assignment
cannot be sustained. In the first place, excep-
tions to the statement of contentions, not
called to the attention of the judge at the
time, so as to give him an opportunity to cor-
rect them, if erroneous, are treated as waived
or ineffectual on appeal. State v. Lea, 203
N. C, 13, 164 S. E. 737; State v. Sloan, 199 N.
C. 598, 155 S. E. 258; State vy. Steele, 190 N.
C. 506, 130 S. E. 308; State v. Parker, 198
N. C. 629, 152 S. E. 890; Danville Lumber &
Mfg. Co, v. Building Co., 177 N. C. 103, 97 S.
E. 718; State v. Little, 174 N. C. 800, 94 S. E.
175 SOUTH EASTERN REPORTER
1; State v. Foster, 172 N. C. 960, 90 S. E. 785.
In the next place, the contention itself was
legitimate. State v. Beal, 199 N. C. 278, 154
S. E. 604; State v. Mull, 196 N. C. 351, 145
S. E. 677; State v. Lawrence, 196 N. C. 562,
146 S. E. 395; State v. Stewart, 189 N. C. 340,
at page 347, 127 S. E. 260; State v. Malonee,
154 N. C. 200, 69 S. E. 786. The court was
not undertaking to state the law of flight in
giving the state’s contention, State v. Mull,
supra; State v. Steele, supra.
[19] It is not perceived upon what theory
error was committed in refusing to set aside
the verdict or to arrest the judgment. A
judgment in a criminal prosecution may be
arrested, on motion duly made, when, and
only when, some fatal error or defect appears
on the face of the record. State v. McKnight,
196 N. C. 259, 145 S. E. 281. The trial seems
to have been conducted in strict conformity
to the law, and with due regard for the rights
of the defendant.
[11,12] The intentional killing with a dead-
ly weapon, admitted by the defendant, raised
sufficient presumptions to establish an unlaw-
ful killing with malice, which is murder in the
second degree, State v. Keaton (N. C.) 175 8.
E. 296, this day decided, and the record con-
tains ample evidence to support the finding of
the additional elements of premeditation and
deliberation necessary to constitute murder in
the first degree. State v. Evans, 198 N. C.
82, 150 S. E. 678; State v. Miller, 197 N. C.
445, 149 S. E. 590; State v. Steele, 190 N. C.
506, 1380 S. E. 308; State v. Merrick, 172 N.
C. 870, 90 S. BE. 257; State v. Cameron, 16%
N. C, 379, 81.8. E. 748; State v. McClure, 166
N. C. 321, 81 S. E. 458; State v. Daniels, 164
N. C. 464, 79 S. FE. 953; State v. Exum, 1388
N. C. 599, 50 S, E. 283; State v. Thomas, 118
N. C. 1113, 24 S. E. 431; State v. Norwood,
115 N. C. 789, 20 S. E. 712, 44 Am. St. Rep.
498.
The defendant’s plea of self-defense was re-
jected by the jury. State v. Glenn, 198 N. C.
79, 150 S. E. 663. It is observed that his wife
and children were not called as witnesses in
his behalf. It is not known whether they
would have corroborated his testimony. This
was a matter for his counsel to decide.
There is nothing appearing on the record
which would warrant the court in disturbing
the verdict or the judgment. They will there-
fore be upheld,
No error,
LAMBERT y.
CARONNA N.C. 303
175 8.E.
LAMBERT v. CARONNA.
No. 508.
Supreme Court of North Carolina,
June 20, 193-4.
1. Appeal and error G=1050(1)
Exception to incompetent evidence is
generally waived, if similar evidence is ad-
mitted without objection.
2. Trial G75
Testimony of army sergeant suing for
personal injuries, explanatory of unobject-
ed evidence that he had to undergo physical
examination before he could re-enlist, held
properly admitted, where evidence objected
to was not materially different from that
unobjected to.
3. Automobiles €=243(1)
Evidence, in action for injuries in auto-
mobile collision, given by witness knowing
road relative to skid marks thereon, and
whether all or part of automobile crashed
into was on hard surface, held competent.
4. Autamobiles €=246(55)
Failure to charge on statute providing
that statute prohibiting parking of vehicle
upon traveled portion of highway shall not
apply to driver of vehicle which is disabled
held not error, where defendant’s entire evi-
dence was that he had a flat tire (Code 1931,
§ 2621 (66), subds. (a, ¢).
5. Automobiles €=245(17, 83)
Whether defendant parked automobile
on highway at night without leaving tail-
light burning so as to render him negligent
in automobile collision, and whether plain-
tif€ motorist colliding with defendant's park-
ed automobile was contributorily negligent,
held for jury (Code 1931, §§ 2621 (89), subd.
(a), 2621 (94).
6. Appeal and error €=273(5)
‘rrors must be specifically assigned, and
“broadside” exception to charge on damages
will not be considered.
7. New trial C145
Affidavit in regard to what was over-
heard as to what juror said in jury room
discussing case held incompetent to impeach
verdict.
a
Appeal from Superior Court, Cumberland
County; Sinclair, Judge.
Action by William S, Lambert against
Charles Caronna. Judgment for plaintiff,
“and defendant appeals.
No error.
This is an action brought by plaintiff
against defendant for actionable negligence
alleging damage. The defendant denied neg-
ligence and set up a counterclaim for action-
able negligence against plaintiff alleging dam-
age.
The issues submitted to the jury and their
answers thereto were as follows:
“(1) Was the plaintiff injured through the
negligence of defendant, as alleged in the
complaint? <A. Yes.
“(2) Did plaintiff by his own negligence
contribute to his injury, as alleged in the an-
swer? A. No.
“(3) What amount, if any, is plaintiff enti-
tled to recover of the defendant? A.
$5,000.00.
“(4) Was defendant injured through the
negligence of the plaintiff, as alleged in the
answer? A. No.
“(5) Did defendant, by his own negligence,
contribute to his own injury, as alleged in
the reply? A. Yes.
“(6) What amount, if any, is defendant en-
titled to recover of the plaintiff? A.
The defendant made numerous exceptions
and assignments of error and appealed to the
Supreme Court. The material ones and nec-
essary facts will be set forth in the opinion.
Downing & Downing, of Fayetteville, and
W. E. Kindley, Jr., of Baltimore, Md., for ap-
pellant.
Dye & Clark, of Fayetteville, for appellee.
CLARKSON, Justice.
The evidence on the part of plaintiff was
to the effect that he was a sergeant in the
United States Army and had been in the
Army for over a quarter of a century. At the
time of the injury complained of, he was 59
years of age. On March 31, 1933, he was on
his way from Fayetteville to Fort Bragg be-
tween 10 and 11 o’clock at night, driving, at
a moderate rate of speed, a Chrysler car, 1930
model. There was quite a bit of traffic, as it
was pay day. He had to tip his lights fre-
quently to keep from blinding people. Close
to the noncommissioned club, he had just
met a car and was going down a straight in-
cline of the road, had to tip his lights down,
and on that account was very careful. He
was on the right-hand side of the concrete
highway (18 feet wide), the rear end of a
ear loomed up right in front of him, it ap-
peared to be stopped, he was close to it, tak-
ing his foot off the accelerator, he tried to
throw the car over, but he did not have
€=For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes
se
298 %N.C.
er offense charged in the bill of indictment,
for, in such event, it cannot be known whether
the jury would have convicted of a less de-
gree of the same crime if the different views,
arising on the evidence, had been correctly
presented in the court’s charge. State v. Lee,
206 N. C. 472, 174 S. E. 288; State v. New-
some, 195 N. C. 552, 143 S. E. 187; State v.
Lutterloh, 188 N. C. 412, 124 8. FE. 7o2; State
y. Robinson, 188 N. C. 784, 125 S. BE. 617;
State v. Williams, 185 N. C. 685, 116 S. E.
736.
[1] But the facts of the instant case do not
call for the application of this rule, so far
as the issue of manslaughter is concerned,
as the record is barren of any evidence of
manslaughter. State v. Myers, 202 N. ©. 351,
162 S. E. 764; State v. Sterling, 200 N. ©.
18, 156 S. E. 96; State v. Newsome, supra;
State v. Spivey, 151 N. C. 676, 65 S. E. 995.
The homicide was intentional, and it was
committed with a deadly weapon under cir-
cumstances which suggest no cause, excuse,
or justification. This is, at least, murder
in the second degree. State v. Bailey, 205
N. C. 255, 171 S. E. 81; State v. Robinson,
supra.
[2] There are three degrees of an unlawful
homicide: (1) Murder in the first degree,
which is the unlawful killing of a human be-
ing with malice and with premeditation and
deliberation; (2) murder in the second degree,
which is the unlawful killing of a human be-
ing with malice, but without premeditation
and deliberation; and (38) manslaughter,
which is the unlawful killing of a human be-
ing without malice and without premedita-
tion and deliberation. State v. Benson, 183
N.C. 795, 111 S. E. 869.
[3] The presence in the one case of pre-
meditation and deliberation, and the absence
in the other of one or both of these ele-
ments is the distinguishing difference between
murder in the first degree and murder in
the second degree. State v. Miller, 197 N. C.
445, 149 S. E. 590. The presence in the one
case and the absence in the other of the ele-
ment of malice is the distinguishing difference
between murder in the second degree and
manslaughter. State vy. Robinson, supra.
[4] An unlawful killing is manslaughter.
An unlawful killing with malice is murder in
the second degree. An unlawful killing with
malice and with premeditation and delibera-
tion is murder in the first degree. State v.
Banks, 143 N. C. 652, 57 S. E. 174.
{5,6] Where it is admitted or established
by the evidence, as it is here, that the de-
175 SOUTH EASTERN REPORTER
fendant intentionally killed the deceased with
a deadly weapon, the law raises two—and
only two—presumptions against him: First,
that the killing was unlawful; second, that
it was done with malice; and an unlawful
killing with malice is murder in the second
degree. State v. Bailey, supra; State v. Mil-
ler, supra; State v. Walker, 193 N. C. 489,
137 S. FE. 429; State v. Fowler, 151 N. C. 731,
66 S. BE. 567. The additional elements of
premeditation and deliberation, necessary to
constitute the capital offense, are not pre-
sumed from a killing with a deadly weapon.
These must be established beyond a reason-
able doubt, and found by the jury, before a
verdict of murder in the first degree can be
rendered against the defendant. State v.
Thomas, 118 N. C. 1113, 24 S. E. 431. It is
provided by C. S. § 4200, that a murder which
shall be perpetrated by means of poison, lying
in wait, imprisonment, starving, torture, or
by any other kind of willful, deliberate, and
premeditated killing, or which shall be com-
mitted in the perpetration or attempt to per-
petrate any arson, rape, robbery, burglary,
or other felony, shall be deemed to be mur-
der in the first degree, punishable by death,
and all other kinds of murder shall be deem-
ed murder in the second degree, punishable by
imprisonment in the state’s prison. State v.
Banks, 143 N. ©. 652, 57 S. E. 174; State v.
Newsome, supra.
{7] If a defendant who has intentionally
killed another with a deadly weapon would
rebut the presumption arising from such
showing or admission, he must establish to
the satisfaction of the jury (State v. Willis,
63 N. C. 26) the legal provocation which will
take from the crime the element of malice and
thus reduce it to manslaughter, or which will
excuse it altogether on the ground of self-
defense, unavoidable accident, or misadven-
ture. State v. Gregory, 203 N. C. 528, 166
S. E. 387; State v. Eldridge, 197 N. C. 626,
150 S. EB. 125; State v. Pasour, 183 N. C. 793,
111 S. E. 779; State v. Brinkley, 183 N. C.
720, 110 S. E. 783.
[8] In State v. Quick, 150 N. C. 820, 64
S. E. 168, 170, it was said that, when an in-
tentional killing is admitted or established,
the law presumes malice from the use of a
deadly weapon, and the defendant is guilty
of murder in the second degree, unless he
can satisfy the jury of the truth of facts
which justify his act or mitigate it to man-
slaughter. “The burden is on the defend-
ant to establish such facts to the satisfac-
tion of the jury, unless they arise out of the
evidence against him.” State v. Banks, 204
;
STATE v. BITTINGS
115 8.E.
N. C. 233, 167 S. E. 851; State v. Cox, 153
N. ©. 638, 69 S. E. 419.
[9] In the instant Case, there is no evidence
of mitigation or provocation sufficient to re
duce the offense to manslaughter. State v.
Robinson, supra. Hence it was proper to
withhold this issue from the jury’s consider-
ation. State v. Ferrell, 205 N. C. 640, 172
S. E. 186; State v. Jackson, 199 N. C. 321,
154 S. E. 402.
The remaining exceptions have been care-
fully considered and found wanting in sufli-
ciency to warrant a new trial. Indeed, with
the defendant’s plea of insanity rejected by
the jury, there is little he could hope to ac-
complish, even if granted another hearing.
The verdict and judgment will be upheld.
No error.
Cy
STATE v. BITTINGS.
No. 548.
Supreme Court of North Carolina.
June 20, 1934.
!. Criminal law G>1129(1)
Judgment may be aflirmed on motion of
Attorney General for failure properly to pre-
sent exceptive assignments of error.
The object of an “assignment of error”
is not to create a new exception which
was not taken at the hearing, but to se-
lect from those which were taken such
as the appellant then relies on after he
has given more deliberate consideration
to them than may have been possible dur-
ing the progress of the trial or hearing.
The assignment of error must be based
upon the exception duly taken at the time
it was due in the orderly course of pro-
cedure, and should coincide with, and not
be more extensive than, the exception it-
self,
{Ed. Note——For other definitions of
“Assignment of Error,” see Words &
Phrases. ]
2. Criminal law €=>1129(1)
Supreme Court on appeal exercises only
appellate jurisdiction and errors alleged
Pg be presented as law directs (C. S. $
3. Criminal law €=693
Objections to admission of incompetent
evidence or exclusion of competent testimony
N. O. 299
may be waived by failure to object in apt
time.
4. Criminal law €=1030(1), 1129(1), 1178
Errors not appearing on face of record
proper may be waived by failure to note ob-
jections or properly to assign errors and dis-
cuss them on brief,
5. Criminal law €=1044
If defendant wished to challenge suffi-
ciency of evidence to show premeditation and
deliberation beyond reasonable doubt, motion
to nonsuit on capital charge should have
been lodged at close of state’s case, excep-
tion noted, if overruled, and motion renewed
at close of all evidence, exception again not-
ed, if overruled, and, in preparing statement
of case on appeal, assignment of error should
have been made based upon second exception
(C. S. § 4643).
6. Criminal law € 1044
If defendant wished to challenge suffi-
ciency of evidence to show premeditation and
deliberation beyond reasonable doubt, de-
fendant should have moved for directed ver-
dict on capital charge, noted an exception,
if overruled, and predicated assignment of
error upon such exception (C, S. § 4643).
7. Criminal law €>1086(14)
Alleged insufficiency of evidence to show
premeditation and deliberation beyond rea-
sonable doubt held not presented for review,
where record contained no exception and as-
signment of error relating to evidence (C. S.
§ 4643; Supreme Court Rules, rules 19(3), 21,
28).
8. Criminal law €=778(11)
Charge that, in stating state’s conten-
tions, accused’s flight from scene of killing
was circumstance indicative of guilt, held not
erroneous, where court was not undertaking
to state law of flight.
9. Criminal law >1038(1)
Exceptions to statement of contentions
not called to attention of judge at time so as
to give him opportunity to correct them if
erroneous are waived.
10. Criminal law €=972
Judgment in criminal prosecution may
be arrested on motion duly made only when
some fatal error or defect appears on face
of record.
11. Homicide @>146
Admission of intentional killing with
deadly weapon raised sufficient presumptions
to establish unlawful killing with malice,
which is “murder in second degree.”
[Ed. Note.—For other definitions of
“Murder in Second Degree,” see Words
& Phrases.)
@=For other cases sce same topic and KEY NUMBER in all Key Number Digests and Indexes
72-926
(UOSTaT) BUTTOISD UAION poeqynoorqoeTS ‘HOeTQ ‘yonuemm ‘OONTLITA
300 N.C.
12. Homicide €>232
Evidence of premeditation and delibera-
tion sustained conviction of sharecropper for
murder of landlord.
——_+——————
Appeal from Superior Court, Person Coun-
ty; Devin, Judge.
Emanuel Bittings, alias Spice Bittings, was
convicted of murder, and he appeals,
No error.
Criminal prosecution tried upon indictment
charging the defendant with the murder of
one T. M. Clayton.
The record discloses that on the morning of
September 7, 1933, the defendant, a tenant or
sharecropper, shot and killed his landlord
under circumstances which the jury found to
be murder in the first degree.
The evidence on behalf of the state tends to
show that the defendant lived in a tenant
house about fifty yards from the home of his
landlord in Person county; that the two had
cultivated some seven or eight acres of corn
and tobacco that year on shares, each to get
one-half of the crops, and the defendant to
furnish himself; that a quantity of tobacco
was in the barn on September 7, which it was
customary, on taking out of the barn, to put
in the packhouse; that instead the defendant,
with his two children, was putting the tobacco
in his own house; that, upon seeing what was
being done, the landlord, accompanied by his
wife, went to the home of the defendant and
said: ‘Don’t put that tobacco here in this
house; there is no room in here; take every
stick of it and carry it back to the pack-
house”; that the defendant said something in
reply, which the wife of the landlord could
not understand, but, in consequence of what
was said, the landlord turned and remarked:
“TI have got no more to say,” and started away
from the house; that the defendant thereupon
got his shotgun from over the door and shot
the landlord, hitting him in the right side of
the neck and killing him instantly.
It is also in evidence that throughout the
cultivating season the defendant and the de-
ceased discussed plans for working the crops;
that, when it was agreed, for example, that on
to-morrow the tobacco should be primed, the
defendant would disappear And stay away all
day. “Spice seemed-to thiyk he was bound
to make these trips; that he had to work for
sompthing to eat, he said. That would be his
excuse.”x While not under contract to do so,
the deceased told the defendant “he would
175 SOUTH EASTERN REPORTER
give him some meat and bread, but after he
found out the defendant was not trying to
make anything, he refused to furnish him,”
It is further in evidence that the deceased
was unarmed at the time of the homicide; and
that his wife called to the defendant not to
shoot, just as he levelled his gun. The de-
fendant immediately fled the vicinity, going
first to Roanoke Rapids, then into Virginia,
Pennsylvania, Ohio, and was finally arrested
in Sharon, Pa.
The defendant took the stand in his own
behalf and testified that he was to get half
the tobacco and half the corn; that Mr. Clay-
ton “wasn’t able to furnish me rations, so I
come over here to get Mr. Crowell, who prom-
ised he would furnish me bread to make a
crop on, I raised a garden, corn, some cane
and potatoes”; that on the morning of the
homicide they were dividing the tobacco, the
deceased not wanting the children of the de-
fendant to handle his part: “I told him that
my children might tear his up. He said he
was going to the house and get his gun and
stand there and watch them, he was not going
to let them break his, * * * He had run
them with his gun two or three times when I
was not there. I goes to the house, goes up-
stairs. The forty sticks were on the porch.
I told the children to pass them on to the
house to me and I would lay it upstairs and
wait until Mr. Clayton got on better terms,
and then I would move it out. Mr. Clayton
come on the porch, knocked the little boy up
against the house and stamped the tobacco
out of his hand. He come running in the
house crying, and my wife, she call me: ‘You
will have to come down here, he is down here
fighting these children.’ I come down and
asked him to go way. So he wouldn’t do it,
he kept standing there fussing. I went on
back in the house, upstairs. He was standing
in front of the house. He called his wife:
‘Sallie come here. I want you to come here
and hear the last words I tell the G—— d
negro before I blow his brains out.’ He start-
ed in his pocket with his hands, and the gun
was over my head. I took the gun, come down
and shot him. No, sir, I never‘had any
trouble with him before. He was standing in
front of me whenI shothim. * * * I didn’t
get mad with Mr. Clayton that morning., No
need for me to get mad. I didn’t have no
where in God's world to put nothing but just
in my house.” ‘
The defendant further testified that he went
into the woods—not intending to seek refuge
in flight—but, when he saw in the Henderson,
@>For other cases sce same topie abd KEY NUGIBER in ail Key..Number Digests and Indexes
a Spee apy +
STATE v. BITTINGS N.C. 801
175 S.E.
paper that a mob was after him with guns
and dogs, bloodhounds, he went away, intend-
ing to come home soon. :
Verdict: Guilty of murder in the first de-
gree.
Judgment: Death by electrocution.
The defendant appeals.
M. Hugh Thompson, C. J. Gates, and Cecil
A. McCoy, all of Durham, for appellant.
Dennis G. Brummitt, Atty. Gen., and A, A.
F. Seawell, Asst. Atty. Gen., for the State.
STACY, Chief Justice (after stating the
case).
[1] If this were not a capital case, it would
be necessary to affirm the judgment, on mo-
tion of the Attorney General, for failure
properly to present exceptive assignments of
error. State v. Freeze, 170 N. C. 710, 86 S. E.
1000; State v. Kelly (N. C.) 175 S. E. 294, this
day decided. In defense of counsel now ap-
pearing for the prisoner, however, it should
be said they did not represent him at the trial
or in the court below.
No exceptions were taken to the admission
or exclusion of evidence and none properly to
the charge. There was a formal motion to
set aside the verdict and one in arrest of
judgment, to which exceptions were entered,
but otherwise the assignments of error are
without exceptions to support them.
Speaking to a similar situation in Boyer v.
Jarrell, 180 N, C. 479, 105 S. E. 9, 11, the
court, quoting with approval from Harrison v.
Dill, 169 N. C. 542, 86 S. E. 518, said: “The
object of an assignment of error is not to cre-
ate a new exception, which was not taken at
the hearing, but to select from those which
were taken such as the appellant then re-
lies on after he has given more deliberate con-
sideration to them than may have been pos-
sible Guring the progress of the trial or hear-
ing. The assignment of error, therefore, must
be based upon the exception duly taken at the
time it was due in the orderly course of pro-
cedure, and should coincide with and not be
more extensive than the exception itself. In
other words, no assignment of error will be
entertained which has not for its basis an ex-
ception taken in apt time.”
Again, in Re Will of Beard, 202 N. C. 661,
163 S. EB. 748, it was said: —
“The assignments of error are presumably
based upon exceptions in the record, though
they are neither brought forward nor specifi-
cally pointed out. Merritt v. Dick, 169 N. C.
244, 85 S. E, 2, This falls short of the re-
quirements of rule 19, § 3, of the Rules of
Practice in the Supreme Court, 200 N. C. 824.
Raw!s v. Lupton, 193 N. C. 428, 187 S. E. 175.
Only exceptive assignments of error are con-
sidered on appeal. Dixon vy. Osborne, 201 N.
C. 489, 160 S. E. 579; Sanders y. Sanders, 201
N. C. 350, 160 S. E. 289; State v. Freeze, 170
N. ©. 710, 86 S. E, 1000. The Constitution,
art. 4, § 8, empowers the Supreme Court ‘to
review, on appeal, any decision of the courts
below, upon any matter of law or legal in-
ference’; and this is to be presented in ac-
eordance with the mandatory rules of the Su-
preme Court. Calvert v. Carstarphen, 133 N.
C. 25, 45 S. E. 853. The court has not only
found it necessary to adopt rules of practice,
but equally necessary to enforce them and to
enforce them uniformly. Pruitt v. Wood, 199
N. ©. 788, 156 8. E. 126; Byrd v. Southerland,
186 N. C. 384, 119 S. E. 2.
“Furthermore, ‘exceptions in the record not
set out in appellant’s brief, or in support of
which no reason or argument is stated or au-
thority cited, will be taken as abandoned.’
Rule 28; Gray v. Cartwright, 174 N. C. 49, 95
S. E. 432. The relation between appellants’
brief and the record is discernible only after
a voyage of discovery. Sturtevant Co. v. Cot-
ton Mills, 171 N. C. 119, 87 S. E. 992. For
this, we are furnished no guides.”
[2] Likewise, in Rawls v. Lupton, 193 N. C.
428, 187 S. E. 175, and Cecil v. Lumber Co.,
197 N. C. 81, 147 S. E. 735, attention was
called to the fact that these requirements are
statutory, C. S. § 643, as well as mandatory,
under numerous decisions of the court. The
Supreme Court on appeal exercises only ap-
pellate jurisdiction, and it is necessary that
the errors alleged should be presented as the
law directs. State v. Webster, 121 N. C. 586,
28 S. E, 254.
[3,4] Objections to the admission of incom-
petent evidence, or the exclusion of competent
testimony, may be waived by failure to ob-
ject in apt time. State v. Steen, 185 N. C. 768,
117 S, E. 798. Similarly, other errors, not ap-
pearing on the face of the record proper, may
be waived by failure to note objections or
properly to assign errors and discuss them on
brief. Merritt v. Dick, 169 N. C. 244, 85 8S. E.
2.
[5-7] In the present case, for instance, if
the defendant wished to challenge the sufli-
ciency of the evidence to show premeditation
and deliberation beyond a reasonable doubt,
as indicated on the argument, motion to non-
suit under C. S. § 4648, on the capital charge,
should have been lodged at the close of the
’
5
%
BOHANNON = Greensboro, NC, 28-1907 = CONTINUED.
WHEN when he said: 'Boss, I jess nacerly ruther to be hung myself than to tell that nigger
"bout it. He's er curious man, not like other folks, I jess ain't gwine to cross him
for he ain't colored right, his eye is dangerous, he gum wrong, an he wrong all over, I'm
mighty sorry for him, but none of us will ever tell him, sir,'"
TIMES-DISPATCH, Richmond, Vae, 12=31-1907 Kax (2-5.)
:
the reward for his capture," (Later) "(Special Dispatch to the Times-Dispatch.) Greens-
boro, Ne Ce, August l, = Frank Bohannon, the negro who murdered Foreman Beachman Tuesday
and was arrested in Danville last night, came with officers without requisition papers
and was safely jailed at 7 o'clock. He says he was persuaded to-commit the deed by Al
and Oscar Crutchfield, the two negroes in jail accused of being awcessories, He talks
freely, saying he MXAMHMKAXBA reached Danville Thursday night, and did not know Beachman
was dead until officers told him, Guard is placed around and .in jail as precathion,
Train bearing the negro stopped a mile out of the city and he was taken to jail in
closed carriage, but few knowing he is here."
TIMES=DISPATCH, Rychmond, VA, August 5, rages a °
"(Special to the TIMES-DISPATCH.) Greensboro, NC, July 31, 1906. = Frank Bohannon, a
negro; at the vamp of the Southern Railway double-tracking force, near High 'Point,
shot and killed a white oversear, named Beachman, this afternoon. Monday afternoon,
because of unsatisfactory work and behavior, Beachman discharged Bohannon, This an-
gered the negro and after remaining away for a short time he returned to the camp to
raise a row. He was driven away and left in an ugly mood, swearing vengeance. He
secured'a M@MBXH double-barrel shotgun and, this afternoon, as Mr. Beachman was
passing along he fired upon him, both loads taking effect in the bowels, Friends rushed
to his assistance and the wounded man was placed on ¥H@ the south-bound local train and
taken to High Point, but he died in the:depot just before reaching there, The negro
fled and posses with bloodhounds are s earching for him,"
“TIMES-DISPATCH, Richmond, Va., August 1, 1906 (2/7.)
"(Special to the Times-Dispatch.) Greensboro, NC, Sept, 28, = This week's term of
Superior Court for the trial of criminal cases adjourned this afternoon, Judge Long
passed the following sentence of parties convicted: Frank Bohannon, convicted of murder
of Re E. Bachman, a railroad foreman, was sentenced'to be hanged October 25ths Kizer
Crutchfield, convicted as accessory to this murder, was sentenced to the penitentiary
for life..,'hen sentence was .pronounced on Bohannon, he began swaying as the Judge reached
the point of naming the day of his execution, and although two officers rushed to his
support, he collapsed completely, creating.onsternation in the crowded court-room
by his groans and BiXXakxX gutteral struggling. Two physicians present immediately
attended him, but’ he was totally collapsed; MX4XXMKMAXX#Z#Z#d his throat riged and un-
able to: swallow,.and, although hypodermic injections were. given'him, he has not yet,
at 8 o'clock, regained his senses°or pulse, and his death is expected before: morning."
TIMES DISPATCH, Richmond, Virginia, September 29, 1906 (5/7.
"Greensboro, NC, Dec. 30, 1906. = It is strange, but nevertheless true, that Frank Bohannon,
now in jail under the sentence of death, is regarded-by his. fellow prisoners and others as
_such~a hoo-doo, no one has yet had the courage or pluck, or nerve, to tell him that the
Supreme Courb over two weeks ago refused a new trial and that his time in this world is
short, his death on the gallows certain, When RHHH Frank was 4#X sentencediby Judge Fer-=
guson, he swooned away and lay as a dead man onthe floor of the courtroom. and later in the
grand jury room for several hours, and it was a week before he.was out of danger. Several
months before this, the negro, when it was apprehended that there might be a lynching, and
troops were in jail to protect it, Frank swooned thebe and it was a week before he came
too, Old Ki Crutchfield, who is now in the-penitentiary serving a life sentence for -
inciting Frank to the murder, was also hedty scared that night, and swallowed a quart of
kaleomine he found in a bucket which had been used in cleaning the jail alls, in an effort
to commit suicide, Frank besides being an unnaturally’ tall and lank fellow, has a pecue
‘liarly dusky ginger bread complexion, very nearly. blue gums, and is blind in one eye, the
sightless white ball protruding from the socket. From the foregoing it is easy to see why
Frank is regarded with something akin to fear and supezstition by his fellows. When .asked
this morning if he had been informed of his fate, the jailer said nobody had told-him, and
he talked all the time of how his life would be saved by the “Supreme Court. All the
prisoners know the truth, but not one had told Frank the bad news Asked why he didn't
breach it to him, the jailer said with a wince, ' Hi It's the Sheriff's business.,' When
the sheriff was approached on the subject and asked why he did not -let the poor devil
know, he replied, ‘Its His lawyer's. business to do that, not mine, until I am called upon
to give him official notice,' Fran, .s lawyer said he had done al . .
it Tooked like some of his fellow prisoners or the jatlertoultl have done ak Cee one
Only one of the prisoners who has been ntim: ith mm
, } een not only intimate with, but kind and s theti
to the doomed man, was finally interrogated and he probably sized up ‘the Ais’ Bitumtion
376 31 SOUTHEASTERN REPORTER. Wo
piece of real estate in the city of Goldsboro.
The defendant, in his answer, admitted his
agreement to purchase, and said he was
ready and willing to pay the price agreed on
if he could be sure of getting a good title
to the property, and he averred that the
plaintiff had no such title. Whether or not
the plaintiff had a title in fee absolute to
_ the property depends upon the construction
of certain clauses in the will of James F.
Kornegay, deceased. The plaintiff insists
that he took a title in fee upon the death
of the testator (his father), and the defend-
ant contends that the estate of the plaintiff
is a fee defeasible upon his mother’s sur-
vival of him. The argument on the rehear-
ing has at least satisfied us that the rights
of the widow, Frances E. IXornegay, are 80
vitally involved in this action as that it
would be proper to have her made a party
to the action. A decision in the case be-
tween the parties as now constituted would
not ‘conclude the rights of Mrs. Kornegay,
and the question sought to be decided would
not be settled thereby, and, if acted upon by
others in the purchase of real estate de-
vised to the plaintiff under the will of the
testator (as it probably would be), might re-
sult in litigation between the purchasers and
the widow, and thereby subject them to an-
noyance and costs, and loss of time, if noth-
ing more. We therefore have determined, in
order that the rights of all persons interest-
ed may be disposed of in one final judgment,
to remand the case to the superior court of
Wayne county, to the end that Frances E.
Kornegay may be made a party defendant,
avith the right to answer. This course has
been adopted before by this court in the
case of Finlayson v. Kirby, 121 N. C. 106,
28 S. E. 135. Remanded for the purposes.
mentioned in this opinion.
(128 N. C. 713)
STATE v. BOOKER.
(Supreme Court of North Carolina. Oct. 25,
1898.)
Homicipe — Ixstrouctioxs — PREMEDITATED KILL-
ING—EVIDENCE.
1. On a trial,for murder the evidence show-
ed that the prisoner went to the house of
deceased, with whom he had some words, went
away, and in an hour returned, with a gun,
and killed deceased. The-court, after reciting
the evidence, instructed that, if the jury were
satisfied beyond a reasonable doubt that the
prisoner did the killing, they should return a
verdict of murder in the first or second degree,
as they should find the facts, charging the law
as to murder in the second degree; that, be-
fore they could convict of murder in the first
degree, they must be satisfied beyond a reason-
able doubt that the killing was willful, delib-
erate, and premeditated; that it was not nec-
essary that the design to kill must have. ex-
isted for afly length of time, but it must have
existed before the killing; and that they were
the judges of the weight of the testimony and
the credibility of the witnesses. Held sufli-
cient, within the requirements of Code, § 413,
providing that the court shall state correctly
the evidence, and declare and explain the law
arising thereon. :
2, It is not error to refuse instructions, even
if they are proper, where they are substan
tially embodied in the main charge.
3. Under Laws 1893, c. 85, § 1, making al
murder perpetrated by any kind of willful, de
liberate, and premeditated killing murder ir
the first degree, the state must prove delibera
tion and premeditation, but it may do so by
circumstantial evidence.
4. Where it appeared, on a trial for murde)
fn the first degree, that the prisoner had some
words with deceased, went away, and cam¢
back in about an hour, with a gun, and killec
the deceased, the jury were justified in inferring
that the death of the deceased was the result oi
deliberation and premeditation of the prisoner.
5. Laws 1893, c. 85, § 1, provides that al
murder perpetrated by means of poison, star
vation, or torture, or by any kind of willful
deliberate, and premeditated killing, is murde)
in the first degree. Held that, on the trial for
murder by shooting deceased with a gun, it
was not error to refuse an instruction that, tc
eonvict of murder in the first degree, the pris
oner must have used the same degree of de
liberation and premeditation as would have
been used if he had killed the deceased by star.
vation.
Appeal from superior court, Wake county
Timberlake, Judge.
James Booker was convicted of murder in
the first degree, and he appeals. Affirmed.
Penny White testified for the state: ‘De
ceased was my daughter. She died year be.
fore last. Her head was shot off. The pris
oner came to my house that morning after
pepper, and, after he went off, the deceased
was sitting on the steps. In about an hou
the prisoner came back. I heard deceased
halloo. She said, ‘My Lord, have mercy
look here! and fell over on her side. Pris-
oner shot her in the head. He had a gun in
his hand, pointed at her, and shot off the
back of her head. I have known him five
years. He got black pepper, and weut off,
but came back again. The deceased came
from the garden, and sat down on the door-
step. There -was a barrel near by. When
prisoner came first, he had no gun. About 10
o’clock he came back again, and I heard de-
ceased say, ‘My Lord, look here!’ and 1 look-
ed, and the prisoner came around with a gun,
shot her, and she fell behind the barrel on
her side. The gun was about 3 feet from her
when he shot. Load went in the back of her
head. She never spoke a word after that.
[Witness shows part of a dress said to have
been worn by deceased at the time of the
shooting. The puff on one of the sleeves
shows a hole, and red stains appear upon the
lining of the garment.] Deceased had on this
when she was shot. Prisoner said nothing
after he shot her, but went back to Crabtree.
Robert and Richard Blake came to me first.
I told them Jim Booker shot her. I was in
hearing distance, and heard my daughter say
nothing to provoke the difficulty. There was
no fight; as I saw, and I could have seen It
if there had been one. I could have heard
too, if there had been any quarreling.” On
r cross-examination: “I was not as far away
as it is from where I am sitting to the court-
house door. Deceased didn’t go into the
house from the time she got him the peppe-
N.C.) STATE y.
until she was killed, and carried in. I did
not tell Mr. Walters that I had to scuffle with
prisoner before he shot my daughter. When
prisoner came back the second time he did
not talk with deceased. She was behind the
barrel, squatting, and he shot her behind the
barrel. He did not shoot her with my gun.
He carried the gun off with him.” Robert
White testified for the state: ‘I am 14 years
old. Deceased was my mother, and was kill-
ed when I got there. I had been hunting
with a single-barrel gun. We had two guns,
and the double-barrel gun was there where
I left it, and when I came back both barrels
were loaded. My mother was behind the bar-
rel, dead, when I came home. Grandmother
told me Jim Booker had come there and kill-
ed my mother. She said nothing about a fuss
between them.’’ On cross-examination: ‘No
scuffling there; no evidence of any there. I
know our gun was loaded, because I shot
both loads out the next week.” Robert Blake
testified for state: “I heard report of gun
that morning, and some one screaming. I
started towards home, and as I came to the
corner of the fence I saw Robert White com-
ing up the hill. Asked him what was the
matter, and he said the prisoner had shot his
mother. I went on, and saw the old lady,
who said Jim Booker had killed her. I saw
the deceased resting on her side, with her
head shot off. I looked at the gun in the
house, and found that it had not been shot.
I saw nothing of prisoner. Old lady said he
went off towards Crabtree.” C. M. Walters,
deputy sheriff, testified for state: ‘‘Went to
this hause at 11 in the morning. Found some
people there. Found deceased behind the bar-
rel. Back of her head was turned over on
her face, and brains scattered, and pieces of
skull blown about. Old Lady Penny said the
deceased was sitting on the doorstep [as she
stated on her examination], and that Booker
shot her as she started up. She said the de-
ceased started to run. Deceased was near the
house, and behind the barrel. I saw no signs
of scuffing, and there was no suggestion that
any fight had taken place. Old lady said, as
prisoner and deceased went off that morning
before the shooting, that they were quarrel-
{ng. Prisoner could have gotten through the
house from behind, and shot deceased, with-
out being seen by the old lady. There were
two ways by which he could have got there
without being seen.’’
Prisoner’s evidence: Blake recalled, and
testified: “I found no shot about deceased.”
R. M. Haughton testified: “I"ound the de-
ceased 7 or 8 feet from the barrel. Did not
measure the distance. Old Lady Penny said
she saw prisoner with a gun, and ran to meet
him, and caught the gun, and said to him
‘Jim, you are not going to shoot my child,’
and that prisoner threw her away from him,
and shot her daughter. Walters and others
were present.” On cross-examination: “She
eald, the first she knew, prisoner was going
out of the house with the gun.”
BOOKER. 877
Redirect by the state: Walters, recalled:
“I was there with Haughton, and did not
hear anything about a fuss or scuffling, that
he testified about.” Pearce testified: “I was
there with Haughton, and did not hear Penny
say what Haughton testified about.”
The foregoing is all the evidence introduced
on the trial. The prisoner, in apt time, re-
quested the court to charge the jury as fol-
lows: ‘(1) That malice must be shown by
the state before prisoner can be convicted of
murder in the first degree. (Refused, except
as covered by general charge; prisoner ex-
cepted.) (2) That, to convict prisoner of mur-
der in the first degree, the same degree of
deliberation and premeditation must have
been used by the prisoner as would have been
used by him if he had killed deceased with
poison. (Refused, except as covered by gen-
eral charge; exception.) (8) That, to convict
of murder in the first degree, the prisoner
must have used the same degree of delibera-
tion and premeditation as would have been
used if he had killed deceased with starva-
tion. (Refused as above, and prisoner ex-
cepted.) (4) To convict of murder in the first
degree, the same degree of premeditation and
deliberation must have been used by prisoner
as he would have used ff he had killed de-
ceased with imprisonment. (Refused as
above, and prisoner excepted.) (5) That, be-
fore prisoner can be convicted of murder in
the first degree, the jury must be satisfied
beyond a reasonable doubt that he used the
same degree of deliberation and premedita-
tion as he would have used if he had killed
deceased by torture, starvation, poison, or im-
prisonment. (Refused as above, and prisoner
excepted.) (6) That if jury believe that kill-
ing resulted from a fight between prisoner
and deceased, which occurred immediately
before the death of deceased, the prisoner is
not guilty of murder in the first degree. (Re-
fused as above, and exception by prisoner.)
(7) That if jury should not be satisfied be-
yond a reasonable doubt that the death did
not result from a fight, which occurred
shortly before the killing, between prisoner
and deceased, they should not find prisoner
guilty of murder in the first degree. (Re-
fused as above, and prisoner excepted.) (8)
That if they should find that the death occur-
red from a fight which was entered into by pris-
oner, deceased, and her mother, shortly before
the killing, he fs not guilty of murder in the
first degree. (Refused as above, and prisoner
excepted.) (9) That unless they shall be sat-
isfled beyond a ‘reasonable doubt that the
death did not occur in consequence of a fight
which took place between the prisoner, de-
ceased, and another shortly before the death
of deceased, he Is not guilty of murder in the
first degree. (Refused as above, and prisoner
excepted.) (10) That if jury should believe
that the killing was the result of a quarrel
that had, immediately prior thereto, occurred
between deceased and prisoner, the prisoner
is not guilty of murder in the first degree.
ee *‘yusyood
t
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Be eee oe he os ss
ae
sa
epee anes poke
eo ee
878 81 SOUTHEASTERN REPORTER. (N.C.
(Refused as above, and prisoner excepted.)
(11) ‘That unless they are satisfied beyond a
reasonable doubt that the killing did not re-
sult from a quarrel between prisoner and de-
ceased, which occurred immediately before
the killing, the prisoner fs not guilty of mur-
der in the first degree. (Refused as above,
and exception by prisoner.) (12) That, to
constitute murder in the first degree, all the
elements must be united to constitute that
offense. (Refused as above, and exception by
prisoner.) (13) That, before the jury can
convict of murder in the first degree, they
must be satisfied beyond a reasonable doubt
of the truth of each fact which constitutes
the crime. (Refused as above, and exception
by prisoner.) (14) That prisoner is not guilty
of murder in the first degree if the jury shall
believe there was a quarrel between him and
deceased some minutes before the killing, un-
less they shall be satisfied beyond a reason-
able doubt that he used the same kind or de-
gree of premeditation or deliberation as
would be used in killing by poison, lying in
wait, starvation, torture, or imprisonment.
(Refused as above, and prisoner excepted.)
(15) That they must be satisfied beyond a
reasonable doubt that prisoner used the same
degree of premeditation or deliberation in
killing the deceased, no matter what length
of time elapsed after a quarrel or fight be-
tween them, as would be necessary to kill by
poison, lying in wait, starvation, torture, or
imprisonment. (Refused as above; prisoner
excepted.) (16) That in weighing the testi-
mony of the mother of deceased it is the duty
of the jury to consider the fact that she Is
the mother. (Refused as above; prisoner ex-
cepted.) (17) That the same weight is not
to be allowed to the testimony of a witness
who has made contradictory statements about
material matters; aud, unless such witness
is supported by testimony of a convincing na-
ture, the jury should not convict of murder
in the first degree. (Refused as above; pris-
oner excepted.) (18) That in considering the
flight of prisoner the jury should take into
consideration the fact that prisoner is a
colored man, of but little intelligence. (Re-
fused as above; prisoner excepted.) (19)
There is no presumption of malice from the
fact that the deceased was killed. It is the
duty of the state to satisfy the jury beyond a
reasonable doubt that malice existed from
- prisoner towards deceased at the time of the
killing. (Refused as above; prisoner except-
ed.) (20) That the kind or degree of malice
that prisoner had towards’ deceased at the
time of the killing must have been such as
a person has towards another whom he kills
by way of poison, lying in wait, imprison-
ment, starving, or torture. (Refused as
above; prisoner excepted.) (21) That the jury
must be fully satisfied, or satisfied beyond a
reasonable doubt, that prisoner had such
der in first degree. (Refused as above; pris-
oner excepted.)’’
Charge of the court: “Prisoner is char-
ged in the indictment with murder in the
first degree. Under the Dill, however, the
jury may find a verdict for murder in the
first degree or second degree, manslaughter,
excusable homicide,—which would be, ‘Not
guilty,’—according as the Jury may find the
facts to be from the evidence. I say, ‘ac-
cording as they may find the facts from the
evidence,’ and I want to emphasize this ex-
pression, for juries have no right, when cer-
tain facts are established, to find a verdict
for a degree of homicide different from that
which the law says must follow such a find-
ing of facts. To illustrate: Suppose the evi-
dence establishes the fact that prisoner slew
deceased through necessity, in order to save
his own life, or prevent great bodily harm to
himself; the law says this will be excusable
homicide, and your verdict must be, ‘Not
guilty.’ Again, suppose the evidence estab-
lishes the fact that the killing, though unlaw-
ful and felonious, was without malice, either
expressed or implied; the law says this
‘ would be felonious ‘slaying, and your ver-
dict must be, ‘Manslaughter.’ Suppose, again,
the evidence establishes the fact that. the
killing was unlawful, felonious, and with
malice, but without premeditation or deliber-
ation; the law says this is murder fn the sec-
ond degree, and so your verdict must be.
Again, suppose the evidence establishes the
fact that the killing was unlawful, felonious,
and with malice, also that it was with pre-
meditation; the law says this is murder in the
first degree, and so your verdict must be.
I know there is a common idea among the
people that {n criminal cases the jury is the
judge both of the law and fact, and can ren-
der just such a verdict as it may see fit,
regardless of how the facts may be found;
but I tell you, you have no such right under
your oaths. Your province is exclusively to
find facts, and your oaths require that you
should apply the law as given you by the
court to these facts, and render a verdict in
accordance therewith. Your own common
sense and reason tell you it must be done.
If you are to be the judges of both the law
and fact, why require the court to instruct
you at all? It would be idle to do so.
Again, if you follow the court, and the court
make a mistake, there Is the supreme court
to correct it. If you refuse to do this, and
follow your own ideas of law, and mistake
the law, there !s no power to correct It. I
said I need not cite authority to sustain these
positions, but to impress what I have said I
will quote what the supreme court has said
in State v. Covington, 117 N. C. 834, 23 8. EB.
337: ‘That the statute does not give juries
the discretion, when rendering their verdict,
to determine of what degree of murder a
prisoner is guilty. They must find a verdict
malice (as indicated in above prayer No. 20),
before they can convict the prisoner of mur-
according to the evidence, and, believing s
N.C.) STATE y. BOOKER. 879
prisoner guilty beyond a reasonable doubt
in the first degree, it is their duty to so find,
however much inclined to show mercy by ren-
dering a verdict for the lesser offense.’ And
I will also add, as I have already said, be-
lieving the prisoner guilty of murder in the
second degree, manslaughter, or not guilty
at all, they must so find, however much sym--
pathies or prejudices might incline them to
find otherwise. In criminal cases the pris-
oner {gs presumed to be innécent, and the
burden of establishing his guilt is upon the
state, and the state must do this beyond a
reasonable doubt. However, when the state
has satisfied the jury beyond a reasonable
doubt, in an indictment for murder, that
prisoner slew deceased with a deadly weap-
on, the law presumes that the prisoner is
guilty of murder in the second degree, and
the burden shifts to the prisoner to satisfy
the jury—not beyond a reasonable doubt,
but simply to satisfy them—that he was ex-
cusable, or that the crime fs for th® lesser
offense, to wit, manslaughter. So the first
thing you will consider is, did the prisoner
slay the deceased as alleged? The state re-
lies on the following testimony: [The court
here read the testimony in full.] The state
says this testimony should satisfy you be-
yond a reasonable doubt of the killing as
alleged. You must say how that fact fs,
and, if you are not so satisfied,—that is, if
you are not satisfied beyond a reasonable
doubt that prisoner killed deceased,—you need
not go further. But, {f you should be so
satisfied, then you will proceed to determine
whether the crime be murder in the first de-
gree, second degree, manslaughter, or excus-
able homicide. Under the law, as the court
sees {t, there is no evidence to support a
verdict of excusable homicide or manslaugh-
ter; so that, If you should be satisfied be-
yond a reasonable doubt that the prisoner did
the killing, it will be your duty to return a
verdict of murder {In the first or second de
gree, as you may find the facts to be, apply-
{ng the principles of law which I have giv-
en you. Now, although you may be satisfied
beyond a reasonable doubt that the prisoner
did the killing, as alleged, with a gun, which
would make him guilty, as I have already
explained, nothing else appearing, you should
render a verdict of murder tn the second de-
gree. Before you can render a verdict of
murder in the first degree, you must be sat-
Isfled, further, beyond a reasonable doubt,
that the killing was willful, deliberate, and
premeditated. Now, ft Is not necessary that
the purpose or design to kill must exist for
any particular length of time, but it must
have existed before the killing, else it will
not be murder in the first degree. The tes-
timony relied on by the state to show this fs
that which tends to show that on the way to
the house of the deceased the first time the
prisoner and deceased had some words; that
afterwards he left, and fn an hour returned,
circumstances detailed by the witnesses, if
they are to be believed. Prisoner says this
ought not to so satisfy you; that the testimony
of the state tending to show this is unreliable,
but, even if believed, is not sufficient to fully
satisfy you that the killing was willful and
premeditated. You are the ministers of the
law chosen to decide the facts, to pass upon
the weight of testimony, to say whether it
is to be believed or not believed, to say that
it establishes certain facts or that it does
not. In weighing the testimony {ft will be
your duty to consider the Interest of any of
the witnesses, if you find that there is any;
in considering his filght, if he did flee, the
fact that he is an !gnorant man; to consid-
er, for instance, that the witness Penny Is
the mother of deceased; to consider any con-
flicting statements, if you find there are any;
to consider the demeanor of witnesses on the
stand, and any other facts or circumstances
woich tend to uphold or discredit the testi-
mony of any of the witnesses.” You will not
let the fact that the prisoner did not go on
the stand prejudice you against him.”
The prisoner excepts to the charge of the
court as not indicating the sort or degree
of malice which {Is required by Act 1893, ec.
85. Exception also as not containing any
one or more of the 21 requests for charge by
prisoner. Motion for new trial overruled.
Prisoner excepted, and appealed from the
judgment pronounced.
8. G. Ryan, for appellant. The Attorney
General, for the State.
DOUGLAS, J. This is a conviction for
murder in the first degree. The evidence
tended to show that the prisoner went to the
home of the deceased in the morning of the
day she was killed, and got some black pep-
per; that he went off, but came back in
about an hour, with a gun, and without prov-
ocation shot the deceased in the back of the
head, killing her instantly. The only excep-
tions are to the charge and refusal to charge,
none of which, in our opinion, can be sustain-
ed. The able charge of his honor correctly
stated the law, and fully and clearly present-
ed every reasonable contention of the, pris-
oner. It met the requirements of section 413
of the Code, which provides that the court
“shall state in a plain and correct manner the
evidence given in the case and declare and
explain the law arising thereon.” He is not
required to give ipsissimis verbis the Instruc-
tlons prayed by the defendant, either in civil
or criminal cases, even !f they are prop-
er. It is sufficient if they are given substan-
tially {n the charge. State v. Bowman, 80
N. C. 432; Rencher v. Wynne, 86 N. C. 268;
State v. Boon, 82 N. C. 637; State v. McNeill,
92 N. C. 812; State v. Anderson, Id. 732;
State v. Jones, 97 N. C. 469, 1 S. E. 680;
State v. Brewer, 98 N. C. 607, 3 8. E. 819;
Newby v. Harrell, 99 N. C. 149, 5 S. E. 284;
with a gun, and slew the deceased under the
Michael y, Foil, 100 N. C. 178, 6 S. a. 261;
"ent Boast toe sonable
ehew hand 1b?
eho Bleeind syeeghs i
pape ng oe eheriont te Mile Sect,
oe ee eat to th greet at the “annie
fokse:, wee trek. Hone. yReng Be
eX
he. wate of wwe Tt
fe. bovices Thy
ny
Geied tb Decte. ie eo P8 *
iow weet the land It was © Baat y : HOR
i igi Or aenk dvwe the creer, we webl APIDE Lod re aniived: tier chanets wi
was pow stolting | growed upd ober breast, Laniduptet
“iw en Poute:
bas well
sess pier sede Die ee vies ,
er ae apireland @ ed, abd whe ere Tee be peti alae at iat ~
eum Hanes OY pO ge the: water. gr 5 Sher elbows bed ty ‘ x i das , om > é Sy
+ sag tees Dra 2 wmnspherd like a tatk off pti bosty elemned 9h. bert ber ‘ f ba : Ares na arin, Sey oo PG con bea
4 Tois bricht picture was . $e aria her, ; , ‘ lo ate ‘ciated their pull epacry » ne flome inj
Z ly the siundowe of leh’ | two hours ater F gor! qhere—sheiwas very . hal "Utne tt on fHUT Quite se lon be
Sa tie gubering of Aedey "elouds,) gif.” Whenerer) we crite t= raise Piuid | ; your wea, © The weaterh “trai
_ 4 wiht Premhenedt tert stiff neewze, and on "
ce pane airy exalt ert dashing: Une spite
EOL et prow ie fty/ moonligot The:
comet of tendon, Ta paseit 6
to:
by the Junge! cab
yrunid. pit coxnpany
Pare very
busy »
EB,
ber loes were'#
of ber feet.2 Te al é LP aniget i,
is. ie Bot On,
an pate up id “guany tla the
oy br Pag 3 °
) abot ‘
a PR 5 ‘pte 4 no official
cag COM
Et tase he ncer, Sucka! Grogs th :
Ee: ‘abe: Tas be imaines and He gave us f
th frdupmation: oT tae bow Ob the ‘ va : 4
: ( sett Keentg eae! i apie Ft before we ¢
ay a ba ment with
Tawa eeryins Oar eves Ane ean see) them,
Pe anpp a, distinc ly ristog and Satlary t *
Veieereping paves | Our frie nd>onty: & pines : F wees ;
oath. (in a few mbmeots we arc He thet 4 ene cant cata Artie
sf aie thal Chemis be the ud post: H aot wary Siiie eth *, i i ; ; a bave he arch
dye. wah the boiling tide covering eC ee See ti Re by whe chit : , if ee jonrned,’
wilh, silvery spray, tant onic spanned | : aon Teed mat utd Neaberat Poe: 3 inte took ovr ad
y P i * > ry ‘1 % . > ~
b nee industry, and f en i 4
die Dace i ‘onit OF wat
prings ? PC aa
. | Te was at Pembroke, long years age, thé | 6
4 hoive of oy. Abver Nasi ere ie nit gre “4
Vand there dudch Nash, ts
“dat
badd Gopip
5 “ordered ir
‘irgemy ee!
dad man ‘G
born. Cok) Joba DL Wortfor
lem the owner. of the phiatat@
haw bibe tare war hel ansion, as > ats
Ewa torned by tbe Federal (oops: 7 onan ;
Fed had. both bedken. brexd fF yeti Wo Ube hitter
or ington and Greed«
Of) thers, as th-y nad. been: sheltered | lo. the: 1 hét: the: little wie had sodie conver:
m-pson; ais» destroyed on the. far ad- j i Ny inky BB y
‘4
joining, Clermont, the -bome of the two
Governors Sparght, here they are. both hg Ct the: Ritchen at. Lretnort!
darned: and there the Goverpers Spaight’) aise Cobb saidshe would, like. ter kno
died... The land fronts on Trent river; and ‘hat Mis. Bowman ‘aaidl wi re
rine back ip Bryce creek) It ismowy as It dying, Eliza. Jane puttin;
wie freeicus to thé war, the property Off vhe*door said, Thy Inst
Fenty K. Bryan, Esq. Gaston's farm was | was: she wid/papa she
} io thia On. the ‘sanie creek; suhse-P pope it in thaGdrink, of - i
Sara Se y tohis death Tt was owned and ¢ol-/ that ng. eat
treat by the Hono M. ES Manty. “Overt toot ap the chr bit
OEP EH FOU SALE ON ONE AND |
» wo FRAMS “TIME, ‘ 4
tv Dre a a
va faatins Soul, ib the Cy of Rae
‘ aoe thie creck 160. Col .Wanee, bathe day 0) her arpand (to: the
sory tleof Newbray made al: | here all mighty Po \Beywe
ae ie bred Yor ben, bien Sih the hy “Phe. /honshs PRAFRCTLY NEW, CN-
0 al RACHSEIGHT 600D, BUOMA SS0-1
€
ance ‘creek, i
Vance swam the © Fo Seda BX AMIS ATIE i ht ~ ’ Neate ' i
en aD po MEV LARGEALOSEDS. Phe Tots front weve
e arta pence ih t, xunbing decle
i a
t F pwh vetiers,: aod - obtarped
Tem be the) yehorus of tbe | eld Nab]:
relict | Ete & cagpe which was carticd ;on she |
Cand paiboali rs uf, biinself saad those withe bin
=
%
OT 89 PR . CRER « pposite bis pen,-
The | aber. cry lig. commenced. Witiy ‘ ‘ ard tre
CRORY gp i ch bas SyeTpowering foree OF |) Bowman's: Mise canes
ny since withir rife: ebat Could: ¢ r view Of Mee Bow
eft Of course, if the Federay,
ce be ener
CUES omy. nit
Bint teen saare of yheir” prex-
Ue entire regiment: would
, ft orettiiade dermant bridge: aud { 4 ae fut a
Soe ee tel Seite eS eee cir cla \ | wR arta jit mtnate tn the redwt UL eavie WL
‘ . Ph he oe i Paci, tot wasps tor g wire oh
Wigley oe (xpawen dy Ekiridte Seren puure.y | Ainese fae
: % ot wpewrral watce. #
ea! burning ane tbo obber
weet m
Ohi Be ED FETE,
ther, Sa.
‘ wi There® aceint
anil ‘open ber fuce 1 have Kadven her. Y é >
cohg : 9 a £t& OF A pe ae #
. a
; crass Sig rte was “married: a \ bail
ll cowd by Unk Freach i P hi the ete bie iBigs cer eg ike merracla, Bree at wariuel wa ae 4
a mea, ety men at prot flict oe Mra. Bowman snviked and dhewed. onan oak if; c
j oph mweniery er, 4 tines took a drink, ) ber » Far : tae, r beta: wd
aac Snee"t PP pie of R Ange to ever esteem bin. pot
ie foes for the ahd stand be assamied during.
Sngie 8 ceria political contest. but for sane’
{ bervie ree ie during: our late war, aleo’ for
ot aint | Ue Suet opright ead antcused decisios io
Mawe 12 winch tecently cane befiire aim.
Shinty | elwive ae indicnvent of Federal ¢8-
Bs 4 oe e i hy eee ee 3
Sark 24 The Judge thes ‘» spleblid apegeh
bey we} for piemat pall wy hoor, hemriiy thanking
i Use | ES Pesipi Of i Robesun fog the sani fom a.
Laaan eee Ot Mit Caters for bial .Oa die beca-
werk Bt i Pay gaa tt
Found. |. WES srry thal our Nimbtad space: will
tam | Oe Biull Cunber counnent vend is oh.
: ae” { chowicu | we will may thar Judge:tiong \bae
Ping hae earch for (he. citizens pf ¢ this avunty
; youd @heeltl be remeniiered by elf aeled
peosest batt wucking aod upright man io
b ery een, deter axdneef bo right, at
Pe) GM tanto A Le ert en Tite :
pies : ms eae .
; Five Mew Wien “2405 .
“eet LEENA Hvotieioas of this diye tle.
‘ te sagiviy velintiee ‘and _donneien ian, Ri,
pee Pies Viet Salisbury either Ooi feet
pol Peet ialaty wiser Hike mee ing OF bas fereriog::
A Bt caaned fis te Shieoming 7 At tae heiatd
(spew ja a weil knowo Citizen | OF, Rebsery,
atest rove during (he meeting of con!
Sy a Piaedtap yore pning bagina, Ere dif,
7 Atnedey chet metione of tte Aunt. Al bi igbhe
r analy ts notated Bove me io Shale ive
wy mrt, Wien Uae star Tig’ ect wen re
Oe vesied ‘font tte Be men back i ath abt y
co NA, orga ise hg fal nd a Rage of
bth 4 } Core tte (ant foot Suter) jail dees my af i
P ov fea tee Gee 3. Cheer hte, a
Set | Sp ies 38 SERINE Ht
€¥r, | A Bidapepet Diographer tying to" my {> as vere ti
1 Pre Penaisylyenin cca boy dey‘ he imeo
é
s
eet caincesioas tare rent)
as my olmervations ~ go,
Lecatment poee Bey
wed from the grotnd ale A
cbv-oyy Wak trotting iy igh fsa Ne Uae Be
astie! tui pa
ad
u
thie cay.
te«
w
beidy, Hee onal was notqhitecioa
brag het gc wire tightly, chenahed:
The iliswieig Ws an extract fr . = For: huat seutn y ;
Chas oak | ‘edd ste Vit lsjeproenet
Altent
tated
is fi ing. | bie wlgeen wee limedly Ore to hear 4
Se sper ie eae ce
' a “Wear.
shell tej see of ine wife.” “ed Bed el ech
pees
oN
&
be 14 W829)
Be,
yom tee vceren pt OF WR oma
* Repetat tot “Tue beeexrex)
{SFE RRNABORD, Dee. 14,
x) 5 oie being duly
Lad fetiows | My KuethantPe: bay
Se Danes Mex, * Bowmad,* abso% Mr,
Pek Rowimai” 4 tell fived ip her yard
ry Newle £By tigen! went rs
Fei sed yeats ace there and went to+ /
shesbtng: ot Mri Na.: Grave ‘ete here T went, to Dr. &
" Wate. At Mire. Bow an’s, J died) in the
Meo DT RReben: OE rusting &yictimes called
Of Abisyent Lwas
ott Curhag, | Living “tyree bmn garda trod "Dr,
Doves Nah S tr Leewonn came Tomy
Certhane kind
# Uvtonivg:
Neote
“New Berne | vhat che would ciré anybody. who would
‘ Lb pulses his wife Sodje cura ated oe bey sod | b
iow Metere | ay Ane seit Of éhoites. Joan
whethet by } i. i He caine hack, agulo oo bun-
Jane Sage ee + © wher, be we rere pO.
dala With there bo’ debe and £ "He bid a
0 ant fT hed Browa Hekler. Hered fie: wanted Jbhot
ad ee ie Mie f te vives ify Miss ‘Tharza, what) was
town) Dr; 7 ‘ AT sala ifJobh save ic tojher:
Ue logttshed |
6 To Abe
jet
arn
ip % + te KD ahah
irk before tbe 4 Vix Mc. Ke Pim al Jobn
; there War hate, wit
= Puc 1S AG his prckut before
1 Green we}: Cunt Came as cs 3
tenes Bax: SATE
ft Mire Bowsitn’s bonaha! we bad 3.
sity. Mr H terisbe! Jotin_ and ron
ces F rece aw Mr, reel af tris
4 PeEst there,
| wey dt bee ve! “too mineh |
trhers 35> a sad ee Could pot 1
j ve in any Feat Sor hiecwite > Proud
| Ne was great hand to! quarrel "woul
barrel wie him draok tor sober,
Pye comand tet Mra Bowmaa Shi Me
ee: vs. Becurw! T° was afraid
fi ackinghain Cory When
zy by fhe Cia 1 beard Bos an
Torte tel the ity thal you
re POL keow ok wwa.people that
dor vie te salt Ano vant of!
ome pray: bis wit
re acd eth Fi] iatt me
Polichi,*Priciay.) *
teat chasovered
shepat ¢ natglerr
SWUy Sapp
te arat a derkd
feused? caches oe
¥
i uever did. tl any-
inns eta, why ‘er, yeats: rasy,
: Rockinghaih seourt,
Move bes Bowinan- eft sour botse, Le
5 PU OS to ey: OrtBing Sabout ite 1 was
Nias °) straid of Mr Bowman. “Dir. Bowman and
ie Fike « ~-, Jobn nad a. dithedhty | because “some one
‘ i ints Winrie Wawa house, and Me
ts art veel Jobn-of doing to youl €:
donee 114 < (Rar Met mig Da Ould sects deer
by arate amet & Totows
‘ bie ieotigg | a benow folm ap 3 Set arr wité Lon:
jihad ti reppn ce [LWA ab thror homme hie, way morning
“ne mboctiise rit eet ¥pting ~ Foun aid trteand Mr Bows {7
Lage were 176. Mee Bawah told Jobn.
j ett weetiterT iar tee: diane, kpg.tiry) mene: sul?
jis went vib ecm
S You, tbink
Jt eta Bere: with mares
hae vk % tattle ain a pad iv te pens
tile wield Dead Li
vt. en cy tisiehy GS SAL ‘as cert a
toed twos woken (et
Oneanven ee Pelee ATOR RD
t } ie HevOr bat a
yy UT phe Covering tft ly
mink, waa als fin iw I Bock: in tls
le ie, Rete de i "Tt,
ern k dois 8 wag Le 4 my tAy
Peas tarroed there "bhai he ‘bw broke ia
Raves clea: daring | Mare Pols woums | Jost cagscover bere,
Site pete Hick | A nee Byers Wily MUS Foswelintc: Bowman
Fe ee huge ated Taek 39 Hawa Eton iene rw pute
Fate tes ew A wernt tolmero, stace 1
of wy never told any
Aaptat: 1 8 tg hehe merci dy
1 ei Troe WY oO Has tat Be detours
i Sremiet,
ed
Whos iwocle |
1 wid
iuqhie
the ground. “The ease | dodr
three teet> above the. groand. Phere’
cort crib: Soh east of: the house. | Thee:
siinse distance frour
evis. There. are no windows tmnt
side Df the house, ov -
dave hever been i the cellar. There are
hollow between them.) “Mr.
Kl ison inthe the piney
Prebe sv, bi
was picked yy
page
Lani eigen emt a
| Bowman? ®E Jived
thenr..: My father #8 mac
Hail Knot
Mary fane Div Rhat
about halfias- hour’ by |
morning Mre “Boman rhe! 6 » door
and saked Mary Jane* Dil) for thesnare
ed bollowing t_ber ae
ber hudhand, “Dea, Pau
poleon ing 1
bey Ua Bo glided
mung” pee
aries ee Pires
thar Mes. Bowman :
; Ag. Th
& a
E have oot i
| toldtorday? i
{ Martha Cole ithe fest Witness
thete ten minutes afer abe eanigy
sopie ‘thiwes 10 Mira. B
Dot koow
some five or ten : uakvinted
As the nurve’oft
paging t Hot SAY
e ibe pe she
AW ary wa
phen farher i
pea Weobe kek te toe miifhedic/t
wots: between Bowman's rae ae yt ia: se not
ee je rey
one Uf hee
My aps Ff
+]
od have Se
Satueraye Delorey bec, ddeaity 08° MJoday f
tre Black ‘Sask 4itu ben *} oY
yn me fs
Daven
therd’dethe Bunday ,
id Mishday wer oP had x
her's, TL went
fiat before 1 atartes
Sali pot gi Mr. sn pe
weirs Hi, pay piace be wernt
ip the preping
ute Heelan: oy an ‘
1d Be
Lila chat there: wa’
- iomeh =
Nook reba, ‘kbet gd > Biron ack,
as
f letters will ploase sf Advertised. *
phe Sat or at served in” private reps e
Of cooks are only employed, aod
¥ tovrauiend to ergs “beck
and ‘all?
band od Robins on cotint:
Red O#F ts the SOREN
sneer tatiana oy: explisi in the?
ete ens *B, Jurnmacty gett is
Sep. 19— 9th. aa
dihereuce to forms of ‘ceremony ; it
le aw @xquisite Observance ‘of the feeiings
of sede aie and (an ivvanable res for
: secs By this definition claims “iy
pierre: behevohner, and may some- (9) \
genuine epee
piory,
er ite.
| Meath Fn:
(Ps Peregoy,
we as Pronzas,
G
i ons, ‘Chetan; White Ft: Wit-
paints 4 i
g to Tretis, wis Annie? Deema, pe Anna M,
a Paria. ‘ere MK coF on, Mon anus,
Mose Prectie.
Rebeces ; ‘Kits, Mes, Jaca’
! ectarteg Ra: PN, 5 Lomas, Mra ara
ewe —Matates, Mra, Jeu tMc. foes args }
en am. Matyi Mong Lie Mea Be M
rail ‘Persons irvyaiting fur + aDy ofthe above!
SS DIO Fi OE
WHITE Neer Gontgrl $n tre tobruing of
the TR awe rence Rata Oe 1 4
Year of Def sine, i
PERnYatat9 ay uel tne eh”
inst, Mine eA. fenuv, tammct Doh eer ot aipa-
Ther
REAL ae
AE CONTRE OF TRE cnt
ace
i et:
43 Mentos. December 1 7. ‘ern ls. Seleck
fe od on he OT eeanbal Siew ates Gu
Lod Stress wlpeininy 400 Meohes dot, See tee
aren f OL Bh are Aber -—w italy | SEAL OF Khe Market
oa ated gig ti ib BeMEy oAbtnien part of
TE Nab):
onthe be ay Dela vt: Ate hee Seber
~ = ey ps a gs
met Toes f VER Me TW te,
Warcwetonns
intel
Female Coliege,
GREBNSHORO, NV. €.
» wh MON” Oe tse WS
1otm OF JANBARY.
or ite + Net fade ha 26 nape ry a WI wo epg es ym
" »
bee tte ins, Tirmient
‘i « Te ees.
‘ vies Boat (yebeed
“Tim aes: Clu. Hodges bak
italy
fecesa Consists ov merely ae
‘s “4
oF. fevers feanbing” fencialased ;
Robert, »
“15 —Bar tate. BW Be rene; Bat, W ashy! +
Se ee) ot ee ee i el
nip er ay Eta MerSet AboRA tO feet
— se ee
rea
aS Pe 3 White, hanged Ashboro, N
a
bt
Latie.
cf #8
phe detensed Dy | ;
Hill, mryetnins, werden
thing; as # seems Hn}
riot any Nhiect in aid
ghvtof biagem. Toe >
When. a.
fought for
pair of acing
best sou da
diwks at
Maye
PeRsoxs
ogived) ip tly
Jt00K > room
ard.
‘ Srutd
Satan Hat
ede Fang shipping theitt
in : Keay BCH,
13
| raf
best armen ‘ ess "
eR oh : :
a sbi RE ROE pen dl ns Pal aad
ee _? | =
6
sik ae the
oy a) fe ee?
Wietametod tems
j 5 nite?
ae nupdenn Heing
Hee Choe at BE,
veanly, WE
sot
PhAiun WWF >
rp HERE Near Ceneer: mke quomiog of
it, 19h Bepsn'! Le, 3 the 7304
Ot Bl tara gonahe
fam inel¢ fp day: Matai at Bolyyanigeyotil
ne
A apart 1S Ebi stork. Mr, tis ‘bint :
caine, Wig
Petia 3 ten? (HAL Sue back Suny evening, E :
Fo T tol CBne that!
lay, the ab
{* ree nt, 2 -
Wists Nat bald ocow rec edna oat
ex Mr, Bowman. bright a Taos" Seredoabra§ xt ral ‘
Bye sent there for Jobn t0 give to bis wile” -C : ined ty vee Mrs, a 1g Pennell ean ity :
ike side Th we % ‘ IPERRY<In Concord, ‘on There
’ ase : ea isd wane net gut year, of diph-
fe pigt beet then went on Hone, oP never tid te aN oe F
cba ic tient Pee ise abut it until eel fe :
LiGeptty sup posing,
& and placed ,
tne i ai ees i told yobody else cxeet ry tine, Buh ce
‘ Lkhew Mr Bowman was
REDIRECT
a3 tity
yesterday,
be trivd cat) the Tast Roekingham court’
When Mr. Rowman eft, our house, ta ce man.
okENS to, ay, bothigg pihout: ite eas A
vena aod ene Of spire. I peter} t
. VBtize Junetuaked | afta i .
Hee ae Bs
afraid of Me. Rowmah. >. Mr. Bot
Jobe had a dithenlty.: because «source, one rs
droke into Winnie Watt's house, and: ™ gate a moa of i f
sieve bottle sat Oe CENTRE. of THE OY.
iy a.
Beaver aectised Jobn af doing it
ah at McCain-befag di ay sworn, deposes
Gigprsed OF roa: Ap wilt Wel! at |
seats $n Tite On,
ah My sTones, Dp. (aia
Moby dtibie, ancl] BF
prety Heng stout E know Jobs Rts bo bo et
‘wrohGa Th Required 1 wai at their poe Sa ete MBS ‘Elizabeth Dif Ny.
dee oneivertinegne nt) lust epting, ¢ Jolin and and Mr. Bowes} seeps a» follows £ eects té ‘ ; make
a roan were there. MecBowmad told Johd : Vkaew Mes “Bow umn. belord E tM dire, Paes ij saver:
rae © \ bho wanted to see kim, and they’ went oat, siaboou tine tn net preg geen ad to hue a :
At, S50, Tee: L went off cauie back’) that /évening opts, & : Hyaae chef is. . ‘ ‘ he
Spa lieaatnilershnh f Lea and childrens wert Ferg edt Tae Ii i rash a sulin wm ica December i, TTT a L2e'cor: é
Mrally rewurtied Ht, ae Dy Mr. How Was” there ; " ‘ 100 a. wh { i iehaine. lod Ere ici’ Lrenite: Dtaated Ho Wilming-
oe that morning. Jobo ose You thiak | ? bv oefore Men oath ‘ i } . er ara Si adjoining tnesaraacs demrgotety ie
2 tpey v, a = . i re ht ye “
VON R Reo br sbat-man Nee ie ae od awit aa ton Monday moran. -) 1 hal gone to thy oi fle hat cane. ty nese Bone to the Beas usiness Mace ot cone
s'Gooper, pihipg in a basin A: srinel gre 1) Doegs brotiyrs Dent there one ay sister ot “tured the *decond the (RY Re tea harnce Mera 100 t
cht : i was sick. . Just before F started “Me. and ceutyihe the -bottle .with. pes Haba, Wilrarustins Barer Atm (ee ie
vex “Exch. said, “don't you say wryhing about thie” ) ates Haining Ya yet were! bd soon ab be Cound ws surycboipe, z scope pete ry bees Brest
& rs _Bowmait ie a ae ft.
: pend? seo not.
i} House.
Hyeould not co) Mr. Bowmatr sid af, be |”
were im my place be would fn bis, j
oY (iy
ov Broentamed this be aed
Fin Oncnren, 7
Dees Th 3847, fie
rv Cot positively. L. wis opty lect the areging: «et
tibthis®
Lee ght oeketainarn court Louse, AN
pees itt
seer
Doria. anh after,
We docket were is. t
Bae ein! docket wat (Tl
oe HE 10¢h OF JANUARY.
Po Aia Aeetiontionn of: bis superior avantagen On
one. A
| sre ter
or In vad i tara, yta
sede eke. Predistent,
PmbN
him carri iba he bad broke in | sage
ae cased ‘Ore al Sorted Maré Phil's bot. [just cane over be
allroad suits removed | F have lived. with Dir, Bownian, Bow
Mecklenburg. said and d had no fuss. | / I don't know: The
vt Gompasy vs, J-S.} dit have s fuss a ane ies oA ince 4
an af by the Rail: you renind ane pf “it. never ¥= beth + f 4 " Me
of Se afaiees 1 tody about this gotll this morning Ido} * a eri gee re)
F I nog know how it got our that L beet any; c in at Pas “Pres, prac A miietees,
‘ ~
eat FrORAE COLLE G iB
_ aor. Sale.
Prhing about Bis uratter. os
Sym Sominers beings duly Speordts
Zz
i. { Wil
fet reduced “the, deposes as follows ¢ 1 knew Mra Bow-}- know it
ttiea tor twenty five years. sD was at ther “pake soy ow eu Es
'f hands and, drink it fs hi nak ‘ e Th Bad > wax 0 Themes
ci é EroRens | Be ¥ AND uspke AC} HOWITY SESTED LN
(Hsae Repelvers, spjpoint: it hy the Superior
Kates), bt tte case bt
19 Si. The Court 5
ourrot-the county
pab-
Saw ihe corpse, I saw the grave | saa
ie §
o ay half the Gusta, tal
3 appealed. } alts rwanls opened: Saw the coflin:opence
H. Sunner va OC. 7 Ta see the wae ere Mt setood. at
wfinapy, Was An actig on} fires Sie was teuried the 2d-dt May. er it: Me attae tu ext
the value of ‘a jot of} Cie 8 REAMINA TION.” #1 wood,” She was.at the chicken coop. whe! | miy) aly. 24 werties Py recta een uretcante ots
on alleged by. negti ‘ exbing peculiar 4a The af Fomadt She Se canoe But Teel weil/'}) - nobepont. stave of Noein Sarg, tra, om the i
Lear yen se'whet the fis 8) faint me and , Bk Shera sme oc ee aoe ‘7h of Janaary, <Moulay) A.D. 1878,
‘i was dying. ‘He took bold of es anon ‘Hfteed Gays befire the, For Cash. |
J Ba it Was sbom the middieof the 4] ie vataante property Whinwn w FLORAL €u¢ :
LEGE, sovsisting ef ‘auont Yen Agres of Land.
: act an” p
w Quart of coro whisey 5 pai
‘gato aig Scie swan 0 i ;
Teese a may the
2 Parison ot >
ed to-Howman 15$r- 26 years,
BIW. Hancock “being tots sworn ‘des§ aban nes
pie yen at pes ws as (ltows: 1, mare these piats be-
Soh the trial ne ot } fore the court. oF tide an. accurate! gar
P peereyy to Order-t0o ) Lam counts /sarveyor’ of Rocking=
Sumner who was on. tonoty., Bowman's house is 13 by?
ip behalf of the plain. jo) 444-; kiteben ‘about 14 by A687" the
ly asked the witness if} 45, from the houseis 114 yards. ‘From
ne be oe eae Gorcana sp Cole's i 850 oF 400
rid witness. answered annot see from Bowman's house tG | y,
can see from Bowman's te
acsog's.. Miss Martha showed ‘me
ere she saw Bowman pick up, the bot
inued the enroe!, swith | wets Mi cea tereainie: Sis la tas ‘
tat Rod DarES ae pan (The Bottle was jin the’ edge of, the [
; is ta:
eter atficies, making 3 een 2 USE ;
Meee de oe A ste ward's Hal. ‘og
W. F. PRBNCH, . é Le
MS EEL aA Se pee
rod
5. ‘
oBitd Williamson bia a wife,
Leng positively that this womad. >
x saiie Yeu Ted x Sigs :
Stacks Prae Riv Cote:
so Bales Tiootny Has. : - :
‘Vise Banners Spring anit Winter | fe é
iy 96 Hrushoik Stock Pease, By
Se 5S 200 nets N.C. Bane Boer.
Break fact A hace CR. de. we.
a ; bar ne | an ace from the.
* Io sacks ia,some 200 yAre
s coroner in'( bie cxse, cd was p
body wae disutet red
Af Mavi The body
‘arty took possesion,
E"This, happy re
2 house. j
Bao ail ahs othe Gacket :
The matior docket was. eo 2
ind tbs “afternooa the | mack inti the gt and “covered” apZ
2 powas agaid Visinlerted ob 24th of, Joly. 7 ite *
isi aoedis oh Ser te Mey i oe Abi ; He
™ be eed! Nec up. Dr: Scales and. Prof Redd so dts ing tk ' Surens =A
| were present at the second disipterment ; Shanes ii the bool Peep Reales mae ty ege
oP rbe ~ aalrtet teceived, ant
ime to digest the Judge's
1 the Grand Jury, acd to} they tuk out sone parts of the body.
ekg er
bed p pleased. witls, theme. « Apert S.
; ‘ie your attentfoe.” de
beat 54 enti her hoor
: CROSS RIAMIER BP.
Noi natice wus yiven to Bowman or bi
yn and thechitele dud a} cranet about dhaioterring the peed: ot Some MCE 4
The bey received the fol. | Mre Bowman the seovnd time. I was in- rud tah ybe” Iya and | Het): ih RENN Wincuaper nares:
ome D, Shaw, Fag, of | formed by a note 6 say nothing about it On a er w Dime DOS, | iy accepted Hie agency’ far the male
BC gets Gen BE Wie f Bas econ se er 0 éith abuut spdout : whe | F / “ar 1
wnming, bs)., at tug © nahe saw Howmed the 2 Bets : 7 f
PT eanrcdinly wat am we sree ncoay "Sear Cg
“<2 the aus
({Satifocnla Pears ard Malaga te rapes.
yRestt Lainona aut BLONIDA ORANGES
souliy Coming fo. One + nit to bare cine i
oot been very
siiced Smoked Bout aud Godtinh:
nbenere bad in she: market | Crntiet you
sien uf “cery fie ection, | te In exerting abet Folateces # the peo:
ert cte on Had there | pl oe egaing the de
mote to. be picked of é
sins seed hee Tia real Rad
‘ounwl "Have you pot been very Celtdine : 4 Tunottay and Lert tivain Seed
ays Barts Bose irish Putaioes,
A ya daw nor
tos, oye people will por
Sat there te mace money | ter ia yoor braesution sad. yerectae
oe
dG wney persone trom
ih family grocery more yea?” a!
epi. enatccners, “therizii. Whuese TE don't thisk pulls Redrap eth ;
ae srabier ine peleares | Counsel e-? mare eer pre . : Fivhin Farle cdox init
z qent poners counts) thal’ yaK ae. : J anteed. (5
usually gonedh Api | Oi ot Beary, Binal it Yfnted Mom hiasony Be etnaren. Hotwae cA 465 5 fount
bee feb ss ; mes ae : hit = 900
3 ; CRACK ERS-
i. aveovatd Akioct Mielait
1 See tata Orecichh lt, packages,
oA Wiaenily, Rates Sota ad Wok Checkers
ted Hotoidl « ake,
urn Biber Orac sare.
4 Maceo)
weerren ‘osu OFWTRA URAC Rae.
dod teat
_t
pooh wwe are’ prastiag on Witness et ta bien asin Fide .
Abd Uae suai! boy-cami! oe’y special corener, ¥ swoppse 1 bad! weak!
“td RO ne cwithenit | potking to do with JE when. L-wioke my ré-
wv . Hhenegta dL sind a fem my-duty to | 3
ot hear :
‘erwnagl--< Du; fom on pod woe acted
= weet wich sie Sight katy met ivrho
eae: “y think ok.”
IN THE SUPREME COURT. [78
STATE Vv. BOWMAN.
Smiru, C. J. The prisoner is charged with the crime of murder in
administering poison to his wife, and upon the trial was found guilty.
Judgment of death was pronounced, from which he appealed to this
Court.
The case presented for our review contains a full and minute account
of-the trial, the evidence adduced for the State, the exceptions taken
for the prisoner, and the rulings of the court during its progress.
(510) The prisoner offered no evidence. The exceptions are numerous
and were elaborately argued upon the hearing before us by the
Attorney-General and the counsel for the prisoner, and their researches
and citation of authorities would have greatly lessened our labors had
we been called on to investigate the various questions discussed. But we
are relieved of the necessity of doing this by the view which we take of
the case.
Many witnesses were examined and testified to the circumstances at-
tending the death of the deceased, the symptoms developed during the
last moments of life and immediately after its extinction, the declaration
of the deceased that she was poisoned, the two disinterments and exam-
inations of the body, the discovery of strychnine in some of the internal
organs in a chemical analysis of their contents made by Professor Redd,
a witness in the cause, the tests resorted to by him to ascertain and prove
the nature and efficacy of the poison, and other facts relied on to estab-
lish the prisoner’s guilt. Three physicians were present during the trial
and heard the evidence and were examined as experts. The same ques-
tions were propounded to each, the same objections interposed by prison-
er’s counsel and overruled, and substantially the ‘same testimony given
by all, and it is therefore only necessary to consider the exception to tlie
evidence of one of them.
Dr. R. H. Gregory, introduced as an expert, testified as follows: “!
have practiced medicine twenty years, actively employed. I have heard
the evidence of Mrs. Bowman’s death. I have heard the symptoms de-
scribed by the witnesses, and I have heard the examination of Professor
Redd, as to his finding strychnine in the body, and I am prepared to
give an opinion as to the cause of her death.”
On the part of the State the following questions were then pro-
pounded, which, with the answers, were objected to by the prisoner, but
allowed by the court:
(511) 1. “Have you heard the statements of the witnesses as to the cir-
cumstances immediately preceding her being taken sick, the ap-
pearance of the body immediately after death, its appearance subse-
. quent and before interment, the condition of her limbs and members, the
account given by the accused of her manner of death, her asking to have
342
N. C.] JANUARY TERM, 1878.
STATE v. BOWMAN.
her feet uncrossed, and the manner in which she gripped him and her
child, and have you heard the testimony of Mr. Redd as to his analysis
and its results, and from them can you as a physician form an opinion
as to the cause of her death?’ The witness answered, “Yes.”
2. “In giving answer, do you exclude from your consideration the evi-
dence of other circumstances in the nature of moral evidence jn the
case?’ The witness answered, “I do.”
3. “What in your opinion was the cause of her death?’ The witness
answered, “I believe it was strychnine.”
The prisoner excepts to this course of examination and to the action
of the court in permitting the opinion of the witness to be given to the
jury. The correctness of this ruling is presented for our review, and
after a careful and deliberate consideration we have come to the con-
clusion that the evidence ought not to have been received.
The opinions of those who are skilled in any department of art or
science, resting upon undisputed facts and within the scope of their
special calling, are not only competent to be heard by the jury, but often
greatly assist in the formation of a correct judgment upon matters they
are called on to investigate. The superior knowledge of the expert is
frequently required in the conduct of judicial examination of subjects
beyond the reach of common observation. But this evidence has its re-
strictions, and must never be allowed to invade the rightful and ex-*
clusive province of the jury in drawing their own conclusions from the
testimony of the credibility of which they alone must judge. It is
their duty to hear and pass upon the evidence, and the expert’s
opinion is admitted only to aid in performing that duty. It is (512)
obviously improper for any one, expert or nonexpert, to express
an opinion, warranted only by assuming the truthfulness and accuracy
of what witnesses have testified. Such evidence is competent only when
founded on facts within the personal knowledge and observation of the
expert, or upon the hypothesis of the finding of the jury. The testimony
given against the prisoner in.support of the charge contained in the in-
dictment was not admitted to be true, and the presiding judge begins his
charge to the jury by reminding them “that the death of the deceased is
alout the only fact conceded in the case.”
It is true that trials have occurred where the defense of insanity was
relied on, and medical men have been permitted to express an absolute
opinion, resting entirely upon testimony there given in, and it was in
consequence of the acquittal of David McNaughton, charged with the
murder of one Drummond, in an English Criminal Court in the year
1843, that public attention was directed to the subject, and \the opin-
ions of the judges obtained in answer to an inquiry of the House of
242
IN THE SUPREME COURT. . [SO
STATE v. BOWMAN.
(432)
*STATE vy. THOMAS P. BOWMAN.
Judge’s Charge—Jury—Evidence—Post-mortem Examina-
tion—Ridings of Judges.
1. It is not error in a Judge, after giving an instruction asked by the
prisoner on a trial for murder, that he was entitled to an acquit-
tal unless the State proved him guilty beyond a reasonable doubt,
to superadd thereto that when a wilful killing was proved the
law presumed malice, and the burden of showing mitigating cir-
ctunstances was thrown on the prisoner.
Nor is it error where the Court refused to charge that in case
one of the jury had a doubt as to the guilt of the prisoner the
other jurors should yield to him.
38. The prayer was, that every link in the chain of circumstantial evi-
bo
dence must be as satisfactorily proved as the main fact of the _
murder; and the Judge in reply said that in a case in which the
jury are asked to convict on circumstantial evidence they must
be fully satisfied of every link in the chain: Held to be a sub-
stantial compliance with the prayer.
4, The jury are the sole judges of the weight of testimony.
5. A juror who stated on his voir dire that he had conscientious
scruples against capital punishment is incompetent.
6. Where declarations were offered as evidence on a trial for murder
as having been made in prisoner’s presence and not contradicted
by him, it was held to be properly left to the jury to determine
whether they were made in his hearing, whether he understood
them, what his conduct was on the occasion, and to say what
value should be attached to these circumstances as tending to
prove the prisoner’s guilt.
LA post-mortem examination of the body. of a deceased person
alleged to have been poisoned, and a chemical analysis of organs
and tissues taken therefrom, may be had without the presence of
the prisoner or his counsel.
8. The provision of the Constitution, that no Judge shall hold the
courts in the same district oftener than once in four years, has
reference to the ridings of the nine districts under the new
apportionment.
=|
(State v. Johnson, 48 N. C., 266; 8. v. Willis, 63 N. C., 26; S. v. Per-
kins, 10 N. C., 877, cited and approved).
(433) Inpicrment for murder, removed from Guilford
and tried at Fall Term, 1878, of Ranportrn, before
Kerr, J.
*DILLARD, J., having been of counsel, did not sit on the hearing of t!
394
N.C.] JANUARY TERM, 1879.
STATE v. Bow Man.
The prisoner was charged with killing his wife by admin-
istering poison. The evidence in support of the charge was
circumstantial, and only that part as was deemed material
to the exceptions taken is incorporated in the statement of the
case sent to this Court; and that which is deemed sufficient
to an understanding of the opinion is’as follows: Martha
Cole, a witness for the State, testified in the course of her
examination that about two hours after the death of Mrs,
Bowman she went around the prisoner’s dwelling towards
the kitchen, which was situated about. twelve yards from
the dwelling, and was about seventeen by fourteen feet jn size
with a north door and a south door. The witness on going
into the kitchen at the north door saw prisoner sitting on a
bench at the east end of the kitchen, just twelve feet from
the south door, The prisoner’s and deceased’s little daughter,
Eliza Jane Bowman, was sitting in the south door, and a
servant was putting on her shoes. Just as the witness went
into the kitchen, having the instant before scen prisoner sit-
ting on the bench as above stated, one of the women present
said, “I’d like to know what Mrs. Bowman did say when she
Was dying” ; and thereupon the little girl turned around, put
both hands on the floor, looked up, and said: “TI ean tell
you what she said. Mama told papa when she was dying
that she was poisoned, and she got her dose in that drink of
liquor he gave her this morning; and that was the last word
mama said.” The prisoner then came and took the child
up in his arms, smiled, carried her off, and kept her with
him in his immediate presence while the company remained
at the house. The witness further stated that she knew the
prisoner was in hearmg when these declarations were made.
The exception to this testimony was overruled, and in the
charge to the jury in respect thereto, his Honor said
that 1t was admissible, not as in itself of any weight (434)
against the prisoner, but as calculated, should the jury
believe he heard and understood what his little daughter then
said, to call forth from him some response in words, or some
action, which response and which action are alone to go to the
Jury and to be considered by them in making up their ver-
dict.” The Court further charged that it was for the \jury to
395
IN THE SUPREME COURT. [78
STATE v. BOWMAN.
Lords, which may be regarded as a definite and final settlement of the
law. One of the questions submitted to the judges was in these words:
“Can a medical man conversant with the disease of insanity, who never
saw the prisoner previous to the trial, but who was present during -the
whole trial and the examination of all the witnesses, be asked his opinion
as to the state of the prisoner’s mind at the time of the commission of
the alleged crime; or his opinion whether the prisoner was conscious, at
the time of doing the act, that he was acting contrary to law; or whether
he was acting under any and what delusion at the time?”
To this question Chief Justice Tindall on behalf of the judges replied:
“We think the medical man under the circumstances supposed cannot
in strictness be asked his opinion in the terms above stated, be-
(513) cause each of those questions involves the determination of the
truth of the facts deposed to, which it is for the jury to decide,
and the questions are not mere questions upon the matter of science, in
which case such evidence is admissible. But where the facts are admit-
ted or not disputed, and the question becomes substantially one of
science only, it may be convenient to allow the question to be put in that
general form, though the same cannot be insisted on as a matter of
right.” Regina v. Higginson, 47 E. C. L., 129, note a.
The proper mode of examination of experts is thus declared by Chief
Justice Shaw: “Where the medical or other professional witnesses have
attended the whole trial and heard the testimony of the other witnesses
as to the facts and circumstances of the case, they are not to judge of
the credit of the witnesses, or of the truth of the facts testified to by
others. It is for the jury to decide whether such facts are satisfactorily
proved, and the proper question to be put to the professional witness
is this, If the symptoms and indications testified to by the other
witnesses are proved, and if the jury are satisfied of the truth of them,
whether, in his opinion, the party was insane, and what was the nature
and character of that insanity, what state of mind did they indicate, and
what he would expect to be the conduct of such person in any supposed
circumstances.” Commonwealth v. Rogers, 7 Mere. (Mass.), 500.
The same learned judge in another case before him uses this lan-
guage: “We think the question put to Dr. Williams, as an expert, asking
his opinion whether, having heard the evidence, he was or was not of
the opinion that the testator was of sound mind, was not admissible in
that form,” and that the proper way to interrogate the expert is, “Jf
certain facts assumed by the question to be estublished by the evidence
should be found true by the jury, what would be his opinion upon the
facts thus found true, on the question of soundness of mind.”
(514) Woodbury v. Obear, 7 Gray (Mass.), 467.
N. ©] JANUARY TERM, 1878.:
STATE v. BOWMAN.
Mr, Justice Curtis thus lays down the rule: “It is not the province
of an expert to draw inferences of fact from the evidence, but simply
to declare his opinion upon a known or hypothetical state of facts.”
United States v. McGlue, 1 Curtis, 1. To the like effect is Heald v.
Thing, 45 Maine, 392; and the elementary writers generally coneur
in this view of the law. 1 Gr. Ev., sec. 440; Redfield Wills, 40;
1 Whar. Ey., sec. 452; Whar. Cr. Law, sec. 50f.
It is unnecessary to pursue the discussion further, or to cite addi-
tional authorities in support of a rule resting upon sound reason, and
commending itself to our entire approval. Although the cases referred
to involved an inquiry into the state of mind of the party, and to de-
termine his capacity to do a testamentary act, or his responsibility for
an alleged criminal act, the principle is equally applicable to medical
opinions as to the physical effects of poisonous substances introduced
into the human system, and the indications of their presence.
The rule was, in our opinion, violated in permitting Dr. Gregory: to
give to the jury his opinion of the cause of death of the deceased, with-
out those salutary restrictions which this kind of evidence requires. It
is not for us to attempt to measure or to speculate upon the influence
which the opinion of an intelligent physician, formed upon the very tes-
timony which the jury had heard, may have exercised over their minds
in conducting them to their verdict. It is sufficient that it was calculated
to have an effect and to mislead. The death of the deceased from poison
was an essential element in the crime charged against the prisoner, and
necessary to be proved in order to his conviction. It could be proved
only by legal and competent evidence. The opinion expressed by Dr.
Gregory, in the form in which it was allowed to be given, was not com-
petent, and entitles the prisoner to another trial, in which he will
have the protection of all those safeguards which the wisdom and (515)
humanity of the law provide for all who are put in. peril.
Per Curran. rae Venire de novo.
Cited: S. v. Bowman, 80 N. C., 482; 8. v. Cole, 94 N. C., 965; 8.2.
Potts, 100 N. C., 462; S. v. Keene, ib., 511; Moffitt v. Asheville, 103
N. C., 261; 3. v. Wilcox, 182 N.. C., 1134; Summerlin v. R. R., 133
N. C., 554, 556; Jones v. Warehouse Co., 137 N. C., 349; Beard v.
hk. R., 143 N. C., 189; Parrish v. R. R., 146 N. C., 128; S. v. Khoury,
149 N. C., 457; S. v. Banner, ib., 524; Pigford v. R. R., 160 N. C., 103;
Mule Co. v. R. R., ib., 255.
IN THE SUPREME COURT. [80
STATE v. Bowman.
arene ee
say, from all the evidence in the case, whether the declara-
tions of the little girl were made in the hearing of the pris-
oner, and how far his action tended to prove his guilt.
Professor Redd, an expert in chemistry, was introduced
by the State, and testified that he went to Réidsville on 24
July, 1877, on his way to disinter the body of the dec sased,
and to take therefrom the tissues and organs for chemical
analysis; that he declined to proceed until the prisoner’s
counsel were notified ; upon notice given, three gentlemen of
the bar of counsel for prisoner went with the witness and
saw the organs, ete., actually taken from the body of the
deceased, and the means the Witness used to preserve and
transport them to the State University at Chapel Hill where
the analysis was made; that he informed said counsel of his
intention to make a chemical analysis of said organs, and
would have admitted an expert or agent of the prisoner to
be present had the prisoner or his counsel requested it.
When the witness was about to give the result of the analysis,
the prisoner’s counsel objected on the ground it had been
made without notice to the prisoner or his counsel, and was
therefore ex-parte and inadmissible. The objection was
overruled, and the witness stated that the analysis disclosed
the presence of strychnia in the said organs and tissues.
The facts applicable to the other exceptions are stated in
the opinion. Verdict of guilty; judgment ; appeal by pris-
oner. See same case, 78 N. C., 509.
(435) Attorney-General and Boyd & Reid for the State.
Reid & Glenn for the prisoner.
Asner, J. The record and statement of the case are quite
voluminous, but it is only necessary to notice so much thereof
as is pertinent to the instructions praycd for and the excep-
tions taken by the prisoner.
First, as to the special instructions asked :
1. “That the burden of proof was on the State, and that
the State must prove the prisoner to be guilty to the satis-
faction of the jury beyond a reasonable doubt, or else the
prisoner was entitled to an acquittal.” This was given, and
896
N. C.J JANUARY TERM, 1879.
STATE v. Bowman.
his Honor committed no error in superadding thereto, “that
when the act of killing a human being wilfully is fully
proved, the law presumes the killing to have been done with
malice aforethought, and the burden of proving mitigating
and justifying circumstances is thrown on the party who
claims the benefit of these circumstances.” State v. Johnson,
48 N. C., 266; State v. Willis, 63 N. C., 26; Foster, 255.
2. “That the law requires them to be unanimous in their
verdict, and in case one of the jury had doubts as to the
guilt of the prisoner, it was the duty of the other jurors to
Yield their convictions and give the prisoner the benefit of
the doubt existing in the mind of the juror? His Honor
did not give this instruction, and there was no error jn his
refusal, for it is an extraordinary proposition that cleven
jurors who are satisfied beyond a reasonable doubt of the
guilt of a prisoner should yield their convictions to the
doubt, the mere doubt, of one of their number; or, in other
words, that one juror who might have or profess to have a
doubt should control his eleven fellows. If that were the
law, it would be found difficult to convict of a capital offense,
3. “That every link in the chain of circumstantial. evi-
dence must be as satisfactorily proved to the jury as
the main fact of the murder itself.” His Honor did (436)
not give the instruction in so many words, but the
charge he did give was a substantial compliance with the
prayer of prisoner, to-wit, “that in a ease in which a jury: are
asked to convict on circumstantial evidence, they must be
fully satisfied of every link in the chain of evidence upon
which the State relies for conviction.”
4. “That the testimony of Professor Redd as to his ex-
pute analysis was entitled to but little weight.” In response
thereto, his Honor told the jury that they were the sole
judges of the weight of testimony, and in this there was
no error,
Second, as to the exceptions taken:
1. In the formation of the jury: A juror was called who
stated that he had conscientious scruples against capital pun-
ishment, and that it would hurt and do violence to his con-
science to render a verdict of guilty; but if the evidehce sat-
397
ae
a Yi
SCUSCL SE
pe eee
a pillow; they were on the ground and his
head lying on them. There was one tobacco
truck near. The little tobacco sack that he
carried his money in was on the bench where
he slept, about six feet from where my
father was lying. The bench was made of
some long planks and his feet kinda under
the end of the bench. It was about 6:00
o'clock on Thursday morning when we
found him. Clarence Bracy, alias David
Jiggetts, had been working for my father
from Monday afternoon of one week until
Wednesday night of the next week, the
night my father was struck. * * * I
had opportunity to observe Clarence Bracy,
alias David Jiggetts when I fed him at the
table and while he was working on. the
farm. I would say he had the mental ca-
pacity of the average colored man. He
acted like other colored people. He was
polite and mannerable in every way. Of
course I did not ever talk to him more
than was necessary with any colored people
that worked there. Tobe Henderson has
worked at home off and on, not regularly,
for the last ten ‘years. His general reputa-
tion in the community where he lives is
good.”
O. G. Williamson testified, in part: “I
am the son of W. H. Williamson. I am
married and live about a half mile from my
father’s home. * * * JI know that my
_ father carried his money in a little sack
with some red letters on it; I gave it to
him. The sack which you have handed me
is the one he carried. I did not know my
father had been stricken until Tobe Hen-
derson came down to Iet me know around
6:00 o’clock Thursday morning. I then
got in my automobile and went up to the
barn where he was and brought him to the
hospital. I did not particularly notice the
ground around him for I was after getting
him up as quickly as I could and getting
him to the hospital. He was unconscious
at the time and never regained conscious-
ness. I was present while the doctors were
examining him until they prepared his head
for the operation. He was injured over
the right ear; his skull seemed to be
crushed for 344 or 4 inches on' the right
side, and when Dr. Bass was ready to sew
it up he ran his finger down :to find. out
whether his skull was crushed and I was
standing there looking. They then told me
I could not stay any longer. I did not
know Clarence Bracy, alias David Jiggetts,
before this happened but I had seen. him
working for my father.- I had been in
fifteen yards of him but had not spoken to
1 SOUTH EASTERN REPORTER, 2d SERIES
hima. He started working there on Monday
of one week and worked until Wednesday
of the next week, the Wednesday that
my father was stricken that night. I next
saw Bracy in Raleigh on Tuesday, two
weeks ago when I talked with him some.
He said he knew me and I asked him what
he did with the pocketbook the old fellow
had, and he said he did not have a pocket-~
book, that he had a little tobacco sack. I
asked him what he did with it and he said
he left it by the tobacco bench. I asked
him did he know who I was and he said he
did, and told me I rode a horse up to my
father’s one day and he recognized me. I
went back and found the tobacco bag where
he said it was. Clarence Bracy claimed he
had all the money he got out of the sack
that he took from my father; said he got
the amount of money out of the bag that
the officers got off of him. He said that he,
himself, hit my father with a wagon stand-
ard while he was lying on the bench asleep;
said he hit him to get the money. Mr. H.
M. Lewis, Mr. J. W. Keeter, Charlie How-
ell and Thomas L. Williamson were pres-
ent when this conversation took place.”
J. W. Keeter testified, in part: “I live
near Townsville, about 3 or 314 miles from
the late W. H. Williamson. I have known
Clarence Bracy, alias David Jiggetts, since
1927. He worked for me in the years 1927
and 1928. I went to Raleigh with Mr.
Lewis and some of the boys and talked to
him in the Raleigh jail, in the office. The
jailor brought him in the office and that is
where I had the conversation with him.
* * * JT did not make any suggestion of
any benefit that would accrue by way of
making the statement. Mr. Lewis, the
jailor and his wife, the two Williamson
boys and Charlie Howell were present
when the conversation took place. Continu-
ing the conversation I said to him, ‘Who
was with you the night you murdered Mr.
Williamson?’ He said, ‘Nobody’. I said,
‘Davy, who was the man on the road in
the automobile waiting to take you away;
did he help you?’ He said, ‘No, sir’. I
said, ‘Did not Robert Henderson help you?’
He said, ‘Ile was not there’. I said, ‘Where
was he?’ He said, ‘I did not see him after
he ate supper.’ I asked when he saw Rob-
ert and he said he did not sce him any
more until after he come to Raleigh. I
said, ‘Davy, I can hardly believe you mur-
dered Mr. Williamson alone, I think you
had some help.’ He said, ‘No, sir, I did it
myself.’ I then said, ‘What tool did you
use to murder him with, I understand there
STATE vy. BRACY NG. 893
1 S.E.2d 891
was a axe close by the wagon standard.’
He said, ‘I used the wagon standard.’ I
said, ‘Go-ahead and tell how it happened.’
He said, ‘I laid down under the shed and
went to sleep and woke up, could not tell
the time, and looked around and Mr. Wil-
liamson was lying out on a frame he had
up on some trestle benches; Mr. William-
son was lying on that table and I got up
and went out there and looked at him and
he was asleep’, and he seemed to stop talk-
ing then and I said, ‘Go ahead and tell the
truth, the whole story.’ He said, ‘Then I
went back to the shed and got a wagon
standard and hit him.’ I asked him if he
hit him with one or both hands and he said,
‘LT hit him with both hands.’ I said, ‘You
murdered him and robbed him,’ and he said
‘Yes, sir’. I said, ‘You did it by yourself’,
and he said, ‘Yes, sir.’ During the conver-
sation I asked him the same question seve‘!
or eight times and when I finished up Ma.
Lewis said, ‘That is sufficient, let us go.’ I
said ‘Let me ask you this one question—
Davy, my understanding is that you mur-
dered Mr. Williamson and then robbed him
by yourself and did not have any help, is
that what you told me?’ He said, ‘Yes,
sir. In the conversation I-asked him wha:
kind of pocketbook Mr. Williamson had
the night he murdered him and he said, ‘He
did not have any pocketbook, he had a little
smoking tobacco sack with his money in it.’
I said, ‘How much money did you get off
of Mr. Williamson?’ He said ‘$3.20’. I
said, ‘If you had known you were not going
to get but $3.20 would you have killed him?’
He said ‘No, sir’. I said, ‘How much
money did you expect to get off of Mr.
Williamson?’ He said, ‘I thought sure I
would get $15.00 or $20.00. * * * I
saw him (Clarence Brady, alias David Jig-
getts) practically every day for three years.
I had not seen him since 1931 until I saw
him in Raleigh. From my observation of
him up uatil the end of 1931, and from the
conversation I had with him in Raleigh, I
think he has the mental capacity of the
average colored man. I have known
Tobe Henderson for. six or seven years.
His gencral reputation in the community
where he lives is good.” There was other
evidence to the same effect.
Sheriff J. E.. Hamlett testified, in part:
“From my conversation with him I think
he has a very low mentality and in my
opinion something like a ten or twelve year
old boy. In my opinion the defendant has
sufficient mind to know right from wrong.”
Mack Hargrove testified, in part: “Mr.
Williamson had the habit of sleeping on a
bench at the barn when curing tobacco,
The wagon standard was about twelve feet
from where he slept. The first time I saw
the standard there was on the Monday
night before Mr. Williamson was hurt. I
was at home on Wednesday night. The
wagon standard is made of dogwood.
* * * The last time I was at the barn
before Mr. Williamson was struck was
about day on Wednesday morning and a
wagon standard like the one here was there
at that time.”
Charlie Howell testified, in part: “Mr.
W. H. Williamson was my father-in-law.
I went to the tobacco barn about 6:00
o’clock on the morning after Mr. William-
son was struck. The wagon standard was
lying as close to Mr. Williamson as that
table—about five feet. Mr. Cottrell picked
up the wagon standard and examined it
and someone brought it to Henderson to
see if they could get some. fingerprints.
* * * JT examined the wagon standard
very closely that morning and I know the
one here is the same one that was there
that morning.”
W. B. White testified, in part: “I have
known Clarence Bracy or David Jiggetts
some ten or twelve years and have seen
him constantly during that time, some two
or three times a week. He is twenty-three
or twenty-four years old. I have had op-
portunity to observe him during these
years and in my opinion he has the mental
capacity of the average colored boy. He
would trade at my store sometimes once a
week on Saturday and sometimes during
the week. He would pay for what he got
and knew change when I gave it to him.”
Dr. H.-H. Bass (admitted to be a medi-
cal expert) testified, in part: “He was
struck on the right side of his head and
had a laceration on his head about four
inches long, a straight but downward lacer-
ation. The skull was crushed in and had
a laceration over his right eye about one
inch long and took about two stitches to
close that. I called Dr. Royster to see him
and we took out a piece of bone about 2
inches by 4+ inches in size. The skull was
crushed and in very bad shape. TI have an
opinion satisfactory to myself that Mr.
Williamson's death was caused by a blow
by some dull instrument.” The State of-
fered in-evidence a dogwood- wagon stand-
ard.
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Joseph Jiggetts, a witness for the defend-
ant, testified, in part: “I am the uncle of
Clarence Bracy, alias David Jiggetts. His
mother is in Durham and she turned him
over to me fourteen years ago, Ilis moth-
er was never married. Ile has been with
me since that time. He has always been
an easy boy and did not have much to say.
I sent him to school and he would stop on
the side of the road and eat up his dinner,
and come back home and tell me he had
been to school but he had not been. He
never went to school but mighty little. He
cannot read or write. When I corrected
him he would go ahead and do what I
asked him to do for a short while, and it
secmed like he would get angry or some way,
and do something contrary to what I told
him to do.- I could come home and bring
anything from the store and put it down.
He would go and move it. I would ask
where it is and he would say he did not
know. The only way I would find it would
be crossisg it some way; he would not tell
me. He did not do any talking at home.
He would not play with other children and
did not act at home as to other children.
He would act fine until I stormed at him,
or say anything to him about some of his
misdemeanors, then perhaps for one or two
hours he would do much better. For years
he had been hired out to other people and
I collected his wages, because he could not
count asy great amount of moncy. I
would do all of his buying that was over
$10.00 or $15.00, such as buying him
clothes. There was a charge brought
against him in Warren County this year
about some clothes. I sold his tobacco and
gave him $40.00 of his tobacco money. He
gave me back $20.00 of the money and told
me to keep it for him. * * * When
my wife and I left home we would leave
David at home. He would say he did not
want to go with us and would stay there
and take care of the children while we were
gone. He did not want to go with us to
the church. As to whether he would go
with girls—he would leave home but where
he goes I really did not know; he did not
talk much and did not tell me anything.
Boys and girls in the neighborhood would
come to the house but he would not have
much to say to them. Whatever little talk-
ing he would do if there was any pranking
with him he would cuss them out. * * *
I have not been in any trouble except the
trouble IT got in by this boy bringing the
stolen goods to my house. Sheriff Pinnell
1 SOUTH EASTERN REPORTER, 2d SERIES
carried me to jail about it; said the stolen
property was under the roof of my house.
I did not know it was stolen at the time.
Just as soon as. David Jiggetts stole the
stuff and carried it to my house he went
out of the packhouse and did not come back
before the next day and that is when they
caught him. As soon as he got out of
trouble in the Recorder’s Court of Warren
County he left and I did not see him any
more.”
The defendant testified, in part: “I was
not mad with Mr. Williamson; he had not
done anything to me. When the men took
me in the car at Norlina and drove down
the road and stopped they asked me was I
the man named-Clarence Bracy, and I.told
him ‘Yes, sir’. Then they asked me where
did Mr. Hicks live and I told him in front
of the lumber yard. They stopped before
they got to the place and the one that was
under the steering whcel turned around and
told me, ‘I want you to tell me the truth
now about the thing, did not you hit Mr.
Williamson with an axe?’ and I told him,
‘No, sir, I did not hit him with an axe. I
hit him with the wagon standard’ * * *
When Mr. Keeter came to see me in Raleigh
he told me he was looking for me to tell
him the truth about it and he would do all
he could to help me. He said I knowed
he had been helping me and I said ‘Yes,
sir,’ and he said he was looking for me to
tell him the truth about it. He did not
say he would clear me if I would tell him
the truth, he said he would do what he
could for me. * * * When I hit Mr.
Williamson I did not know what would be
done to me about it if they caught me.
The first time I knew they would do some-
thing to me for it was when I was in
Raleigh, * * * I have’ known Mr.
Keeter a long time. When I saw him in
Raleigh and he told me to tell him the
truth about how it happened, that is when
I told him; everything I told him was the
truth about how it happened. I changed
my name from David Jiggetts to Clarence
Bracy so I could get a job and get the
moncy for my work. My uncle had been
getting all of my money when I worked
out anywhere and that is why I changed
my name. I don’t know how long the
wagon standard had been setting there be-
side the barn. I don’t know how long
Mr. Williamson had been asleep when I
hit him; I reckon he was asleep, he was
laying down. I don’t know where he had
his hand; he did not have it under his
STATE v. BRACY N.C. 895
1 S.E.2d 891
head. I hit him over his head. He had the
tobacco sack in his front pocket. I took
it out and found he had three pieces of
money and some silver. I did not have any
money in my pocket before I hit Mr. Wil-
liamson. He did not do anything when I
hit him; did not try to get up. He just
turned over but did not fall off the plank
he was on; he did not move. After I
got the money out of the sack I left it ly-
ing there on the planks. I told Mr. Ollie
Williamson where I had thrown the tobac-
co sack after I got the money out of it.
Just as soon as I had done that and gotten
his money I ran away. ** * * J don’t
know what time of night it was that I hit
Mr. Williamson; it was dark; I had not
been to sleep. I do not know how long Mr.
Williamson had been to sleep before I hit
him. He was out the whole time I was
out there and I do not remembering him
going to the house. * * * No member
of Mr. Williamson’s family hac done any-
thing to make me mad. The reason I hit
him was te get the money and I was not
mad at him or none of his folks. They had
treated me all right. I had not asked him
for money and did not know when I was
to get my money. I did not want to kill
him and did not thought I had hurt him.”
R. J. Rivers testified for defendant, in
part: “I live in Warren County. I have
known David Jiggetts for the past two
years. He worked for me off and on at
different times. I think he is lacking some-
thing mentally. I could not say definitely
that he knows right and wrong all the time
but I judge from his general appearance
and acts day by day that he is not totally
developed in knowledge and brains. He
worked for me at different times as day
laborer on my farm. Ile was as good a
hand as I have ever worked; just tell him
what to do and he will do the work. “lis
uncle got the money for the work he did
for me. Ile worked for me setting out
tobacco in May of this year; he used a peg
setter. He worked for me last year some
too. I have known him for two years and
know he will do what I tell him to do. I
could not say whether he knows right from
wrong all the time, but I do know he has
sense enough to do what you tell him. to do.
He is very polite, comes to work on time. He
got his meals at his home. I lived 200 or
300 yards from him.”
P. E. Hilliard testified for defendant:
“T have known David Jiggetts for two
years. I have worked him some and he
worked on the farm of his uncle. His
uncle collected his wages when he worked
for me. The uncle never told me how old
he was. I did not see anything in his men-
tal capacity when he worked for me to in-
dicate he did not know right from wrong.”
Jasper B. Hicks, J. H. Bridgers, and R.
B. Carter, all of Henderson, for appellant.
Harry McMullan, Atty. Gen., and T. W.
Bruton and R. H. Wettach, Asst. Attys.
Gen., for the State.
CLARKSON, Justice.
[1] The question involved: First. Did
the Court err in instructing the jury, with
respect to the insanity, or mental disease,
or low order of intelligence to the extent
that one’is not responsible for his acts
offered by the defendant as a defense in
charging the jury? We think not. We
think the charge correct.
The following is the complete charge on
this aspect: “When insanity, or mental dis-
ease, or a low order of intelligence to the
extent that one is not responsible for his
acts is interposed as a defense in a criminal
prosecution, the burden rests with the de-
fendant who scts it. up to prove such in-
sanity or mental disease, or low order of
intelligence, not beyond a reasonable doubt
nor by the greater weight of the evidence,
but merely to the satisfaction of the jury.
Since a criminal intent is an essential ele-
ment of murder, if by reason of ‘insanity,
or mental disease, or a low degree of in-
telligence, a person is incapable of forming
any intent, he cannot be regarded by the
law as guilty. The mental derangement
must be such as to render the one attieted
therewith incapable of forming a criminal
intent. Every man is presumed to be sane,
and to possess a sufficient degree of rea-
son to-be responsible fer his crimes, until
the contrary be proven to_the satisfaction
of the jury, not beyond a reasonable doubt
nor by the greater weight of the evidence
but merely to the satisfaction of the jury.
To establish a defense on the ground of
insanity, or mental disease, or a low degree
of intelligence, it must be shown merely
to the satisfaction of the jury from the evi-
dence that at the time of committing the
act the party accused was laboring under
such a defect of reason, whether it is in-
sanity, whether it is. mental disease, or
whether it is a low degree of intelligence,
as not to know the nature and quality of
the act he was doing, or, if he did know,
that he did not _know that he was doing
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NtReetY OF AA
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896 N.C.
wrong. The capacity of the accused to
distinguish right from wrong in respect to
the act charged as a crime at the time of its
commission is made the test of his responsi-
bility. * * * But the defendant's de-
fense is not complete and he is not entitled
to acquittal on the ground of insanity, or
of mental disease, or a low degree of in-
telligence if at the time of the commission
of the crime he had sufficient capacity to
enable him to distinguish between right
and wrong, to understand the nature and
consequences of his act, and had mental
power sufficient to apply that knowledge to
his own case. Whatever may be his men-
tal weakness, if a person has knowledge
and consciousness that the act he is doing
is wrong and will deserve punishment what-
ever may be his mental weakness, he is in
the eye of the law of sound mind and
memory, and subject to punishment. If
the prisoner at the time he committed the
alleged homicide was in a state to compre-
hend his relations to other persons, the
ziature of the act and its criminal character,
or, if he was conscious of doing wrong at
the time he committed the act, he is re-
sponsible. But, if on the contrary, he was
under the visitation of God either in the
form of insanity, or mental disease, or a
low degree of intelligence, and could not
distifiguish between good and evil, and did
“not know what he did, he is not guilty of
any offense against the law, as guilt arises
from the mind and wicked will. The Su-
preme Court of North Carolina in one of
its recent decisions has said, ‘The insanity,
or mental disease, or low degree of in-
telligence which would be available to a
person as a defense, must be a mental dis-
ease such as renders the person incapable
of knowing the nature and quality of the
act he was committing. The test is, as to
whether or not he was responsible, is a
knowledge between right and wrong. If
he knew the act he was engaged in was
wrong and that it was unlawful, then in
the eyes of the law he would be sane, and
his plea would not avail him, but, if at the
time of the act he did not know that his
act was wrong, and did not know the dif-
ference between right and wrong, then in
law he would not be responsible for the act
that he did, but if he did know so at the
time of the act then his plea of insanity,
or mental disease, or low degree of in-
”
telligence cannot avail him’.
There was no exception or assignment
of error to the above charge. The charge
1 SOUTH EASTERN REPORTER, 2d SERIES
in substance is taken from State v. Jones,
FOIA 753;5758, 5 FOORISS- Se? SL ches
the rule laid down in State v., Potts, 100
N.C. 457, 463, 464, 6 S.E. 657, 659: “That,
when such proof of the homicide is fur-
nished, matters in excuse or mitigation
must appear or be shown, not beyond a rea-
sonable doubt, but to the satisfaction of the
jury. The prisoner admitting the killing
by means of a shot from a pistol, that
instrument, thus used, is a deadly weapon,
and the law implies malice, unless its ab-
sence is made to appear, and this must be
to the satisfaction of the jury. The prison-
er, to be responsible for his act, must have
legal capacity at the time to distinguish
between good and evil, and to know what
he was doing,—to comprehend his relations
towards others, the nature of his act, and
a consciousness of wrong. In the inquiry
as to.the prisoner’s mental condition, he is
assumed to be sane,—that is, to have the
degree of mind and reason required to con-
stitute criminal responsibility for his acts;
but he may prove the want of such
legal capacity by evidence of the presence
of insanity. * * * The measure of
criminal responsibility is this: If the
prisoner, at the time of the homicidal act,
was in a state of mind to comprehend his
relation to others, the nature and criminal
character of the act, was conscious that he
was doing wrong, he is responsible; other-
wise he is not; and such should be the
verdict. * * * We think the law was
fairly laid down, and as favorable to the
prisoner as he could ask,—indeed, it would
seem in one particular more so. The
charge appears to admit of a construction
that puts upon the state the proof of sanity
when it becomes a matter of controversy,
though it need not be such as to remove
all reasonable doubt, but only sufficient to
satisfy the minds of the jury. This bur-
den, with this measure of proof, rests,
however, upon the accused, according to
the repeated adjudications of the court.
State v. Brittain, 89 N.C. 481; State v.
Payne, 86 N.C. 609. The charge is strict-
ly in accordance with State v. Haywood,
Phil. 3370." {6b INAS 376): * 5 ¥)-* “The
test of accountability for crime is the abili-
ty of the accused to distinguish right from
wrong, and that in doing a criminal act he
is doing wrong. This is settled in State v.
Haywood, supra.”
In State v. Jenkins, 208 N.C. 740, 741,
182 S.E. 324, 325, speaking to the subject, it
is said: “Low mentality is not the-test of
STATE v. BRACY N.C. S97
1 S.E.2d 891
insanity. State v. Spivey, 132 N.C. 989, 43
S.E. 475. He who knows the right and
still the wrong pursues. is amenable to the
criminal law. State v. Potts, 100 N.C.
457,.6 S.E. 657. We are aware of the
criticism of this standard by some psychia-
trists and others. Nevertheless, the critics
have offered nothing better. It has the
merit of being well established, practical,
and so plain ‘that he may run that readeth
it’? Hab. 2:2.” State v. Edwards, 211 N.
C.555, 557, 191 S.E. 1;~State. v. Alston,
214° N:C.-93,..94, 197 “SAB=719; = State “v.
Hawkins, 214 N.C._326, 199 S.E. 284.
In State v. Falkner, 182 N.C. 793, 797,
108 S.E. 756, 758, 17 A.L.R. 986, it is writ-
ten: “In Shepard v. Tel. Co., 143 N.C. 244,
55 S.E. 704, 118 Am.St.Rep. 796, the present
Chief Justice [Clark], speaking for a
unanimous court, states the rule as follows:
‘In criminal cases, when a homicide with a
deadly weapon is proved or admitted, there
is a presumption of law that the killing is
murder, and the burden is on the prisoner
to prove all matter in mitigation or excuse
to the satisfaction of the jury (State v.
Matthews, 142 N.C. ‘621 [55 S.E. 342]);
and when a totally independent defense is
set up, as insanity, which is really another
issue (State v. Haywood, 94 N.C. 847), the
burden of that issue is on the prisoner.”
State v. Nall, 211 N.C. 61, 188 S.E. 637.
[2] Second. Is a defendant charged
with a capital felony, whose defense is the
lack of mental capacity to commit the crime
of murder in the first degree, entitled to
have the jury know the provisions of law
contained in Code 1935, Sections 6237 and
6239, which provide for his detention in a
State Hospital, and that his discharge
therefrom can only be procured in the man-
ner therein provided? We think not.
N.C.Code, supra, Section 6237 relates to
“persons acquitted of certain crimes or in-
capable of being tried, on account of in-
sanity, committed to hospital.” Section
6239—“Persons acquitted of crime on ac-
count of insanity; how discharged from
hospital.”
The statement of case on appeal shows
that the defendant’s counsel argued to the
1 S.E.2d—57
jury that the defendant should be acquit-
ted on the ground of insanity, and that, if
he was acquitted on that ground, he would
not go free, but would be put in the crimi-
nal insane department of the State Prison,
and he read and explained to the jury sec-
tions 6237 and 6239, supra of the Consoli-
dated Statutes. No objection was made to
this argument by the Solicitor. The Solici-
tor argued to the jury that the defendant
would go free if the jury returned.a verdict
of not guilty on the ground of insanity. No
objection was made to this argument by
the defendant. The defendant's counsel
requested the Court to instruct the jury in
accordance with his argument to them, but
the Court declined to give this instruction.
In State v. Walls, 211 N.C. 487, 496, 191
S.E. 232, 239, it is said: “Did the court
err in refusing to tell the jury of the pun-
ishment attempt to commit second-degree
burglary would carry? We think not. In
State v. Matthews, 191 N.C. 378, 381, 131
S.E. 743, 745, this court has decided con-
trary to defendant’s contentions: ‘A jury
has fully discharged its duty, and per-
formed its function, under the law of. this
state, when ‘its members have sat together,
heard the evidence, and rendered their ver-
dict accordingly. As the judge must not
invade the true office and province of the
jury by giving an opinion in his charge, ei-
ther in a civil or criminal action, as to
whether a fact is fully or sufficiently
proven (C.S. § 564), so the jury must be
content to leave with the judge the grave
responsibility imposed upon him to render
a judgment upon their verdict according to
law.’”
[3] All the evidence was to the effect
that the defendant was guilty of murder
in the first degree. The killing was wil-
ful, deliberate and premeditated for the
purpose of robbing the deceased. This
was so found by the jury beyond a reason-
able doubt. The question of insanity, the
defense of defendant, was submitted to the
jury upon a charge by the Court below
free from error.
The defendant was given a fair and im-
partial trial. In law we find no error.
BARRETT, Sylvester Oxted /-/4- O7
(Need confirmation.)
"Raleigh, NC, 11-8-1906-Gov. Glenn grants a respite for
Sylvester Barrett, colored, who is under sentence in Pitt
Co, to be hanged Nov. 17th, until Dec. 18, 1906, in or-
der that he may have time to investigate a petition from
counsel for commutation, Barrett was convicted of kill-
ing Walter Lovett, county constable, while the officer
was trying to arrest him for participation in a row in
the public road near Farmville. Jerry Cob’, another ne-
gro is serving a sentence for murder in the sécond degree
in connection with the same case, there being some doubt —
as to which of the 2 negroes fired the shot which killed
the officer,"
re an aaa RAXSLRMZXNEXY Richmond, Va., 11-9-1906
2e
Reprieved to 1-15-1907 TIMES=DISPATCH, 12-16-1906 (10-1)
648 N.C.
a’ deadly weapon, or even of simple as-
sault could be rendered if there is evi-
dence to support such a finding * * *.”
Hence it is clear that the trial judge was
not in error in charging the jury in the
present case, there being evidence tend-
ing to show such assault, that if the jury
acquit defendant of the charge of assault
with the intent to commit rape, the jury
will then consider and determine wheth-
er he is guilty or not guilty of assault up-
on the prosecutrix with a deadly weapon.
In conclusion, all other assignments of
error have been given careful considera-
tion, and we fail to find cause for disturb-
ing the judgment on the verdict rendered
against defendant. Hence the judgment
will be, and is hereby affirmed—there be-
ing
No error.
PARKER, J., not sitting.
249 N.C. 160
Cecil Norman SMITH
v.
CITY OF KINSTON, North Carolina,
a municipal corporation.
No. 305.
Supreme Court of North Carolina,
Nov. 19, 1958.
Action to recover for injuries sus-
tained when plaintiff’s automobile collided
with a tree on a street. At the close of
plaintiff's evidence defendant moved for
judgment of nonsuit, the motion was al-
lowed and plaintiff excepted, and from
the judgment of the Superior Court, Lenoir
County, William J. Bundy, J., in favor of
defendant the plaintiff appealed. The Su-
preme Court, Winborne, C. J., held inter
alia that in action against city for injuries
105 SOUTH EASTERN REPORTER, 2d SERIES
sustained when plaintiff’s automobile, three
days after “Hurricane Hazel”, collided im
street with part of fallen tree which was
two feet in diameter at trunk, evidence in
cluding showing that plaintiff knew of the
hurricane and of devastation brought by
it, that he was driving at 30 miles per hour
with lights dimmed to such extent that he
did not see the tree when there was nothing
to prevent him from secing, that lights of
city which had been put out of commissioa
by the hurricane had not been restored te
service, and that there was no other trafix
on the street, established that he was com
tributorily negligent and that such negl-
gence was a proximate cause of his injury,
precluding recovery,
Affirmed.
I. Negligence €=82
Plaintiffs negligence, to defeat tt
covery for personal injuries, need not have
been sole proximate cause thereof, but @
sufficient if it contributed to injuries a#
proximate cause or one of proximate
causes thereof.
2. Evidence €=8
It is a matter of general knowledgt
that “Hurricane Hazel” was of great anf
violent proportions, wreaking destructe®
upon buildings, houses,» and trees throug
out the area in which it occurred, and that
is a fact of which the court may proper ,
take judicial notice.
3. Evidence €=5(1)
Courts take judicial notice of subjec#
and facts of common and general know
edge.
4. Automobiles ©-306(8)
In action against city for injuries s@* —
tained when plaintiff’s automobile, threé 4
days after “Hurricane Hazel”, collided 4
street with part of fallen tree which ve
two feet in diameter at trunk, evidence ~~
cluding showing that plaintiff knew of tht age 2
hurricane and of devastation brought by
SMITH v. CITY OF KINSTON _. N.C. 649
Cite as 105 S.H.2d 648
ynd that he was driving at 30 miles per
bour with lights dimmed to such extent that
be did not see the tree when there was
nothing to prevent himfrom seeing, and
that lights of city which had been put out
of commission by hurricane had not been
restored to service, and that there was no
other traffic on the street, established that
he was contributorily negligent and that
wch negligence was a proximate cause of
his injury, precluding recovery. G.S. §§
2-129, 20-131, 160-54.
& Automobiles C146, 150, 168(1)
Even in absence of statutory require-
ment, a motorist must exercise ordinary
tare, that is, that degree of care which an
ordinarily prudent person would exercise
wider similar circumstances, and in. ex-
ercise of such duty it is incumbent upon
motorist to keep a reasonably careful look-
eat and to keep the vehicle under proper
control. G.S. §§ 20-129, 20-131.
Civil action to recover for alleged per-
tonal injury “solely and proximately caused
yy the actionable negligence of defendant
asalleged in his complaint.”
Defendant, answering the complaint,
denies that it was negligent in any respect
alleged, and it pleads as contributory negli-
fnce the conduct of plaintiff under the
fisting circumstances in bar of plaintiff's
tht to recover in this action.
These matters appear of record to be un-
tontroverted:
1. The city of Kinston, North Carolina,
now, and was at the times mentioned
herein “a municipal corporation duly cre-
#ted, chartered, organized and existing un-
_ &t and by virtue of the laws of the State
_ © North Carolina, with such powers and
_ ities as are conferred by law.”
<a
}2 “In the exercise of the authority con-
ted upon it as a municipal corporation
wader its charter and pursuant to the pro-
4 Ysions of law pertaining to municipal cor-
105 S.E.2d—4114
porations generally in this State,” the city
of Kinston “maintains streets and side-
walks within its corporate limits and that
it has authority over and control and super-
vision of such streets and sidewalks in the
manner and to the extent as authorized and
provided by law.”
3. “Shine Street is one of the streets of
the city of Kinston and the right of control
and supervision of said street by said city
and the duties of the city in respect to its
maintenance are such as are imposed by
law.”
4. “On the 15th day of October, 1954,
winds of hurricane strength and velocity
occurred in and around the streets of Kin-
ston, and in fact all over eastern North
Carolina as well as along the Atlantic sea-
board, it being a hurricane designated by
the United States Weather Bureau as Hur-
ricane Hazel.”
5. “Shine Street is one of the streets of
defendant city, running approximately east
and west, and one of the trees blown down
by said hurricane had set in or near the
south edge of Shine Street just west of its
intersection with Tiffany Street, and this
tree had blown in such manner as to reach
entirely across the vehicular portion of
Shine Street so as to fall and lie in a north-
western direction from its base, completely
blocking the street as to vehicular traffic.”
And “as soon as reasonable thereafter and
prior to the time complained of, defend-
ant’s employees had with axes and saws cut
away a sufficient portion of said tree so as
to open approximately one-third of the
vehicular portion of said street.”
. 6 And “On the 18th day of October,
1954, sometime shortly after 6 o’clock A.M.,
plaintiff was driving his wife’s 1954 Ford
automobile eastwardly along the south side
of East Shine Street and was approaching
the intersection of Shine Street and Tiffany
Avenue.”
7. And “after traversing the intersec-
tion of Shine Strect and Davis Street, an
automobile so driven and operated. by the
;
x
OT aot
~ + #1
UNAS
$
644 N.C.
wrongful death. McGill v. Bison Fast
Freight, Inc., 245 N.C. 469, 96 S.E.2d 438.
The weight of authority in this country
is to the effect that a general release ex-
ecuted in favor of the one responsible for
the plaintiff's original injury precludes an
action against the physician or surgeon for
damages incurred by the negligent treat-
ment of the injury. See 40 A.L.R.2d An-
notation—Physician—Original Tortfeasor
—Release, page 1079, where the authorities
from twenty-one jurisdictions are collected,
including North Carolina.
The case of Smith v. Thompson, 210 N.C,
672, 188 S.E. 395, 397 cited and relied upon
by the defendant, seems to support his posi-
tion. There, plaintiff had been injured in
a motorcycle accident and had given the
driver and owner a release which expressly
‘covered medical expenses in consideration
of payment to her of a stated sum of money.
She then brought suit against the physician
who had treated her for malpractice, in
which suit judgment was entered on the
pleadings. Upon defendant’s plea that the
release barred any action against him, upon
appeal to this Court the ruling of the low-
er court was affirmed. This Court said:
“The rule of law in actionable negligence
cases of this kind for damages is well
settled. In Ledford vy. Valley River Lum-
ber Co., 183 N.C. 614, 616, 617, 112 S.E. 421,
423, is the following: ‘In cases like the one
at bar, if the plaintiff be entitled to recover
at all, he is entitled to recover as dam-
ages one compensation—in a lump sum—for
all injuries, past and Prospective, in con-
sequence of the defendant’s wrongful or
negligent acts. These are understood to
embrace indemnity for actual nursing and
medical expenses * * *” In Sircey vy.
Hans Rees’ Sons, 155 N.C. 296, 299, 71 S.E.
310, 311, we find: * * * ‘A plaintiff is
entitled to but one satisfaction of his cause
of action, whether but one or many may be
liable, or whatever the form of action may
be.” The Court also quoted inter alia
from Edmondson v. Hancock, 40 Ga.App.
587, 151 S.E. 114, wherein the Georgia
Court was quoting from Martin y. Cun-
105 SOUTH EASTERN REPORTER, 2d SERIES
ningham, 93 Wash. 517, 161 P. 355, LRA
TIBIA, 225,38 £8 iB Fe pe Well-tet
tled doctrine of the law that complete
satisfaction for an injury received free
one person in consideration of his releaw
Operates to discharge all who are fiatte
therefor, whether they be joint or sever!
wrongdoers,’” [40 Ga.App. 587, 151 SE
117.]
In Lane vy. Southern R. Co., 192 N.C.
134 S.E. 855, 857, 51 A.L.R. 1114, Connee,
J., speaking for the Court, said: “In the
Case of torts, the general rule is that th
wrongdoer is liable for any injury which #
the natural and probable consequence of he
misconduct. Such liability extends not only
to injuries which are directly and immeé
ately caused by his act, but also to such com
Sequential injuries, as, according to the
common experience of men, are likely te
result from such act. * * * Jf the fp
jured person exercises due care to have the
injury properly treated, the result of the
treatment, if not beneficial, cannot affect
the damages, which he would otherwise be
entitled to recover of the wrongdoer,
whose wrongful act he was injured. If the
treatment of the injury, procured by the >
jured Party, in the exercise of due care, @
beneficial, and reduces the damages result.
ing from the act or omission of the wrong:
doer, such reduction relieves the wrong:
doer pro tanto. If such treatment is mat
beneficial, and results in increased or a
ditional damages, the wrongdoer who
act or omission made the treatment nece®
Sary or proper must be held liable for sact q
additional or increased damages.”
In Restatement of the Law of Tort 4
Volume 2, section 457, 'it is said: “If the a
’
negligent actor is liable for another's #
jury, he is also liable for any additional “4
bodily harm resulting from acts done Ld
third persons in rendering aid which
other’s injury reasonably requires, irrespet®
tive of whether such acts are done im®
proper or negligent manner.” Thompson *
Fox, 326 Pa, 209, 192 A. 107, 112 ALR J
550; Feinstone v. Allison Hospital, Int,
106 Fla. 302, 143 So. 251; Wells v. Goal
STATE v. BASS f
Cite as 105 S.B.2d 645
; 31 Me. 192, 160 A. 30; Adams v. DeYoe,
Il N.J.Misc. 319, 166 A. 485; Milks v. Mc-
Iver, 264 N.Y. 267, 190 N.E. 487; Hooy-
ean v. Reeve, 168 Wis. 420, 170 N.W. 282.
It is said in Feinstone v. Allison Hos-
ptal, Inc., supra [106 Fla. 302, 143 S. 253 1;
“Complete satisfaction for any injury re-
ttived from one person in consideration for
bis release operates to discharge all who
ate liable therefor, whether joint or several
wrongdoers.” ;
In Wells v. Gould, supra, the Court held:
“e * * a settlement with, and release
of, all rights to recover against the original
tort-feasors by the injured person, operates
#s a bar to another action for malpractice
gainst the physician or surgeon who
treated and aggravated the injury. (Cita-
Sons omitted.)
“The result is the same, we think, when
the injured person brings suit on his
aim against the original wrongdoer and
feceives satisfaction of his judgment. His
fuse of action there is single and in-
&visible, and includes all damages which
‘aturally result from the original injury
any part of it. (Citations omitted.)
His acceptance of satisfaction of the judg-
®ent/ recovered has the same effect as a
telease. It extinguishes his cause of ac-
fen against other tort-feasors liable for
Same injury and bars action against
them,”
In the case of Milks vy. McIver, supra
[54 N.Y. 267, 190 N.E. 488], the Court
Rid: “The rule is now well established
| Bta wrongdoer is liable for the ultimate
» fesult, though the mistake or even negli-
fence of the physician who treated the in-
ry may have increased the damage which
®eld otherwise have followed from the
@iginal
_ Stisfaction by the original wrongdoer of
© damages caused by his wrong bars
tion against the negligent physician who
| Sktavated the damage. The law does not
& Permit a double satisfaction for a single
E Bjury.”
wrong. * * * In such case
In the instant case, the plaintiff knew or
had a reasonable opportunity to know all
about the defendant’s conduct in connec-
tion with the examination and treatment
of his intestate at the time he instituted his
original action for her wrongful death.
More than five months elapsed between the
death of his intestate and the institution of
that action. With full knowledge of the
existing facts, the plaintiff elected to sue
the drivers and owners of the cars involved
in the accident, and alleged in his complaint
“That the death of the said Marcia Jeanette
Bell, the plaintiff’s intestate, was due solely
to and was the result of the joint and sev-
eral negligent acts of the defendants con-
curring and proximately causing the said
death of plaintiff's intestate * * *”
We hold that the consent judgment plead-
ed in bar of plaintiff's right to maintain this
action constitutes a general release, and is
a bar to the maintenance of this action.
The ruling of the court below will be up-
held.
Affirmed.
PARKER, J., not sitting.
w
© E Key NUMBER SYSTEM
T
249 N.C. 209
STATE
v.
Matthew Phillip BASS.
No. 434,
Supreme Court of North Carolina.
Noy. 19, 1958.
Defendant was convicted in the Su.
perior Court, Wake County, Malcolm C.
Paul, J., for rape, and he appealed. The
Supreme Court, Winborne, C. J., held that
it had not been error to admit in evidence
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UNIVE
646 N.C.
(1) knife with which prosecutrix had been
cut, wearing apparel which had been re-
moved from her person and testimony of
prosecutrix identifying same; (2) corrob-
orative testimony of other witnesses per-
taining thereto; and (3) photographs il-
lustrating testimony of prosecutrix and
other witnesses as to areas surrounding
scene of crime charged.
No error.
1. Criminal Law 438
Photographs may not be admitted as
substantive evidence, but where there is
evidence of accuracy of photograph, wit-
ness may use it for restrictive purpose
of explaining or illustrating to jury his
testimony relevant and material to some
matter in controversy.
2. Criminal Law €=404(3, 4), 438
Rape €=38(1)
In rape prosecution, it was not error
to admit in evidence (1) knife with which
prosecutrix had been cut, wearing apparel
which had been removed from her person
and testimony of prosccutrix identifying
same; (2) corroborative testimony of
other witnesses pertaining thereto; and
(3) photographs illustrating testimony of
prosecutrix and other witnesses as to
area surrounding scene of crime charged.
3. Assault and Battery €=96(8)
Where there was evidence tending
to show such assault, it was not error for
trial judge, in rape prosecution, to charge
that if jurors acquitted defendant of charge
of assault with intent to commit rape they
should then consider and determine wheth-
er he was guilty or not guilty of assault
upon prosecutrix with a deadly weapon.
GS. § 15-169.
—_—_—_-
Criminal prosecution upon a Dill of in-
dictment, No. 3724, charging, summarily
stated, that Matthew Phillip Bass, at and in
the county of Wake, North Carolina, on
105 SOUTH EASTERN REPORTER, 2d SERIES
the 12th day of June, 1958, did rape s
certain named female person.
The defendant Matthew Phillip Bass,
upon arraignment at the Bar of the court,
then and there present and represented
by counsel, theretofore assigned by the
court to defend defendant, pleaded not
guilty, and “for good and for evil puts
himself upon God and his country.”
And upon trial in Superior Court the
State offered evidence tending to show
that defendant committed the crime charg.
ed in all of its elements,—details of which
would not serve any useful purpose, and
hence, may rest in the record of case ¢
appeal. Defendant offered no evidence
And the case was submitted to the Jury
under the charge of the court.
Verdict: The jurors for their: verdst
say that the defendant Matthew Phillg
Bass is guilty of rape as charged.
Judgment: Death by inhalation of lethal
gas as provided by law.
Defendant, through his counsel, excey®
thereto and appeals to the Supreme Coort
of North Carolina, and assigns error.
Herman L. Taylor, Samuel S. Mitchel
Raleigh, for defendant-appellant.
Atty. Gen. “Malcolm B. Seawell, Avt
Atty. Gen. Harry W. McGalliard, for Os
State.
ie
WINBORNE, Chief Justice.
The record fails to show that defendsat
moved to dismiss the action or for judi
ment as of nonsuit when the State had i
troduced its evidence and rested its ak,
or at the close of all the evidence in a
cordance with the provisions of GS.
15-173. Nor does the defendant contest
here on this appeal that the evidence #
insufficient to take the case to the is :
on the charge laid, and to support
verdict rendered against him.
But defendant does set forth in the ct
on appeal assignments of error ©
| 36 S.E.2d 653;
STATE v. BASS
N.C. 647
Cite as 105 S.H.2d 645
eghty-four exceptions to matters occur-
ting in the course of the trial in Superior
Court, and to portions of the charge as
given by the trial judge to the jury, and
w his failure to charge in other aspects.
{1,2] The exceptions brought forward
a large measure relate to (1) direct testi-
sony of prosecutrix in identifying wear-
mg apparel removed from her person, and
lter found in the building, and as to knife
e{ defendant with which prosecutrix was
est, all introduced in evidence; (2) cor-
reborative testimony of other witnesses
wrtaining thereto; and (3) photographs
wdmitted in evidence for the purpose of
Wustrating the testimony of prosecutrix
wad of other witnesses as to areas sur-
munding the scene of the crime charged.
The action of the court in admitting
meh evidence finds approval in decisions
ef this Court. State v. Wall, 205 N.C.
#9, 172 S.E. 216; State v. Petry, 226 N.C.
State v. Hooks, 228
R.C. 689, 47 S.E.2d 234; State v. Speller,
N.C. 345, 53 S.E.2d 294, 297.
In the Speller case, in opinion by Ervin,
lit is said:
Woduged at the trial by the prosecution
Were rightly received in evidence. They
Wtre identified as the garments worn by
%e accused and prosecutrix at the time
| Smed in the indictment, and bore tears
fd stains corroborative of the State’s
teory of the case,” citing State v. Wall,
_ ‘pra, and other cases. The same princi-
A He would apply as to the knife of defend-
“* with which, prosecutrix testified, he
© Greatened her and actually cut her hands,
~ face and throat.
Moreover, the decisions of this Court
| Siformly hold that while in the trial of
) Ss, civil or criminal, in this State, photo-
| Baphs may not be admitted as substantive
)®idence, Honcycutt v. Cherokee Brick
me %, 196 N.C. 556, 146 S.E. 227; State v.
B Petry, 212 N.C. 533, 193 S.E. 727, where
¢ is evidence of the accuracy of a
p Potograph, a witness may use it for the
“The articles of clothing:
restricted purpose of explaining or il-
lustrating to the jury his testimony rele-
vant and material to some matter in con-
troversy. See State v. Gardner, 228 N.C.
567, 46 S.E.2d 824, and cases cited. Also
State v. Chavis, 231 N.C. 307, 56 S.E.2d
678; State v. Rogers, 233 N.C. 390, 64 S.
E.2d 572, 28 A.L.R.2d 1104; State v. Nor-
ris, 242 N.C. 47, 86 S.E.2d 916.
Testing the matters of testimony in re-
spect to photographs by the principle here
stated, error in the rulings of the trial
judge is not made to appear.
[3] Furthermore defendant contends
that the court erred in charging the jury
in respect to verdicts that may be rendered
by the jury.
In this connection it is provided in per-
tinent part by statute G.S. § 15-169, form-
erly G.S. § 4639, that: “On the trial of
any person for rape *.* * when the
crime charged includes an assault against
the person, it is lawful for the jury to ac-
quit of the felony and to find a verdict of
guilty of assault against the person indict- ,
ed, if the evidence warrants such finding
* * *” And speaking to the subject of
this statute in State v. Williams, 185 N.C.
685, 116 S.E. 736, 738, this Court, in opin-
ion by Walker, J., had this to say: “It
is a well-recognized principle that where
one is indicted for a crime and, under the
same bill he may be convicted of a lesser
degree of the same crime, and there is
evidence tending to support the milder
verdict, the prisoner is entitled to have
this view presented to the jury under a
correct charge, and an error in this re-
spect is not cured by a verdict convicting
the prisoner of a higher offense, for, in
such case, it cannot be determined that the
jury would not have convicted of the les-
ser crime if the view had been correctly
presented by the judge, upon evidence.”
And the Court went on to say, as in the
instant case, “defendant, as stated, is in-
dicted for the crime of rape. Under such
an indictment, and by express provision of
our statute law, a verdict of assault with
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Ralph M. Moody, Asst. Attys. Gen., for
the State.
William Reid Dalton, of Reidsville, for
defendants.
PER CURIAM.
The facts of this record, in so far as
they ‘relate to alleged jury defect and bias,
are practically identical with those appear-
ing in, State v. King, 43 S.E.2d 82, here-
with decided. The conclusions there are
controlling here. -That case and this one
are based on the rulings in the Koritz
Case, 43 S.E.2d 77, herewith decided.
No error.
227 N.C. 527
STATE v. LITTERAL et al.
No. 218.
Supreme Court of North Carolina.
June 5, 1947.
1. Criminal law C=99
Where defendants were first held by
federal authorities on charge of kidnap-
ping, federal court’s release of defend-
ants to custody of state to be tried on
charge of rape was a matter of comity
and courtesy, and state court having ob-
tained custody had jurisdiction to pro-
cced.
2. Jury C>33(1, 5)
Absence of women on jury panel did
not constitute a fatal defect in rape prose-
cution, where panel was drawn and sum-
moned and grand jury was sclected and
impaneled before effective date of consti-
tutional amendment making women cligi-
ble for jury service and bill was returned
the following day, and petit jury was se-
Iected without use of any of 28 peremp-
tory challenges available to defendants.
Const.Amend. Adopted in 1946, see Pub.
Laws 1947, c. 1007.
3. Jury €=33(5)
Males charged with rape could not
complain of absence of women on jury
panel, since alleged discrimination did not
affect the defendants,
4. Witnesses C=414(1)
Where prosccutrix in rape prosecu-
tion testified that she was kept from home
all night, maltreated, misused, criminally
assaulted, and left alone and in distress
in the nighttime in a cornfield in Tennes-
see, and her testimony was challenged
and its credibility put at issue, testimony
of prosecutrix’s mother that prosecutrix
did not return home that night and that
mother-so reported to officers and radio
station was properly admitted.
5. Criminal law C=415(1)
In prosecution for rape of -prosecu-
trix who was left alone and in distress in
nighttime in a cornfield in Tennessee,
testimony of witnesses from Tennessec
who rendered prosecutrix assistence and
who stated that she had exclaimed, “Oh,
God, will somebody help me?”, was prop-
erly admitted as’ completing the picture
of what happened on night of offense.
6. Witnesses €=—414(2)
In rape prosecution wherein prosecu-
trix while testifying did not refer to
statement made to officer and reduced to
writing and signed by her, but there was
other evidence, tending to identify state-
ment as prosecutrix’s written statement,
the statement was properly admitted as
corroboratory _ testimony,
7. Criminal law €=695(2)
In rape prosecution, a general objec-
tion to prosecutrix’ statement as a whole
did not require court to sift the writing
and eliminate therefrom any part which
might not tend to corroborate the prosecu-
trix.
8. Witnesses €=414(1)
In rape prosecution wherein testimony
disclosed that cab driver noticed defend-
ants on day of crime and noted on his cab
book a description of the automobile and
number of its license plate, and on fol-
lowing day officers found the license plate
in a stovepipe in loft of a barn at one
defendant's home, the memoranda were
properly admitted to corroborate the wit-
nesses.
ad * alt eet ae ee
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ithe PTA soe Seat NMI Pt Ny {
SOUTH EASTERN REPORTEI SERIE
S4 «NC. ae SON Bead SERIES STATE v. LITTERAL N
Cite as 43 8.E.24 84 - 85
9. Criminal law €=532 15. Criminal law €>768(1)
While it is better practice for a judge A charge that jury arriving at verdict
on voir dire respecting an alleged confes- must be governed by their recollection of
sion to make his finding as to voluntari- the testimony was proper.
ness thereof and enter it in the record, a
failure so to do is not fatal, since volun-
tariness is the test of admissibility and
that is for judge to decide.
16. Criminal taw ¢=889
Where jury returned a verdict as to
one defendant as charged in bill of indict-
ment and as jury was about to return ver-
(0. Criminal law =519(3, 4), 531(1) dict as to codefendant court interrupted,
Confessions, nothing else appearing, informing jury that court could not accept
are presumed to be voluntary and are not verdicts and instructed jury that jury should
rendered incompetent by reason of fact that spell out the verdicts, which should be guil-
defendant was at time under arrest or in ty of rape as charged in bill of indictment
jail or in presence of armed officers. or guilty of assault with intent to commis
Tape, Or not guilty, and shortly thereafter
Jury returned verdicts of guilty of rape as
charged in bill of indictment, codefendant’s
exception to procedure was properly over-
ruled.
il. Witnesses 219(5)
| Where alienist who testified that ac-
cused was mentally incapable of dis-
tinguishing right from wrong based such
opinion in part on information received
from accused during a two-hour conference
with him, cross-examination of alienist in | Appeal from Superior Court, Wilkes
Tespect to statements made by accused for County; H. Hoyle Sink, Judge.
Purpose of testing soundness of and im- Ralph Vernon Litteral and Marvin
Peaching conclusion made by alienist was Claude Bell were convicted of the capital
not incompetent by reason of the physician- felony of rape, and they appeal J
patient relationship. G.S. § 8-53, Scene
a
No error.
12. Witnesses €=219(5) Criminal prosecution under bill of in-
Accused, in offering alienist as a wit- dictment which charges the capital felony
ness who expressed opinion that accused of rape.
was incapable of distinguishing right from
wrong waived alleged confidential relation-
ship and opened the door far cross-examina-
tion concerning all matters about which
witness had testified.
The evidence for the State tends to
establish the following facts:
Prosecutrix lives at Pleasant Hill, a settle-
ment on the Traphill road about four miles
from the center of Elkin. On the evening
13. Criminal law ¢>489 of August 23, 1946 she and two girl friends,
Where alienist who testified that ac- 2¢Companied by three boys, went to a
cused was mentally incapable of distinguish- Watermelon feast in or near Elkin, ar-
ing right from wrong based that opinion ‘ving about 7:00 p.m. They returned to
in part on information received from ac- the cab station at Elkin, a bus ED: 68
cused during a two-hour conference with late to “catch” a bus. They then went to
him, cross-examination of alienist in re- @ Movie. They returned to the bus SOP
Spect to statements made by accused for and the three girls boarded a bus about
purpose of testing soundness of impcach- 11:05 p.m. to go home. Prosecutrix lived
ing conclusion made by alienist was not in- @bout 100 yards beyond the end of the
competent because it involved former con- ‘4 Of this bus where it turned around
duct of accused and tended to show a crim- #"d returned to town. The girls noticed
inal beeard: a car with its lights off trailing the bus.
Prosccutrix’s two girl companions left the
14, ert genis eile: 5 se oe , bus sometime before it reached the end
ce — whe ne of its run. The bus, having reached its
Sa sak es y to state terminus, drove into a side road to turn
or the other. around. The trailing car turned on its
“L161 “TT tequesey uo
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stigation to
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found his
days after
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nesses,
ecalled
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eets during
evening of
He explained that a pair of local resi-
dents had asked him to drive to a near-by
house where they wanted to obtain some
liquor, but when they arrived they found
that the purchase could not be made. At
that time a Ford coupe had driven up
with the two tough-looking occupants,
who, learning what his passengers wanted,
suggested that they dismiss the cab and
travel with them.
“IT didn’t like their looks,” the taxi-driver
told the G-Men, “so I jotted down their
license number.” Searching his notebook,
he read it off to the Agents: “North Caro-
lina 542-720.”
While the serial numbers were flashed
to state highway patrol headquarters, the
G-Men sought a trace of the two erstwhile
cab passengers. They found them later
that evening. From them the Agents
learned that a child’s toy ball had been
seen in the back of the car during their
brief ride with the strangers, the taller
of whom had bragged that he had beaten
“two raps” at Yadkinville, in another part
of the state.
Since the ball clue tied in with Helen’s
description of the car, the G-Men lost no
time in hurrying to Yadkinville to check
the records of the local police and courts.
Poring over a list of vagrancy and dis-
orderly hearings, they sought an instance
of one person having received two acquit-
tals. In Superior Court, the clerk’s docket
showed that on August 20th, one Ralph
Vernon Litteral, charged with an “affray”
and with violation of prohibition laws,
had been found not guilty on both cases.
But was he one of the men in the black
Ford coupe?
The Bureau Agents obtained Litteral’s
photograph from the files and went to see
the victim, Helen Harris. They mixed the
picture with a dozen others, including
one of Marvin Claude Bell of Roaring
River, North Carolina, whose family’s
name had appeared on the records for
license plates 542-720.
Helen was in bed slowly recovering
from the tortures inflicted by her ab-
ductors. She sat up and began to thumb
through the pictures. Suddenly she grew
rigid. In her trembling hand was the
photograph of Ralph Litteral.
“I’ve seen that face every night in my
sleep. He was in front of me when the
blindfold slipped down.”
The photograph of Bell, the second sus-
pect, however, made no impression on her.
She explained that it would be impossible
for her to identify him on sight as she had
only caught a fleeting glimpse of the back
of his head before the blindfold was re-
placed.
However, when the local taxi-driver and
his passengers identified Bell’s photograph,
along with Litteral’s, it was realized that
there was a strong possibility that both
were involved in Helen’s abduction and
torture. Acting on the facts they had de-
veloped, the G-Men filed a kidnapping
complaint against Bell and Litteral before
the U. S. Commissioner at Winston-Salem
on August 30th, and the search for the
fugitives launched into high gear.
Litteral had friends and relatives scat-
tered through the state, and as plans were
being made to contact them, word came
that on August 26th, three days after the
attack on the girl, he had been arrested
for disorderly behavior and sent to serve
a sixty-day stretch at a state road camp
at Boone, deep in the Blue Ridge Moun-
tains.
Before the day was out the G-Men were
at the camp, interviewing the prisoner. He
was tall and slender with bulging, green-
ish-blue eyes and a twisted, cruel mouth.
His first reaction was to deny categoric-
ally any part in the abduction.
The G-Men were patient. They told him
ual
how his photograph had been positively
identified and how the evidence had been
corroborated. Then Litteral changed his
story. He admitted he had been on the
ride but placed the blame on Bell for
everything that had happened. Agents
told him of Helen’s account and he changed
his story again and began to admit the
truth. It was a brutal story, the details
of which are too shocking to repeat. here.
Ironically enough, his idea of the smart
way out of his predicament was the thing
that proved his nemesis.
Questioned as to why they drove from
North Carolina to Tennessee, Litteral re-
plied, “It was the nearest way out of the
state where no officers would jump us.”
Little did he realize that by fleeing
across state lines while holding their vic-
tim captive, Bell and he had violated the
Federal kidnapping law and had flung a
challenge to the vast resources of the FBI.
Now the search concentrated on Bell.
Highway Patrolman Sidney Carter joined
Corporal McKinney and the Bureau Agents
as they stalked the mountainside in a mid-
night raid on Roaring River. They found
their man stretched out on a cot in his
cabin. Tall and thick-shouldered, with
beady gray eyes, he stared stupidly at
their drawn guns. Taking him into custody
before he could make a move, the G-Men
searched the house, the car, and the farm
buildings. A quick look at the car showed
that it had a spotlight ornament, a broken
window, no mat on the rear floor, and a
badly functioning left headlight. In the
rear seat lay a multi-colored toy rubber
ball which whistled when it was squeezed.
The license plates now read 734-003, but
a little search brought to light plates
542-720 which had been hidden in a stove
pipe.
ELL’S reaction to his arrest was the same
as Litteral’s. First he swore he was inno-
cent. Then he blamed Litteral for the kid-
napping scheme, but he admitted that he
too had twice criminally assaulted the
victim.
A check on the records showed that
both men were confirmed criminals.
Litteral, thirty-five, had been arrested over
fifty times between 1930 and 1946, and
had been sentenced to serve a total of
eleven years in various Federal, state and
local institutions. Bell, twenty-four, had
a reputation as a lazy, sullen, arrogant
braggart and had been gainfully employed
for only about a total of six months dur-
ing his entire life. On one occasion he
had driven full speed into a Treasury
car containing investigators who were
approaching his house on a revenue com-
plaint. He had seriously injured one of
the officers and knocked himself out as
well.
Even while both men were held in jail
to await charges the Bureau Agents con-
tinued their thorough probe to corroborate
every phase of the victim’s story. When
the kidnap charge was thus being made
airtight, the Attorney General of the
United States decided to release the pris-
oners to the State courts so that they
might be tried on charges of rape, which
-in North Carolina calls for a mandatory
death sentence on conviction.
Indicted by a State jury after testimony
by FBI Agents, the trial of Litteral and
Bell began on January 13th, 1947, before
a special term of Judge Hoyle Sink’s Su-
perior Court in Wilkesboro, with Avalon
Hall, Solicitor of the 17th Judicial District,
as prosecutor. The proceedings lasted for
six days, highlighted by the testimony
of Helen Harris who, still weak and
shaken from her ordeal, recited in detail
how she had been tortured and abused by
the desperadoes.
The judge charged the jury late in the
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afternoon of January 13th, 1947. The
twelve rugged mountaineers deliberated
fifteen minutes, then reported their ver-
dict: “Guilty.”
The mandatory sentence was death. Only
Bell appealed the verdict which went to
the United States Supreme Court. Mean-
while, both of the condemned men waited
in their cells in the State Penitentiary at
Raleigh.
HEN the highest court in the land
refused to intervene in Bell’s case, the
execution was set for November 14th, 1947.
The prisoners’ last resort for clemency
was Governor R. Gregg Cherry. He re-
viewed each detail of the charges, then
announced, “It’s an awful thing to take
a man’s life, but I can’t intervene in these
cases. It was one of the most horrible
crimes. If there is going to be a death
penalty for rape, this is one of them.”
Informed of the Governor’s decision,
Litteral, who had hitherto spurned the
prison chaplain’s offer of spiritual con-
solation, underwent a change of heart.
He asked the Reverend William H. Jackson
to baptize him, and after the service said:
“There is only one way—that is to follow
God. I wish I had followed Him years
ago. Tell my friends and loved ones to
accept God before™“ft is too late.”
There were twenty-one persons in the
witness room when the two who all their
lives had flouted the laws of both God
and man, were brought into the gas cham-
ber. Bell and Litteral, their faces hidden
by masks, clasped hands for an instant,
then gripped the sides of their chairs as
the fuming cloud of deadly cyanide curled
toward their nostrils. Litteral was seen
to take deep breaths as if to hasten the
end. Within a matter of minutes both
figures were still, only the stethoscope
strapped to each of their chests echoing a
feeble heart beat.
Then there was silence, and the figures
slumped forward, dead.
Their torture victim’s vision of doom
was now fulfilled.
Epitor’s Nore:
The names, Helen Harris and Adam
Walton, as used in the foregoing story
are not the real names of the persons
concerned. These persons have been
given fictitious names in order to pro-
tect their identities. The name of the
town, Croley, is also fictitious. Photo-
graphs of Ralph Litteral (left) and
Marvin Bell appear on page 80.
Double Murder at the Bar-S
(Continued from page 45) doesn’t take two
or three men long to load half-a-dozen ani-
mals and be on their way.”
“Why didn’t Stollar report his losses?” an
officer asked.
“He wanted to be sure,” Warren replied.
“He did ask brand inspectors at the stock-
yards in Omaha and Denver to be on the
lookout.”
When these facts were reported to
Sheriff Green he decided a cattle rustler
would not be likely to follow the Stollars
back to the ranch, beat them to death and
steal their car. “He’d use a gun, let the
bodies lie out on the range and get away
in his truck,” he declared. “There must
be another answer to this riddle.”
With the arrival of dawn, Green asked
the spectators to search the ranch yard for
the murder weapon while he and County
Attorney Jordan returned to the machine
shed where Stollar’s body had been found.
They followed the scratches made by his
boot heels in the soft soil and these ex-
tended from the shed door to a grindstone
which stood beside a work bench about
ten yards distant.
Several sickle bars from mowing ma-
chines lay on the bench and there was one
on the ground beside the grindstone. There
were several crimson stains on the stone
and on the wooden stand, and a huge
brown blotch on the grass beside the work
bench.
This made it easy for Sheriff Green to
visualize what had happened Thursday
morning. John Stollar had been killed as
he held a sickle bar against the whirling
stone. He had toppled forward against
the stone and then slid to one side. His
attacker had quickly dragged his body into
the shed, rifled his pockets and covered
him with debris.
Since it required two men to sharpen a
sickle bar, one to turn the stone while the
other held the bar against it, Green de-
cided that Stollar had succeeded in find-
ing someone to take Warren’s place and
that it was the new employee who had
killed his employers after only a few
hours on the ranch.
THER searchers found a short-handled
axe in a clump of bushes between the
house and garage. It had been thrust into
a pile of mulch and only the tip of the
handle was visible. The blade and lower
part of the handle were bloodstained and
several strands of black hair adhered to
one side of the blade. Green was certain
that laboratory tests would prove these had
been torn from Mrs. Stollar’s head.
He examined the handle for fingerprints
but failed to find any. He hoped the
killer had been careless for an instant but
then he realized that most men in the
range country wore gloves as they worked
and this man had been no exception.
When the commercial radio stations in
western Nebraska went on the air at seven
o’clock Sunday morning, the news of the
double murder created a furore and re-
sulted in a flood of tips to Sheriff Green
and his associates.
Through these valuable bits of informa-
tion they were able to account for prac-
tically every moment John and Grace Stol-
lar spent in Alliance on Tuesday and tele-
phone calls were received from several
near-by towns where Stollar was well
known. It did not help, however, to iden-
tify the killer though one informant re-
ported that Stollar told him he had found
a man to take Warren’s place who could
start work in the hay fields the last of the
week.
Stollar had spent some time in the Al-
liance Farm Bureau Office and told the
manager he needed a man. He talked to
several itinerant workers at the Burlington
Depot but apparently without success since
all of. the men boarded the afternoon train
bound for the north and the harvest fields
in South Dakota. Late Tuesday evening,
he and Mrs. Stollar drove away from the
Alliance business district and stopped at a
filling station to have their car serviced.
The attendant there told Green he was
certain they were alone at the time. The
task of finding out who the killer was
loomed as well-nigh impossible.
Shortly after noon, a filling-station owner
heard a repeat broadcast in which special
emphasis was placed on the missing car.
He immediately contacted Sheriff Green
and said he had serviced the Stollar car
about nine o’clock Thursday night. He
described the driver as a young man about
twenty to twenty-fiye years old, five feet,
ten inches in height, and estimated his
weight at about one hundred and seventy
pounds. He was deeply tanned, smooth-
shaven and had black hair and eyes. “He
looked like a cowpuncher headed for a
rodeo,” the station owner said. “He had
on a tan silk shirt, tan trousers, cowboy
boots and a dark jacket with tan trimming.”
“Did he say which way he was headed?”
Green asked.
“He asked about the roads to the north,”
was the revly. “He wanted to get to Allen,
South Dakota, that night and go on to
Sioux City, Iowa, the next day. There
must have been a couple hundred dollars
in the roll he pulled out of his pocket when
he paid me.”
“You’re sure it was the Stollar coupe?”
Green insisted.
“Tf Stollar’s license number was 61-641,
as you say it was, then it was the Stollar
car It was a black Chevvy coupe and I
suggested an oil check but he told me to fill
it with gas and let it go at that,” the man
replied.
tetra ld GREEN quickly contacted South
Dakota authorities and suggested it
seemed more than a coincidence that the
driver of the stolen car was headed for
Allen and that Joe Warren lived in that
small community on the eastern edge of
the Bad Lands. He asked that Warren be
questioned about any friends who had
visited him while he was employed at the
Bar-S.
Sioux City police were asked to shake
down the Iowa metropolis and Detective
Chief Harry Gibbons told Green a rodeo
was scheduled to get under way in a cou-
ple of days and contestants were arriving
daily from all parts of the West.
In the meantime, Gale Thompson found
the Bar-S tally book in John Stollar’s desk.
In it were recorded all transactions inci-
dental to the operation of the huge ranch
but there had been no entries for several
days. It did not contain the record of sup-
plies purchased in Alliance, the name of
the new hired man and his rate of pay or
the amount of money paid Joe Warren
when he quit his job.
But Green was convinced that some-
where around the ranch there was some
bit of evidence which would point the way
to a quick solution. He reasoned that it
was impossible for anyone to spend two
nights and a day at the place and not
leave some clue. Finally he went to the
bunkhouse for another search. A _ hired
man would have spent several hours in
this building and it was here he might have
overlooked some vital bit of evidence.
The long, narrow room was in perfect
order. Apparently one of the last things
Mrs. Stollar did before she was bludgeoned
to death was to put the bunkhouse in order.
The three beds were made up, clean towels
and wash cloths were on the-racks and
the floor was spotless except for a little
dust which had filtered through the
screened windows.
After nearly an hour of futile search
Green was almost ready to admit his hunch
was wrong. He went to the door and
turned for one more look about the interior
and then he noticed something which
seemed out of place. The mattress on the
center bed seemed to be slightly higher
that the other two. (Continued on page 84)
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86 N.C.
lights and passed, went up the road and
turned around between the bus and the
home of the prosecutrix. It drove up
beside prosecutrix who had left the bus and
started home. One of the two occupants
got out. She started to run into a neigh-
bor’s yard. The driver called to the other,
“Grab her.” He chased her, grabbed her,
put his hands over her mouth and_ pulled
her into the car. During this time she
screamed and attempted to get free but
was thrown down to the floor of the
car and the one holding her sat upon her
and held his hand over her mouth. The
car drove off and she was blindfolded. She
asked them what they were going to do to
her, and one replicd that they were going to
assault her. They tried to make her drink
liquor. Some distance away she was taken
out of the car and the driver left for a
while. During this time she attempted to
get away. The car returned and she was
again placed therein. Thereafter she was
criminally assaulted several times by cach
of the occupants and was subjected to other
treatment too vile and repulsive to repeat.
She was likewise beaten and one of the oc-
cupants said that he was going to cut his
initials on her leg and made a mark several
inches long. Finally they drove into
Tennessee, put the prosecutrix off in a
corn field, threatened to kill her if she
looked around, and drove away. She went
to a home nearby about 7:00 a.m. where she
was treated, given food, and later carried
to town and placed on a bus for home.
There was evidence of other occurrences
on the trip it is unnecessary to repeat.
There is likewise evidence in the record
amply sufficient to identify the two defend-
ants as the occupants of the car and the
assailants of the prosecutrix.
Thereafter the defendants were appre-
hended by Federal and State officials and
were first held by the Federal authorities
on a charge of kidnapping. The judge of
the Middle District entered an order 6 No-
vember 1946 releasing the defendants to the
sheriff of Wilkes County for trial in the
State court on the charge of rape.
While the defendants were in the custody
of the officers they made statements in the
nature of confessions. The statements
43 SOUTH EASTERN REPORTER, 2d SERIES
were in the main in substantial accord with
the testimony of the prosecutrix.
When the case came on for trial in the
court below the defendants moved to quash
the bill of indictment (1) for that the
Federal court had no right to release the
defendants to the State court, and therefore
the State court had no jurisdiction to try
the defendants on the capital felony
charged; and (2) for that no women were
summoned to serve at the term of court
at which they were placed on trial. The
motion was overruled.
The defendant Bell offered no testimony.
The defendant Litteral offered testimony
tending to show that he is of such low
mentality that he is incapable of distinguish-
ing right from wrong. This evidence was
sharply controverted by testimony offered
by the State. There was a verdict of guilty
of rape as charged in the bill of indictment
as to cach defendant. Judgment of death
was pronounced as to each and defendants
appealed.
Harry M. McMuillan, Atty. Gen., and
T. W. Bruton, Hughes J. Rhodes, and
Ralph M. Moody, Asst. Attys. Gen., for the
State.
Trivette, Holshouser & Mitchell and
Hayes & Hayes, all of North Wilkes-
boro, for defendant Bell.
Fred S. Hutchins, of Winston-Salem, for
defendant Litteral.
BARNHILL, Justice.
[1] The defendants advance no argu-
ment and cite no authority to sustain their
contention that the court below was without
jurisdiction. The defendants, it is true, were
first held by the Federal authorities on the
charge of kidnapping. It may be that so
long as they were in the custody of Federal
officials the State was powerless to proceed.
Iven so, there is no provision of law, so
far as we can ascertain, which denied the
district judge the right to surrender the
custody of the defendants to the State au-
thoritics for trialun the State court. It was
a matter of comity and courtesy existing
between the courts of the two jurisdictions
and rested in the sound discretion of the
district judge.
STATE vy. LITTERA
Cite as 43 8.E,2d 84 x N.Q. 87
The State court, having obtained custody,
of course had jurisdiction to proceed.
State v. Harrison, 184 N.C. 762, 114 S.E.
830; State v. Davis, 223 N.C. 54, 25 S.E.2d
164; State v. Inman, 224 N.C. §31,-31-S.E;
2d 641; 14 AJ. 435,
[2] Likewise the contention that the ab-
sence of women on the jury panel consti-
tutes a fatal defect in the proceeding is
without merit. The constitutional amend-
ment adopted in 1946 merely makes women
eligible for jury service. Before it becomes
of practical application it needs must be im-
plemented by legislation Prescribing quali-
fications and manner of selection of women
for jury service. See Chap. 1007, Session
Laws, 1947. The panel was drawn and sum-
moned and the grand jury was selected and
impaneled before the effective date of the
amendment and the bill was returned the
day thereafter. Furthermore, so far as the
record discloses the petit jury was selected
without the use of any of the twenty-cight
peremptory challenges available to defend-
ants. Thus they obtained a jury acceptable
2 them. State v. Koritz, N.C, 43 S.E.2d
[3] The exception is without merit for
the further reason the defendants are not
of the same class or sex as’ those claimed
to have been wrongfully excluded. Hence
No discrimination is made to appear, State
v. Sims, 213 N.C, 590, 197 S.E. 176; Mc-
Kinney v. State of Wyoming, 3 Wyo. 719,
30 P. 293, 16 L.R.A. 710; United States v.
Chaplin, D.C., 54 F.Supp. 682.
Ballard v. United States, 329 U.S. 187, 67
S.Ct. 261, cited and relied on by defendants,
discusses the method of selecting Federal
petit and grand juries in States in which
women are eligible for jury service. It is
not controlling here.
[4] Prosecutrix testified that she was kept
from her home all night, maltreated, mis-
used, criminally assaulted, left alone and in
distress in the nighttime in a corn field in
Tennessee. Her testimony was challenged
and its credibility put at issue by the pleas
of not guilty and by extended cross-examin-
ation. Hence the testimony of her mother
that prosccutrix did not return home that
night and she, the witness, so reported to
the officers and the radio station was com-
petent in support of her testimony. State v.
Brabham, 108 N.C, 793, 13 S.E. 217; State
v. Bethea, 186 N.C. 22, 118 S.E. 800; State
v. Brodie, 190 N.C..554, 130 S.E, 205; State
v. Scoggins, 225 N.C. 71, 33 S.E.2d 473;
oy v. Walker, 226 N.C. 458, 38 S.E.2d
[5] To like effect was the testimony of
the witnesses from Tennessee who rendered
her assistance, fed her, and helped her re-
turn home. Her call for help and exclama-
tion, “Oh, God, will somebody help me,” was
a spontaneous utterance prompted by and
tending to show her need of help whith
was a result of the wicked acts of those who
had kidnapped her. This testimony tends
to complete the picture of what happened
that night. Exception thereto cannot be
sustained. State v. Hawkins, 214 N.C, 326.
199 S.E. 284, ‘and cited cases; State v.
Draughon, 151 N.C 667, 65 S.E. 913.
[6] The prosecutrix also made a state-
ment to the officers which was reduced to
writing and signed by her, Although she,
while on the stand, did not refer to this
writing, there was other evidence tending
to identify it as as her written statement.
The court admitted it as corroboratory tes-
timony and was careful to instruct the jury
fully as to the nature of the testimony and
the manner in which it should be considered.
It was competent for the purpose for which
it was offered and was properly admitted.
[7] It may be that there are some parts
of this written statement which do not tend
to corroborate the witness. Even so, the
defendants made no motion to strike or to
exclude such parts of the statement as
might not be competent for that purpose.
They were content to enter a general ob-
jection to the statement as a whole. This
did not require the presiding judge to sift
the writing and eliminate therefrom any
part thereof which in his opinion might not
tend to corroborate, If the defendants ob-
jected to the statement in part and not as a
whole they should have so indicated by
Proper motion or exception. State v. Eng-
lish, 164 N.C. 497, 80 S.E. 72; State v. Wil-
son, 176 N.C. 751, 97 S.E. 496; State v,
Shepherd, 220 N.C. 377, 17 S.E.2d 469;
State v. Britt, 225 N.C. 364, 34 S.E.2d 408.
ovata IVERSITY OF AL’ 7s
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Ries Aart
HE Jamestown, N.C., general
store was quiet. E. J. Swanson,
the aged proprietor, was checking
books. His wife sat near him knitting
industriously. A man who had dropped
in to make a purchase was preparing
to leave. It was 8:30 on the night of
February 19, 1943.
Suddenly the door banged and two
young strangers, one wearing dark
clothes and a slouch hat, the other a
brown jacket and cap, strode in.
Swanson looked up and genially asked
what he could do for them.
The man in the brown jacket de-
manded cigarets and extended a dollar
bill. The storekeeper reached for a
pack and was counting the change
when a voice behind him) growled:
“This is a holdup! Keep quiet and no-
body will, get hurt.”
Turning slowly, Swanson found
himself staring into the barrels of two
revolvers. The man with the slouch
hat quickly covered the other custom-
and Mrs. Swanson. His partner's
attention was centered on the store-
keeper. Brandishing the menacing
weapon, he repeated his demand for
money. Without uttering a word,
Swanson ducked behind the counter.
Instead of reaching for the cash, the
DEATH COUNTER
When two holdup men brandished guns
and demanded his money, E. J. Swanson,
Jamestown, N.C., storekeeper, defied
their threats and reached for a wea
pon instead of the cash. He was in-
stantly felled by two fatal shots.
Police of two states joined the hunt
which ended in capture of the killers.
on anit ee 3
His wife recognized the movement
and remained frozen with fear. In a
flash, the bandit leaned over the coun-
ter and fired two deafening shots at
the storekeeper.
Without looting the cash drawer, the
gunmen whirled and ran from. the
shop, nearly knocking over two girls
who were about to enter. A motor
roared to life and the men sped off into
the darkness.
In the stove Mrs. Swanson bent over
the lifeless body of her husband, while
the customer rushed to a telephone to
notify Sheriff John .C. Story in
Greensboro, seat of Guilford County.
Fifteen minutes later the sheriff,
accompanied by Deputies Ray Nance,
J. W. Donovant, E. E. Ballinger, and
John L. Jones of High Point, arrived
at the murder scene. They were soon
followed by Coroner W. W. Harvey.
Story ordered the crowd to move
LOST NERVE
When the robbery plan was foiled by
their victim, the trigger-crazy bandit,
directly above, resorted to murder. He
then lost his bravado and fled, to-
gether with his two accomplices. Youth
in center was first to be captured, fol-
lowing a second holdup: This led author-
ties to the other members of the mur-
der trio who were identified by wit-
nesses in store (right) at time of crime.
trample the ground which might bear
footprints or tire marks. Then he pro-
ceeded to interview the witnesses.
HE customer who had seen the
bloody drama enacted, recounted
every detail. He and the two girls
whom the killers had brushed aside
supplied descriptions of the youths.
Both were said ‘to be about 20. The
one in the brown jacket who had fired
the fatal shots appeared to be the
taller, was very pale and wore a
sweater under the jacket, the wit-
nesses declared. The other was de-
scribed as rather short, stockier and
weighing about 140 to 159 pounds.
Both were dark haired.
The young women added that they
had seen a third man waiting outside
at the wheel of the getaway car. The
auto was a 1938 blue Ford sedan, they
reported. The driver, clearly visible in
tie.
' Told that the bandits fled without
taking any money, the sheriff. com-
mented: “They lost their nerve.”
He sent one of the deputies to
Greensboro to notify law enforcement
officers in the area to be on the alert
for the murder trio and their car. The
other officers began a thorough search
of the grounds for possible clues.
Meanwhile Coroner Harvey had
completed his examination of the vic-
tim. “Two bullets were fired into the
body,” he announced. “One entered the
base of the brain, the other went into
his heart. Either would have caused
instant death.”
The sheriff studied the scene. “This
looks like the work of some trigger-
crazy hoodlums,” he said. “No hard-
ened criminal would have pulled such
a job and run without looting the
money drawer.”
3 t
beiinithia dal teeens:taldits id. ash ebdine ended ’
i ‘
\ »
“Do you think you would recognize
the men if you saw them again?”
Story asked Mrs. Swanson and the
other three witnesses.
Without a moment’s hesitation all
replied affirmatively.
The deputies whe had been scour-
@m the area in front of the store re-
@..: to report that they had found
no clues to the murder car or the
killers. The ground was too hard with
. frost to hold impressions. _
News of the murder spread rapidly.
Police in the neighboring - cities of
Greensboro and High Point joined the
* search for the bandits. State highway
atrolmen._ not | j
CURRENT DETECTIVE
SEARCH SCENE
Sheriff John C. Story of Greensboro,
N.C, (left), took charge of investigation.
He reconstructed the aged victim's
position as he faced his assailants and
met death (above). Deputy J. W. Dono-
vant (right) lent his able assistance.
radio, watched the principal roads in
the vicinity all night, but saw no sign
of the fleeing vehicle. In spite of all
efforts to seal the area, the trio appar-
ently had slipped through.
Jamestown citizens, aroused by the
- slaying held a mass meeting the next
morning and raised a fund of $100 as
reward for information leading to the
apprehension and conviction of the
killers. The Guilford sheriff's depart-
ment added $200 and Governor J. M.
Broughton increased the total to $500.
At noon Coroner Harvey brought
Story a .32 caliber bullet taken from
Swanson’s brain. The sherif® placed :t
Reviewing the case, he reflected that
the bullet was the only tangible clue
he had aside from the descriptions of
the gunmen and the getaway car. And
unless he could locate the gun that
fired the fatal shots the bullet was
useless.
Moving swittly, the sheriff ordered
handbills printed giving descriptions
of the killers and their auto, and an-
nouncing the $500 reward for their
apprehension. The posters were dis-
patched to officers throughout North
Carolina and neighboring states, “The
men we're looking for are undoubt-
edly from this section,’ Story told
. ee te
mapped their next move. “The crime
is an amateur job. A professional gun-
man wouldn’t have left the scene with-
out getting the money. Neither would
he have sent two bullets into Swan-
son’s body when one was enough to
kill. The men we’re looking for are
trigger-crazy.”
Convinced that the car would prove
the key to the case, Story asked his
deputies to redouble their efforts to
locate it. When this failed, he enlisted
the aid of the State Bureau of Inves-
tigation.
“That car must be found,” the sher-
iff told his assistants. “Wherever it is,
the killers are likely to be. For-all we
know they may be miles from here by
this time—or they may be holed up
safely right in this community.”
It was possible, he added, that the
trio had fled into the hills north of
Greensboro. Guilford and the neigh-
boring counties of Rockingham and
Caswell contain thickly wooded, inac-
cessible sites in which outlaws could
evade capture for months. Many crim-
inals had found safe hiding in this ter-
rain in the past.
H. W. Zimmerman, investigator for
the SBI, arrived in Greensboro early
the next morning and was immediate-
AIDE
H. W. Zimmerman, agent of the N. C.
State Bureau of Investigation, together
with his colleagues. aided local officers
in triple manhunt and obtained convic-
tions for the defendants in the Guilford
County courthouse at Greensboro.
CURRENT © DETECTIVE
ly intormed of all developments in the
case.
“About the only thing we ean do is
to continue our search for the men
and the car,’ Zimmerman said. “I
think they’re in need of money and
may try to pull another job when the
heat dies down.” His words were to
prove prophetic.
Several weeks passed while law en-
forcement officials fruitlessly contin-
ued to scan the streets and highways
for a sign of the 1938 blue Ford sedan.
Then, on March 17, the hunt switched
abruptly to Danville, Va., fifty miles
to the northeast.
QO’ that morning F. R. Bridgers was
just opening his filling station
when a car coasted into the driveway.
Two men, their faces lowered, entered
the station and brandished guns.
“Hand over your money!” the taller
of the two ordered. “Make it snappy
and don’t try any stunts!”
Helpless in the face of their weap-
ons, Bridgers handed over $140. The
tall bandit snatched the money. Back-
ing out of the door, both gunmen
turned and raced to the waiting car,
where a driver, seated at the wheel,
had kept the motor running.
Bridgers grabbed his gun off a shelf
behind the counter, rushed out and
fired once at the fleeing automobile.
The robbers retaliated with three
shots, all of which went wild.
Hastening to a neighbor’s home, the
filling station operator notified Dan-
ville police. Minutes later, Captain W.
H. Jones, head of the Danville detec-
tive bureau, and a score of uniformed
officers arrived on the scene.
“What did they look like?” Jones
asked.
Bridgers said that both bandits
looked about 20 years of age. The taller
man was pale and wore a brown jacket
and chauffeur’s cap. The other had his
hat pulled down over his eyes, but ap-
peared darker and heavier. The at-
tendant had not seen the driver.
Asked about the car he described
it as a 1938 blue Ford sedan with
North Carolina license plates and a
large dent in the rear fender.
Jones suddenly remembered the
“wanted flier” he had received some
weeks before from Sheriff Story ‘of
Greensboro.
“These men sound like the ones
wanted for murder in North Carolina,”
he said. “The descriptions are almost
identical. The car seems to be the
same. The damaged fender should
make it easy to spot.”
Returning to Danville, the captain
ordered a complete description of the
men and car flashed over the police
radio. Officers were instructed to
watch all highways. Next, Jones tele-
phoned Sheriff Story in Greensboro
to inform him of the new crime and
the similarity of the suspects.
In a short time one of the most ex-
tensive manhunts in Danville and
Greensboro history was under way.
Every available officer was put on the
search. Roads were closely guarded.
But no trace of the blue'sedan was
discovered.
‘In Danville, Police Chief Major Ural
H. Watson mobilized his entire force
to comb the city’s streets and alleys.
A similar order was issued in Reids-
ville, located between Greensboro and
Danville. Police Chief R. A. Allen told
his men to be constantly on the alert
for the fugitives’ car.
After a thorough but unsuccessful
search of busy thoroughfares in Dan-
ville, Captain Jones and Detective
(Continued on page 62)
st bh
Soca wel ie RE al a
120
facts and result of the decision demon-
strates its present inapplicability.
The case bears some likeness to our re-
cent decision in Youmans Vv. West, S.C., 28
S.E.2d 47, where death of a legatee on
ing the administration of the estate age
a legacy and it went over ratably to t :
survivors of the class under the terms 0
the will. That controversy was ruled by ap-
plication of the language of
this.
the will, as is
8.C 29 SOUTH EASTERN REPORTER, 2a SERIES
The exceptions are sustained and the
judgment reversed; appellant takes the
contested fund to the exclusion of respond-
ents; and the case is remanded to the Cir-
cuit Court for further proceedings con-
sistent herewith.
d
BAKER, C. J. FISHBURNE an
STUKES, JJ., and SEASE and HENDER-
SON, A. A. JJ., concur.
STATE v. BIGGS N.C.
29 8.E.2d 121 121
224 N.C. 23
STATE v. BIGGS et al.
No. 649.
Supreme Court of North Carolina,
March 1, 1944.
{. Criminal law €=517(1)
The admissibility of a confession is
dependent upon its voluntariness.
2. Criminal law €=1158(4)
Where evidence in respect of volun-
tariness of statements made by defendant
and offered as confession is merely in con-
flict, trial court’s determination is conclu-
sive on appeal.
3. Criminal law €=736(2), 1158(4)
Whether given facts amount to such
threats or promises that they make con-
fession involuntary and inadmissible is a
question of law, and decision of trial judge
thereon is reviewable on appeal.
4. Criminal law €=519(1)
Where a person in authority offers
some suggestion of hope or fear to one
suspected of crime and thereby induces a
statement in nature of a confession, such
statement is “involuntary” in law and in-
competent as evidence.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Involuntary Statement”.
§. Criminal law €=519(1)
A free and voluntary statement in
nature of a confession is deserving of
highest credit because it is presumed to
flow from strongest sense of guilt, but
statement wrung from mind by flattery of
hope or by torture of fear merits no con-
sideration.
6. Criminal law €=531(1)
Confessions are prima facie voluntary
and admissible unless party against whom
they are offered alleges and shows facts
authorizing a legal inference to contrary.
7. Criminal law €=519(3)
Circumstances under which defend-
ants, while held in Virginia, were induced
by North Carolina authorities to make
Statements in nature of confessions after
having previously repeatedly refused to do
so, required conclusion that statements
Were involuntary and incompetent in sub-
sequent first-degree murder prosecutions.
29 S.E.2d—8%
8. Homicide €=338(3)
Where defendants’ statements in na-
ture of confessions were admitted over ob-
jections although incompetent, conviction
of first-degree murder was unauthorized
notwithstanding that there was ample evi-
dence to convict without such statements.
DEVIN, SCHENCK, and SEA-
WELL, JJ., dissenting.
——__~>———
Appeal from Superior Court, Guilford
County; W. H. S. Burgwyn, Special
Judge.
Elmer Hardie Biggs, Jr., William Dal-
ton Biggs, and John Edgar Messer were
convicted of first-degree murder, and they
appeal.
New trial.
Criminal prosecution tried upon indict-
ment charging the defendants with the
murder of one E. J. Swanson.
There is evidence tending to show that
on the night of 19 February, 1943, between
8:30 and 9:00 P. M., the three defendants
(two brothers, one 20 years of age, the
other younger, and the third 19 years old)
appeared in an automobile near E. J.
Swanson’s store and filling station at
Jamestown, N. C. They tried to stage a
hold-up and robbery. Elmer Hardie Biggs,
Jr., remained at the wheel while the other
two defendants entered the store. In ex-
ecuting the plan, John Edgar Messer shot
Swanson and killed him. The two defend-
ants then “broke and ran out the door”.
They re-entered the automobile, which was
waiting ’on the outside, and all three of the
defendant§ made a get-away. They were
next discovered, 19 March, in jail in Dan-
ville, Va., there charged with having com-
mitted highway robbery in that State on
16 March, 1943.
On several occasions between 19 and 31
March, various officers of Gilford Coun-
ty and Messrs. H. W. Zimmerman and Guy
L. Scott of the State Bureau of Investi-
gation went to Danville and questioned the
defendants in regard to the Swanson mur-
der. They stated on each occasion that
they had no statement to make; that they
desired to talk with an attorney, and they
denied any connection with the crime un-
til 31 March, when about a dozen wit-
nesses and officers from this State, includ-
ing the Solicitor of the 12th Judicial Dis-
trict, were in Danville, and the defendants,
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What bearing could they have had on the
Swanson murder, except to induce an ex-
Pression on the subject different from the
repeated protestations of the defendants
that they had no statement to make in re-
spect of the matter?
[7] We think the statements in the
nature of confessions made by the defend-
ants must be regarded as arising out of
circumstances which render them involun-
tary, and, therefore, incompetent as_evi-
dence. The decision in State v. Living-
ston, supra, and the cases there cited,
would seem to be in direct support of the
Position, To say that no inducement was
offered by “those in authority” would be
to deny the natural import of the language
used and the suggestions made, and withal
the situation created by the presence of
the solicitor. The effort of the trial court
to obtain some satisfactory explanation of
the sudden change on the part of the de-
fendants appears to have been fully justi-
fied. The case is equally as strong, if not
Stronger, than State v. Anderson, supra,
where a new trial was granted because of
similar suggestions made by a State’s wit-
ness.
[8] It is true, there is ample evidence
to convict the defendants without their
statements in the nature of confessions.
But this in no way affects the competency
or materiality of the statements. They
undoubtedly weighed heavily against the
defendants. The law commands the death
penalty only after a hearing free from er-
ror.
On the record as presented, a new trial
Becms necessary. It is so ordered.
New trial.
DEVIN, Justice (dissenting).
It was within the province of the trial
sudge to determine whether the admissions
of guilt on the part of the defendants, of-
fered in evidence, were vountarily made,
or were induced by promises of leniency.
This was a preliminary question of fact
for his decision. Before ruling thereon,
in accord with correct procedure, in the
absence of the jury, the judge heard all
the testimony of the defendants and of the
State’s witnesses bearing on the compe-
tency of this evidence. He was in posi-
tion to judge of the credibility of those
who deposed in his presence. It was his
duty to determine and to declare the fact.
20 SOUTH EASTERN REPORTER, 24 seRtns
As the result of his careful consideration
of this testimony, he has found the fact to
be that the admissions of guilt were volun-
tarily made.
The only ground upon which this court
can reverse the judge’s finding is that there
was no evidence to support it. As the
jurisdiction of this Court on appeal is con-
fined to matters of law or legal inference,
Art. IV, sec. 8, the only matter of law pre-
sented is whether there was any evidence
to sustain the ruling appealed from.
This principle was stated by Justice
Reade in Cardwell v. Cardwell, 64 N.C.
621, as follows: “We can no more review
the finding of a Judge when it is his prov-
ince to find facts, than we can review the
finding of a jury.” In State v. Andrew,
61 N.C. 205, Chief Justice Pearson said:
“So, whether there be any evidence tend-
ing to show that confessions were not
made voluntarily, is a question of law.
But whether the evidence, if true, prove
these facts, and whether the witnesses giv-
ing testimony to the court touching the
facts are entitled to credit or not, and in
case of a conflict of testimony which wit-
ness should be believed by the court, are
questions of fact to be decided by the
Judge; and his decision can not be re-
viewed in this court.” In State v. Fain,
216 N.C. 157, 4 S.E.2d 319, 320, the rule
was stated in this language: “It is the
established procedure with us that the com-
petency of a confession is a preliminary
question for the trial court, * ¥* * to
be determined in the manner pointed out
in State v. Whitener, 191 N.C. 659, 132
S.E. 603, and the court’s ruling thereon
will not be disturbed, if supported by any
competent evidence.” And in the recent
case of State v. Hairston, 222 N.C. 455, 23
S.E.2d 885, 886, it was again declared to
be the law that “The competency of a con-
fession is a preliminary question for the
trial court, and the court’s ruling will not
be disturbed, if supported by any compe-
tent evidence.”
Applying these well settled rules to the
case at bar, I am unable to agree with the
conclusion reached in the majority opin-
ion. A careful consideration of all the
testimony heard by the Judge below leads
me to the conclusion that there was evi-
dence to support his finding. True there
was a conflict in the testimony, but it was
the judge’s province to determine the fact
upon the preliminary question presented.
I think he should be upheld.
|
b
STATH ¥. BIGGS N.O. = 455
29 S.E.2d 121
Each of the three defendants in the
hearing before the judge stated they were
induced to confess by the promise made to
them by Mr. Wilson, the State Solicitor,
and by Mr. Zimmerman, a member of the
State Bureau of Investigation, that if they
would admit their guilt, the Solicitor would
“put in” a bill of indictment for second de-
gree murder and they would get 25 to 30
years, and in all probability would be out
in five years. But these statements were
denied by both Mr. Zimmerman and Mr,
Wilson. Zimmerman testified, “No one in
my presence made any threat against the
defendants before they made a statement,
nor were any promises made or offers to
extend any leniency to them, and no one
said anything to them about. what they
would be tried for except murder in the
first degree.” He further said, “I made
no promise of any kind to them as to how
the charge against them would be handled.”
True this officer in the course of a pro-
longed cross-examination by two attorneys
used the word “scheme” in referring to his
purpose in questioning the defendants and
Stating (correctly it seems) that the crime
for which they were in jail in Virginia
Was a capital felony in that state, but this
word, to which a sinister significance is at-
tributed, was apparently suggested by the
questioner rather than chosen by the wit-
ness, for in the same connection he said
his purpose was not to get a confession
nor to induce them to come to North Caro-
lina. He repeatedly said no promises of
leniency were made. I do not think this
single expression, in whatever sense it was
used, should be held in law or in fact suf-
ficient to nullify or contradict his previous
testimony. Hadley v. Tinnin, 170 N.C. 84,
86 S.E. 1017.
Mr. Wilson testified that no promises
of leniency were made, but that on the
contrary he warned the defendants they
would be tried for murder in the first de-
kree, and, if they were not guilty, not to
make any statement.
Deputy Sheriff Nance testified the de-
fendants were advised that any statement
made by them would or could be used
against them, and that “no threat or re-
ward or promise or anything else was
made.” One of the defendants testified:
“I don’t claim Mr. Donovant, Mr. Jones,
Mr. Nance or Mr. Scott or any other of-
ficer made any promises or threats that
caused me to make the statement which
I made over there,” but asserted he was
UNIVER
i
induced only by the proposition made by
the Solicitor in the presence of Mr. ‘Zim-
merman, as previously noted.
It is worthy of note that at no time have
the defendants denied their guilt. Neither
in response to the questioning officers, nor
in their statements to the judge did either
of them deny they were the ones who shot
Mr. Swanson to death. They refused to
make any statement to the officers until
after they had been identified by four eye
witnesses of the crime. Here was the
situation: On the night of February 19,
1943, Mr. Swanson, in his little store in the
village of Jamestown, in the presence of
his wife and a friend, was shot to death
by two young men in the attempt to hold
up and rob him. A third man waited in
a car outside. Two other witnesses saw
the two men run out of the store after
the shooting and get in the car, and saw
the third man under the wheel as they
drove away. A few weeks afterwards
three men answering their general descrip-
tion were arrested in Danville, charged
with the robbery with firearms in Vir-
ginia (holding up a filling station). The
North Carolina officers went to Danville
and questioned the suspects. They refused
to make any statement. Then the four
witnesses from Jamestown were taken to
Danville to see if these suspects were the
ones they had seen in Jamestown. These
witnesses identified the defendants—picked
them out of a group of other prisoners—
and told them they recognized them.
Shortly thereafter, and after the three de-
fendants had privately conferred together,
they admitted their participation in the
crime.
The fact that the defendants were young
men (one of them was 24, record page 47)
may not be considered as tending to render
their confessions inadmissible in evidence
on that ground. There is no suggestion
they were not sui juris and in all respects
competent. Their being charged with two
capital felonies in different states would
naturally lead them to inquire what could
be done with them. According to the rec-
ord the officers informed them correctly.
They were told that under the Virginia
law they could be sentenced to the electric
chair or life imprisonment; that in North
Carolina they would be tried for murder
in the first degree, and it was for the jury
and the court to say what would be done
with them. That might be considered as
reason for waiving extradition, but not for
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His accomplices, he said, were his:
brother, Elmer Hardie Biggs, and
John Edgar Messer, a close friend.
“Where are they now?” Story de-
manded.
“In Washington. They’ve gone to
visit my father, who works as a guard
at one of the government buildings.”
Story immediately placed-a call
with metropolitan police in Washing-
ton, D. C., and requested that they
pick up the two suspects. He supplied
them with their descriptions and the
address of Biggs’ father.
Late that afternoon the long-
awaited call from Washington came
in. The desk sergeant reported that
young Biggs, Messer and the elder
Biggs had left Washington in a Plym-
outh pickup truck, according to in-
formation obtained from next door
neighbors of the Biggs boy’s father.
Apparently they were headed for
Virginia.
“That means, then, that they’re
probably on their way back to North
Carolina,” Story told Zimmerman. “In
that event they’ll more than likely
come through Danville. We’ll have a
little surprise party waiting for them
when they get there.”
The officers left for Danville, where
they secreted themselves in some
bushes near the mee way. Minutes
and hours ticked by. But there was no
sign of the pickup truck. In the light
of the moon, they could get a fairly
clear view of each passing motorist.
It was. almost daybreak the next
morning when the tired, drowsy of-
ficers heard the roar of a motor in
the distance.
W HEN the vehicle reached the
spot where the officers were
stationed, they saw that it was a
Plymouth pickup truck. But the only
person in the truck was the driver,
who appeared to be an elderly man.
On the back of the truck was a can-
vas cover. d
Quietly, the officers got into their
car and soon overtook the truck,
motioning the driver to pull over on
the shoulder.of the road. The officers
slid out and approached the truck
cautiously, guns in readiness. They
were taking no chances.
The driver of the truck stepped out
and wanted to know why he had been
stopped.
“We're looking for two young fel-
lows who were Gr Mageay to be travel-
ing in a truck like this,” Story ex-
plained, eyeing the old man closely.
“Their names are Elmer Biggs ahd
John Messer. Know them?”
“W—w-hy no,” the man sputtered.
“What you got on the back of the
truck?” Zimmerman asked.
“Oh, just some boxes and stuff,”
was the answer.
Zimmerman and the others walked
around to the rear of the truck. The
SBI agent grabbed the canvas cover
and flung it back. Lying on the floor
were' two cowering young men, one
of whom wore a cap and brown
leather jacket. Their eyes blinked
wildly.
“Come out with your hands up!”
Zimmerman demanded.
Slowly the frightened men crawled
out, shaking the dust of the long .tri
from their dingy clothes. A searc
of their pockets revealed a .25 auto-
matic and an owl-head revolver.
Rushed to the Danville Police De-
partment, they admitted their names
were Elmer Biggs and John Messer.
Biggs’ father, who had been driving
the truck, was ordered held on a
charge of aiding and abetting in the
escape of the fugitives.
When confronted with William
Biggs’ statement, the other two ad-
mitted their part in the Barber rob-
bery, but denied participation in the
Swanson case.
“We can settle that score very
easily,” Zimmerman said. “Bring
Mrs. Swanson, Bundy and the Ray
sisters here,”
The next day the four eye-wit-
nesses to the Swanson crime were
carried to Danville and ushered into
the jail. One by one they pointed out
the three youths from a group of six
prisoners as the ones who were in on
the murder of Swanson.
Realizing their plight, they broke
down and confessed their guilt. The
three youths said they had left their
homes in Reidsville on the night of
February 19 to see if they could se-
cure work on the construction of the
Army Air base near Greensboro. Un-
able to get employment, and running
short of money, they decided to pick
up some easy money.
Heading out of Greensboro, they
bd to Jamestown and saw that the
wanson store might be an easy tar-
get. They rode by the place three
times to look it over and then pulled
up in front of the store.
Elmer Biggs said that he waited in
the car while William and John Mes-
ser, 21, entered the store. They had
agreed not to do any shooting, but
when Swanson made an effort to get
his pistol, Messer got mad and let
him have it. Then, losing tneir nerve,
they ran out of the store without tak-
ing time to rob the cash register. ;
“We laid low for three weeks until
the Swanson murder had sort of
blown over,” William Biggs con-
fessed. “Then we decided to go into
Virginia ‘and pull a robbery there. We
were out of work and needed money.
The Barber filling station looked to
be an easy layout.”
After the Barber robbery, Elmer
Biggs and John Messer left to visit
Elmer’s father and got him to drive
them back to North Carolina in the
truck, realizing that they might be
seen by police if they rode on a bus
or a train or hitched a ride.
The young, self-confessed killers
were convicted of first degree mur-
der in the Guilford County Superior
Court at Greensboro on May 22, 1943,
and _ were sentenced by Judge W. H.
S. Burgwyn to die in the lethal gas
chamber.
An appeal to the State Supreme
Court won them a new trial on tech-
nical errors.
At the second trial, held on April
24, 1944, they were again convicted
of first degree murder and sentenced
by Judge Don Phillips to be put to
death. A second request for a new
trial was rejected in December, 1944,
by the State Supreme Court.
Legal stays kept the holdup trio
alive until March 9, 1945, when they
paid with their lives in the lethal gas
chamber for the wanton slaying of the
kindly merchant.
A NA AR eA NR a NA te ete 8 ne Se
Wek
GANGDOM LINKED TO DEATHS
Ethel Sparks, 22, of East St. Louis, I], whose body was found in
a shallow grave with that of George Tyson, 38, also of East St.
Louis. Police believe pair may have been slain in a new outbreak
of big-time gang warfare. During the autopsy, surgeons found
$3200 hidden in the brassiere of the unfortunate young woman.
\|
67
een ae
122 (ONC.
on this last day, after conferring among
themselves, told the officers that they had
planned to rob the Swanson store on the
night of 19 February, and in doing so Mr.
Swanson was shot.
No charges had been preferred against
the defendants in this State at the time,
and their statements were not reduced to
writing.
The defendants testified on the voir dire
that they were induced to make their state-
ments in the nature of confessions because
“Mr. Zimmerman and Mr. Wilson, the so-
licitor, came back and he told us he was
going to put this bill of indictment for sec-
ond degree murder which carried a pen-
alty of twenty-five to thirty years in our
home State and at most, in all probability,
we would be out in five years. * * *
Mr. Wilson and Mr. Zimmerman both
made that statement.”
The officers denied that any such induce-
ments or offers were made to the defend-
ants, and the solicitor testified that he went
to Danville to make sure that no unfair
method was employed by anyone in under-
taking to identify the perpetrators of the
Swanson murder.
Aside from the contradictory evidence,
heard on the preliminary inquiry, of which
there was quite a bit, the following undis-
puted testimony is culled from the record
and the State’s witnesses:
Deputy Sheriff Ray Nance: “By the
Court: Was your purpose in going there
together with the solicitor and all of you
to obtain a confession from these men?
“The witness: I wouldn’t say that was
our direct purpose there. * * * We
were asking them to make a_ statement.
* * * They asked to be permitted to talk
together, and they were permitted to talk
together, and after that they made a state-
ment.”
A special agent for the State Bureau
of Investigation, H. W. Zimmerman, tes-
tified that he told the defendants “they
had been arrested on a charge in the State
of Virginia for which the penalty was life
imprisonment or the electric chair. * * *
A part of my scheme was to tell them that
under the law in Virginia they were liable
to pay the death penalty. I told them it
was a capital offense in Virginia. * * *
I told Elmer Hardie Biggs that I didn't
like the word confession; that we were
not trying to get a confession out of them.
I wanted the truth, * * * You can call
20 SOUTH BASTERN REPORTHR, 2d SERIES
it a confession. I call it the truth. * * *
When I went in the room where all three
of the defendants were, Elmer Biggs asked
the question something about first degree
and second degree charge in North Caro-
lina. If I remember correctly, I think 1
said, ‘If you three boys are charged with
the murder of Mr. Swanson, * * * the
solicitor will draw a bill for murder in the
first degree. * * * As to what will be
done with you will be left to the jury and
the court. * * * After that, the request
was made that the two Biggs boys be per-
mitted to talk to Messer alone. The re-
quest was granted, and they went into the
room where Messer was and were there
three to five minutes. Elmer Hardie Biggs
came out and called for Ray Nance. Mr.
Nance and myself, Mr. Jones, Ballinger,
Donovant and Mr. Watts went into the
room where these three boys were, and
John Messer made a statement in the pres-
ence of the two Biggs boys.’ * * *
“By the Court: Can you give me any
satisfactory answer why these three young
men or two young men, or any of them,
would sit there, after having stated time
and time again that they had no statement
to make, and would all of a sudden turn
around and say, ‘I want to make a state-
ment that will hang me’? A. Your Hon-
or, I cannot. Q. I cannot understand
that.”
Elmer Hardie Biggs, Jr., one of the de-
fendants, testified on the voir dire: “Mr.
Zimmerman said, ‘What I can’t understand
is why’, he was hitting the desk all the
time, he said, ‘I can’t understand why an
intelligent young man like you, why you
can't sce the difference in twenty-five to
thirty years in your home State and life
imprisonment at the best in another State
than your own.” The witness Zimmer-
man, though present, was not recalled on
the preliminary inquiry to deny or to re-
fute this statement.
Upon all the evidence heard in the ab-
sence of the jury the trial court held the
statements to be voluntary and admitted
them in evidence. Exception.
Verdict: Guilty of murder in the first
degree as to each defendant.
Judgments: Death by asphyxiation as
to each defendant.
The defendants appeal, assigning errors.
Harry M. McMullan, Atty. Gen., and
George B. Patton and Hughes J. Rhodes,
Asst. Attys. Gen., for the State.
STATE v.
BIGGS N.C. 123
29 S.E.2d 121
P. W. Glidewell, Sr., of Reidsville, for
defendant William Dalton Biggs, appel-
lant.
Robert R. King, Jr., of Greensboro (ap-
pointed by the court), for defendants John
Idgar Messer and Elmer Hardie Biggs,
Jr., appellants.
STACY, Chief Justice.
{1] The question for decision is wheth-
er the statements in the nature of con-
fessions made by the defendants were
properly admitted in evidence. State v.
Exum, 213 N.C. 16, 195 S.E. 7. The an-
swer depends on whether the law pro-
naunces them voluntary or involuntary.
State v. Farrell, 223 N.C. 804, 28 S.E.2d
S00,
[2-4] It is conceded that if the evi-
dence in respect of the voluntariness of
the statements were mercly in conflict, the
court’s determination would be conclusive
on appeal. State v. Hairston, 222 N.C.
483, 23 S.E.2d 885; State v. Smith, 221
N.C. 400, 20 S.E.2d 360; State v. White-
ner, LOL N.C. 659, 132 S.E. 603; State v.
Christy, 170 NIC. 772, 87 S.E. 499; State
v. Page, 127 N.C. 512, 37 S.E. 66; State
v. Burgwyn, 87 N.C. 572. Equally well
established, however, is the rule that “what
facts amount to such threats or promises
as make confessions not voluntary and ad-
missible in evidence is a question of law,
and the decision of the Judge in the court
below can be reviewed by this court”.
State'v. Andrew, 61 N.C. 205; State v.
Manning, 221 N.C. 70, 18 S.E.2d 821;
State v. Crowson, 98 N.C. 595, 4 S.E. 143.
And further, where a “person in authority”
offers some suggestion of hope or fear,
State v. Livingston, 202 N.C. 809, 164 S.
KE. 337, State v. Crier, 203 N.C. 586, 166
S.E. 595, to one suspected of crime and
thereby induces a statement in the nature
of a confession, the decisions are at one
in adjudging such statement to be involun-
tary in law, and hence incompetent as: evi-
denee. State v. Anderson, 208 N.C. 771,
182. S.E. 643; annotation 7 A.L.R. 423.
What are the effective considerations
here?
The defendants were in jail at Danville,
Virginia, under a charge of highway rob-
hery committed in that State on 16 March,
143. Officers from this State went to
Danville to interrogate them in respect of
the Swanson murder at Jamestown, North
Carolina, on the night of 19 February,
1943, They were questioned on a number
of occasions, including at the end the
greater part of two days, March 30th and
31st, and they repeatedly told the officers
they had no statement to make in respect
of the Swanson case. Finally, they made
the statements in the nature of confessions
as above set out. Over objections, these
statements were admitted in evidence
against them.
[5,6] A free and voluntary statement
in the nature of a confession is deserving
of the highest credit, because it is pre-
sumed to flow from the strongest sense
of guilt, but any statement wrung from
the mind by the flattery of hope, or by
the torture of fear, comes in such question-
able shape as to merit no consideration.
State v. Patrick, 48 N.C. 443; State v.
Roberts, 12 N.C. 259. “Confessions are to
be taken as prima facie voluntary and ad-
missible in evidence, unless the party
against whom they are offered alleged and
show facts authorizing a legal inference
to the contrary.” Dillard, J., in State v.
Sanders, 84 N.C. 728, 729; State v. Alston,
215 N.C. 713, 3 S.E.2d 11; State v. Grass,
223 N.C. 31, 25 S.E.2d 193.
As bearing upon the influence which
produced the defendants’ statements in the
nature of confessions, whether prompted
by the love of truth or induced by hope or
fear, the record poses the following per-
tinent inquiries: Why was it a part of
Zimmerman’s “scheme” to tell the defend-
ants “they were liable to pay the death
penalty” in Virginia? Why did he tell
them that in North Carolina “as to what
will be done with you will be left to the
jury and the court’? What impression
did he intend to leave by these statements?
Just before the admissions were made,
Elmer Biggs wanted to know “something
about first degree and second degree
charge in North Carolina”. He had al-
ready been informed “that under the law
in Virginia they were liable to pay the
death penalty”. Where did Elmer Biggs,
a boy 20 years of age, get his knowledge
of criminal procedure in this State and
the idea that under the North Carolina
law, second degree murder carries a maxi-
mum penalty of 30 years, and, in addition,
the parole system obtains here? What
was the purpose of discussing these con-
siderations in connection wtih the Virginia
statute, Va.Code 1942, Sec. 4405, which
prescribes death or life imprisonment as
punishment for robbery with fire arms?
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Grand Jury comes into Court and returns in a body a true bill of
| indictment.
i . Defendant comes into cout and pleads hot Guilty, amd tho Pollowing |
a |
“gary is impaneled: W. R. Anderson, D. 8, Whitt, Hubert Shotwell, Clyde McSherry, |
‘sam 6 Green, H. G. Barnette, W. A. Wiley, Henry Ramsey, Hester Long, S. W. Melton,
| ed J 5 a te e
| ilty of hiurder
iT, O. Ford, Roy Coats, and G. W. aa who rendered a verdict of Gu y Ie
lie
; in the First Degree.
| STATE ;
-VS- ). © JUDGMENT...
| )
EMANUEL BITTING ALIAS )
| SPICE BIITING:. )
| f
it ca)
i This cause coming on to de heard before: the Genesee Judge and a jur eRe
| January Term, 1934, of Person Superior Court _upon bill of indictment charging Rnamel
Bitting alias Spice Bittings with the mufder of 7, M. Clayton and the jury having
| been duly chosen, sworn and empanelled, after hearing the evidence of the witnesses
| the argument of counsel and the: change the Court retires to consult of this verdict
afterwards returns into Court and say for their verdict that the said Emanuel Bitting.
| alias Spice Bitting is guilty of murder in the first degree, nnd the jury being
polled each guron says for himself that said defendant is guilty of murder in the
first degree, it is therefore adjudged that the said dofendant is guilty of murder in
the first degree, and it is ordered and adjudged that said Emanuel Bitting alias
cpice Bitting be by the Sheriff of Person Co. forthwith conveyed to the Statets
Prison in Raleigh, N. C. there to be securély held until Fridayy the 30th. day of
March, 1934, when and where betwesn the hours of 6 A. M. and 6 P. M. he the said
i
Emanuel Bitting alias Spice Bitting shall suffer death by electrocution in the man |
ner now provided by laws
| This Jan. 24th, 1934.
W. A, Devin
Judge Presiding.
— Defendant moves to set aside verdict motion overruled and defendant ox- |
copts. Defendant moves in arrest of judgment. Motion overruled and defendant ox-
|
cepts. Sentence and Judgment pronounced and defendant excepts and appeals to Suprend
If
iH
Court. Notice glven in open Court and accapted by State. Appellant allowed 50 days
if
TAM 41448 & AA K me
_ JANUARY TERM, 1934, .
Wednesday, January 24th, 1934, Court met at 9:30 o'clock A. M. amd the
following proceedings had:
| ,
|
|
STATE OF NORTH CAROLINA, IN THE SUPERIOR GOURT,
| PIRcON couUTY. JANUARY TERM, 1934. |
: | | |
STATE ) . |
! oo WRIT OF VSNIRB FACIAS, | _
ENANUEL (SPICE) srrriNes} |
| TO THE SHERIFF OF PSRSON COUNTY, GREETINGS: |
i . . . . 5 . ; . |
i The Grand Jury, at the January Term of Court, 1934, -having returned a true |
' otdd charging the defendant Emanuel (Spice) Bittings with the capital offense of
i
| Murder in the First Degres, and the said defendant having been arraigned im open
i
Court and having entored a plea of not guilty, and ths Court deeming it necessay to
| a fair and impartial trial of the prisoners, that there be a special venire of fifty |
|
a good and lawful men qualified, bo .act.as jurors, in Person County ordered for the |
| ence
Ve ct said dofendant: \
YOU ARE, THEREFORE, HBR EBY ORDSRED to summons fifty (50) good and lawful
men of your County, of good Chatacter, and qualified to act as jurors in your County |
, to appear before the undersigned Judge of tha Superior Court in the Court Room, in
Person, at 9:30 a.m. on the 24th. day of January, 1934, to be sworn anid examined as
| to thoir fitness to serve in the above entitled case and to be respectively accepted |
or released under the direction of the Court, and they are coger in open Court, and
|
|
| have you this writ returned to the Clerk of the Superior Court on the 24th. day of
| January, 1934, with the names of the jurors summoned,
HERSIN FAIL NOT,
This the 22nd. day of January, 1934.
W. A. Devin ;
Judge Presiding. —
+ LTS
List of Jurors summoned: D. &, Whitt, W. A. Wiley, G. Ww, Dixon, L. L. Long
|
W. W. Harris, S. W. Melton, J. L, Morris, R. C, Ford, J. C,. Wrenn, . Nat Warren,
Dave Long, W. H. Rudder, @arl Clayton, Nat Jordan, G. i. Crowder, Sam Wilkins, sas
| Weldon G. Clayton, Hester Long, Charlie Oakley, H. E. Barnette, W. H. Bray, Henry |
Romsey, Roy Coats, Sam Green, E. M, Wells, FT. 8, Wells, J. F, Brandon, J. H,
Lockhart, _ W. MN. Scott, B. R, Barker, R. C, Scott, Clyde McSherry, Jacob Thompson,
| E. L. Howard, Fletcher Carver, N. L. Winstead, Harvey Winstead, W. P. Dixon, E, Mi
|
|
| f
| Wrenn, R. T. Winstead, W. P. Rogers, J. C. Woody, J. W. Whitfield, J, D. Winstead,
|
WJrs. J. BR. Whitfield. WeeR Rertan TT NN ma timan a a
BITTINGS, Emanuel ("SpPicett), black electrocuted NCSP (Person) on September 28, 193l.
[0 estiaautin-+---conie tenner inaegher erates JANUARY TERM, 1934, 0. leah ee
NORTH CAROLINA OS IN THE SUPERIOR COURT
“a PERSON COUNTY -) CERTIFICATE OF COUNSEL
)
~vs-
EMANUBAL BITTINGS)
' | TO THE HONORABLE W. A DEVIN, JUDGE of the Buperior Court
i .
' — : This is to certify that I have examin the case of the above named defendant, Emanuel
| Bittings, and believe that he has a reasonable cause for the appeal prayed.
a” ‘
This 26th. day of January, 1934.
) Philip A. Sscoffery
te ‘s “hy ATTORMST
NORTH CAROLINA IN THE SUPERIOR COURT
PERSON COUNTY. fee
a STATB OF NORTH CAROLINA ;
Resear | -VS- ORDER “aia —
Mes Se
| | BMANUEL BITTINGS ) Se
i ;
Oe a ee
Upon reading the foregoing affidavit of defendanr and certificate of counsel,
serait it is hereby ORDERED, that said defendant Bmanuel Bittings, be granted the appeal to
‘ gis “ : ‘ ; $A POG. oti Poe ake td sf ; sak : v.38 42 ; a
the Supreme Court of North Carolina, as prayed, without giving the security for cost
°
This 26th. day of. January, 1934,
| tb Bs veteg Loe on, ® opty’ | W. A. Devin
| de ee if _ JUDGE PRESIDING
i
| ee @@ 8 & OO Bee
| 4 eee eee &© 8-8 6e @
1
boat’. fg: .4s. THE STATE'S’ PRISON
mone nese dion i RALEIGH, NORTH CAROLINA
a
i}
TO c. L. BROOKS, CLERK OF THE SUPERIOR COURT OF PERSON COUNTY:
We do hereby certify that Walter Thaxton was duly electrocuted on Friday the
23 day of March, 1934, in accordance with law and in’ execution of the judgment
against him at the January 1934 term of the Superior Court.of Person County, which
judgment, on appeal,.was affirmed by the Supreme Court, and which date was fixed for
the @lectrocution by the Governor in accordance with law. ~ .
Witness our hands this the 23 day of March, 1934, :
5 H. H. Honeycutt .
Warden of State's Prison.
Geo. §S. Coleman
?
int te eee mente: ee Physician of State's Prison.
The following persons were prasent and acted as witnesses:
; D. T. Ferry W. G. Bradsher
John Gilbert _. P. D, McLean
John Barnette BRE ERA” hs gi Joe L. Crowell
Oe Te Ballers etme fed 7 ‘' Kyle Jones
G. W. Watkins
1
NORTH CAROLINA —
PERSON COUNTY
STATE OF NORTH CAROLINA
: | -VS- AFFIDAVIT
Sa a a
EMANUSL BITTINGS.
SS
Witness:. B. Ee. Jackson
| Subscribed and sworn $5 pefore me
this 26th. day of January, 1934.
( SBAL) "my oima I. Mitchell
~ NOTARY PUBLIC
|
| My commission expires October 2énd, 1934.
: BO, |
i | he ma
IN THE SUPERIOR COURT
JANUARY TERM, 1934.
MANUEL BITTINGS, defendant in the foregoing action desires an appeal to the
Supreme Court of North Oarolina, from the verdict and sentence in said action in the
above mentioned Court, inasmuch as he is advised by counsel that he has a reasonable
| casue for the appeal prayed and furthermore said appeal and this application is made
in good faith, Defendant being further sworn says that he is wholly unable to give
security. or make the necessary deposit ag required by law for the costiof said appeal
and therefrom, prays that he may be allowed to prosecute said action aS 4 paupere
mi eiiel Bitting
DEFENDANT.
ek ht ie ha ot by
114 46 SOUTHEASTERN REPORTER. (N.C.
tions of deceased made about the middle of
Monday afternoon. Before making the state-
ment as to who shot him, deceased said:
“Tam getting weaker. I believe I am go-
ing to die.” Witness said he hoped not.
Deceased said: “Yes; he thought he was
bound to die. The doctors thought he could
not possibly get well.” To all of which pris-
oner duly excepted.
The declarations of the deceased were
clearly competent. Every condition upon
which dying declarations are made compe-
tent were shown to exist. The ruling of his
honor is sustained by a long and uniform
current of decisions of this court. State v.
Dixon, 131 N. C. 808, 42 S. E. 944. We have
examined the other exceptions to the admis-
sion of testimony. We concur with his hon-
or in respect to them.
The prisoner requested his honor to charge
the jury “that upon the evidence the jury
cannot find a verdict of murder in the first
degree.” This was declined, and prisoner
excepted. His honor could not properly
bave given the instruction. According to the
decisions of this cotrt, there was ample evi-
dence, if believed by the jury, to show pre-
meditation. Similar instructions were asked
in regard to verdict of murder in the second
degree and manslaughter, and declined. The
ruling upon the first prayer disposes of these.
Ilis honor might well have given the in-
struction as to manslaughter, but, of course,
the prisoner cannot complain of bis failure
todo so. In no possible point of view could
they find the prisoner guilty of manslaugh-
ter. His honor’s charge, set out in full, is
clear, exhaustive, and absolutely fair to the
prisoner. If there was any error, the state
alone had a right to complain. The real con-
test in the case centered upon the question
of the identification of the prisoner. If the
testimony of the only witnesses to the hom-
icide is true, it was an unprovoked, heartless
murder, There is no contradictory evidence
in respect to the way in which the deceased
was killed.
We have examined the exception to the
reply made by his honor to the question pro-
pounded by the jury after an hour’s delibera-
tion, and find no error therein.
The last exception urged by the prisoner's
able and faithful counsel relates to the con-
duct of the jury. In respect thereto his hon-
or finds the following facts: “The jury, pend-
ing the trial, were quartered in the Klondyke
Hotel by the officer, and kept together there
at night, and when not attending upon the
sessions of the court. That the alley in
which the shooting occurred was right on
one side of the hotel, and was the nearest
way from the hotel to the privy, and that
on two occasions the jury were carried by
the officer through the alley to reach the
privy for the calls of nature. The first time
was on the night after the jury was impancl-
ed, and hefore any evidence was introduced.
The next time was on yesterday, in the day-
time, pending the argument. The court finds
that the jury, nor did any of them, at any
other time visit or go through the alley, anc
that there were not any remarks made by
any one of the jury, nor by the officer a‘:
tending them, as to the condition or appear-
ance of tbe alley, and that the jury coud
see and did see the alley from time to time
as they passed along by it going to and re-
turning from the sessions of the court, Dut
no remarks were made by them, or any of
them, as to the conditions of the alley, or
appearances therein. That the jury, from
the hotel windows, could see and did see the
alley and street along which the accused
was alleged to Lave gone after the shooting.
The court further finds that the jury could
and did see the electric lights, and could
and did see to what extent they lighted up
the alley and the streets and points at which
it was testified the accused was on the night
of the killing, but there was no mention of
any of these conditions, nor remarks made
by the members of the jury to each other,
nor to any one else, nor by the officer, nor
any discussion by them of any of these con-
ditions, or the appearance of the place of the
shooting, nor any of the environments.”
The prisoner, upon these findings of fact,
moved the court to set aside the verdict.
Motion denied. Prisoner excepted. In_ re-
spect to motions to set aside the verdict of
the jury for misconduct, the rule which con-
trols this court is thus stated by Pearson,
Cc. J., in State v. Tilghman, 33 N. C. 513
(page 553): “If the circumstances are such
as merely to put suspicion on the verdict.
by showing, not that there was, but that
there might have been. an undue influence
brought to bear on the jury, because there
was opportunity and a chance for it, it is
a matter within the discretion of the presid-
ing judge. But if the fact be that undue in-
fluence was brought to bear on the jury, as
if they were fed at the charge of the prose-
cutor or prisoner, or if they be solicited and
advised how their verdict should be, or if
they bave other evidence than that which
was offered, in all such cases there has been,
in contemplation of law, no trial, and this
court, as a matter of law, will direct a trial
to be had.” This court held in State v.
Crane, 110 N. C,.530, 15 S. E. 231: “When it
appears only that there was an opportunity
whereby to influence the jury, but not that
the jury was influenced—merely opportunity
and chance for it—a new trial is in the dis-
cretion of the presiding judge.” State v.
Miller, 18 N. C. 500. In State v. Gould. 90
N. C. 658 (a capital felony), Mr. Justice Ashe
says: “And even if the circumstances had
been such [which was not the case here]
as to show that there was an opportunity
and chance for exerting an influence upon
them, it would have been matter of discre-
tion with the presiding judge whether he
would have granted a new trial.” In this
case his honor, while properly declining to
be
N.C.) STATE v. BOGGAN. 115
Lave an affidavit from one of the jurors for
the purpose of impeaching the verdict, states
that he examined each of the Jurors verbally
1 the presence of the prisoner and his coun-
«!, and the record shows that the jury was
led. The presumption is, in favor of the
iegrity of the jury and their verdict, that
ey tried the case upon the law and evi-
cence. If it is sought to impeach the ver-
'.t, the burden is upon the prisoner to show
- her that they were improperly influenced,
vr that their conduct was such that, as a
moutter of law, there had been “no trial.” We
ustrue the findings and action of his honor
»mean that the jury were not influenced in
arriving at their verdict by what they saw
in regard to the alley and its surroundings.
We do not entertain a doubt but that the
learned, just, and fearless judge who heard
the case and passed upon the motion would
‘ave promptly set the verdict aside, regard-
‘ess of all other considerations than his sense
of duty, if he had even doubted its integrity.
We should not hesitate to declare the law as
yntended by the prisoner, regardless of this
nsideration, if we so found it to be. T*or-
merly juries were selected from the vicinage,
‘ecause of their supposed familiarity with
‘he parties, witnesses, and surroundings. It
auld be impracticable to shut a jury up in
: room without light, air, or exercise during
‘ long trial—as in this case, eight days--to
}revent the possibility of their seeing, in
jassing to and from the courthouse or at-
‘ending a eail of nature, something which
night affect their minds. Many suggestions
:dily occur to the mind of conditions and
«.recumstances which might affect the minds
-f Jurors, which it would be impracticable to
make the basis for setting their verdicts
-.de. The law and its administration are
fr the practical affairs of life. While it
ks to protect the innocent, and surround
accused in the day of his trial with all
of the safeguards which experience, human-
‘ty, and justice demand, it seeks also to deal
with men and things in a practical way.
We have given the prisoner's cause a care-
ful, anxious consideration. A jury of his
country has found him guilty of an unpro-
voked murder of a citizen of the state. We
“nd no error in the action of the court. He
ras been tried according to the “law of the
and.” The judgment must be aflirmed.
a
MONTGOMERY, J. (dissenting). I dis-
sent from that part of the opinion of the
court in which it is held that his honor com-
nitted no error in refusing to grant to the
Prisoner a new trial on the ground that the
/oty were on several occasions allowed to
‘sit the locality where the homicide occurred.
\ most material question of the trial was
“e identification of the prisoner. Without
“se ald of the dying declarations of the de-
eeased, the jury would have had difficulty
in making that identification. The homicide
occurred at night in an alley of the town of
Wadesboro. Some of the witnesses testified
that the light in the alley from an electric
light was insuflicient to disclose the identity
of the prisoner. Others said that the light
was suflicient for that purpose. The jury
were allowed, without an order of the court,
and without the knowledge of the prisoner,
to observe many times the effect of the light
upon the point where the homicide occurred.
I am not seeking to disturb the rule, so often
laid down by this court, that it is mot sufli-
cient to set aside a verdict that a juror might
have been influenced by separation from the
others of the jury, or by communications held
with otbers outside, but that there must be
evidence that the juror was influenced in his
verdict by such conduct. But I do intend to
enter my dissent against the conviction of
any person of a capital felony in a case
where evidence other than that offered on
trial in an open court has been received by
the jury, as was done in this case. In State
vy. Tilghman, 33 N. C., at page 553, Vearson,
J., said for the court: “We take this plain
proposition: If the circumstances are such
as merely put suspicion on the verdict by
showing, not that there was, but that there
might have been, undue influence brought to
bear on the jury, because there was eppor
tunity and a chance for it, it is a matter
within the discretion of the presiding judge.
But if the fact be that undue influence was
brought to bear on the jury, as if they were
fed at the charge of the prosecutor or the
prisoner, or if they be solicited and advised
how their verdict should he. or éf they have
other evidence than that which was offered
on the trial {italics mine], in all such cases
there has, in contemplation of law, been no
trial; and this court, as a maiter of law,
will direct a trial to be had, whether the for-
mer proceeding purports to have acquitted or
convicted the prisoner.’”’ It matters not what
you may call the observations of the jurors
of the place where the homicide was com-
mitted, or for whatever purpose the jury
visited that locality; the fact is the effect
of those lights upon the points in that alley
which were made important by the testimony
was evidence, and it was, in the nature of
things, bound to have influenced the jury in
fixing the identification of the prisoner. No
person can say that the lights which the ju-
rors saw on the nights when they were in or
near the alley were the same lights which
were there the night of the homicide. And
it will not do to say that the prisoner could
have shown that the lights were not the
same. The answer to that is that he did not
know the jurors had been there making ob-
servations. That information came after the
trial was over.
ut
UR LK SIF
798 55 SOUTHEASTERN REPORTER. (N. ©.
children will do; I begged Frank [defendant] to
go along and let me alone,” is competent as a
dying declaration.
[Ed. Note.—lI’or cases in point, see Cent. Dig.
vol. 26, Hlomicide, § 489.]
4. CRIMINAL LAw — EviDENCE — VOLUNTARY
CONFESSIONS.
In a prosecution for murder, evidence of
voluntary confessions by defendant that he killed
a, giving his reasons for so doing and de-
the. circumstances connected with the kill-
ing. is admissible.
{f!d. Note.—For cases in point, see Cent. Dig.
vol. 14, Criminal Law, § 1146.]
5. SameE—REVIEW — INSTRUCTIONS — FAILURE
TO REQUEST.
A defendant in a criminal prosecution who
does not ask for additional instructions cannot
complain that the court did not present his con-
tentions to the jury.
[I5d. Note.—For cases in point, see Cent. Dig.
vol. 15, Criminal Law, § 2646.]
Appeal from Superior Court, Guilford
County; Long, Judge.
Prosecution of Frank Bohanon for murder,
From a conviction of murder in the first
degree, defendant appeals. Affirmed.
The defendant, with Kiser Crutchfield and
Oscar Crutchfield, was {indicted for the mur-
der of R. E. Beacham, on July 31, 1906. He
and Kiser Crutchfield were convicted of mur-
der in the first degree, and Oscar Crutch-
field was acquitted. The defendant alone
appealed.
George S. Bradshaw, for appellant. The
Attorney General, for the State.
WALKER, J. (after stating the ease). We
have carefully examined the testimony in
this case, and find it sufficient to sustain
the conviction of the defendant, though no
objection was distinctly made that there was
no evidence to warrant the verdict. There
are seven errors assigned as having been
committed In the rulings of the court at the
trial, and they will be considered in their or-
der.
The defendant objected to C. C. Townsend
as a juror upon the ground that he had form-
ed and expressed the opinion that the de-
fendant is guilty. The court, after hearing
the evidence bearing upon this objection,
found that the juror was indifferent, and
overruled ft. The juror was sworn and
served. We do not sce how this ruling can
now be made the subject of an exception.
The juror stated that, notwithstanding he
had formed and expressed an opinion that
the defendant is guilty, he was yet satls-
fied that he could decide fairly and impar-
tially as between the state and the defend-
ant, and the court found upen the evidence
that he was indifferent. The findings of
fact as to Indifference have been held not to
be oo in this court. State v. Elling-
ton, 29 N. C. 61: State v. Collins, 70 N. C.
241, 16 Am. Rep. 771; State v. Kilgore, 93 N.
: State v. Potts, 100 N. C. 457, 6 S. FE.
ate v. De Graff, 113 N. C. 688, 18 S.
State v. Fuller, 114 N. C. 885, 19 S.
E. 797; State v. Kinsauls, 126 N. C. 1096,
86 S. KE. 31; State v. Register, 1383 N. C. 747,
46 8. E. 21. The case of State v. Potts, 100
N. C. 457, G6 S. E. 657, seems to be directly
in point. But there is another familiar prin-
ciple of the law which fully meets and an-
swers this objection. The defendant did not
exhaust his peremptory challenges, but there
were many left to him when the panel was
completed. When such is the case, the ob
jection to a juror, who could have been re-
jected peremptorily, is not available. State
v. Hensley, 94 N. C. 1021; State v. Pritchett,
106 N. C. G67, 11 S. E. 357; State v. Teaches,
18S N. OC. 587, 50 S. E. 232. The same riile
has been affirmed three times at tbis term
of the court. Ives v. Railroad Co., 142 N. C.
—, 55 S. BD. 74; Hodgin v. Railway Co.,
142 N. C. —, 55 S. E. 413; and State v. Sul-
tan, 142 N. C. —, 545. E. 841.
The defendant next objected to the testl-
mony of the witness W. T. Ausley, who stat-
ed that he was with Beacham after he was
shot by the defendant, and that he told the
witness that he was dying. There was other
sufficient evidence tending to show that Bo-
hanon knew that he was in extremis. He
died within two hours after the witness had
the conversation with him to which the de-
fendant objected. The court permitted Aus-
ley to testify that Beacham said to him: “I
do not know what my wife and children will
do. I begged Frank [Bohanon] to go along
and let me alone.” This was competent as
a dying declaration. It is evident that the
deceased was referring to what had occurred
at the time he was shot, so that what he fold
Beacham he had said to the defendant cou-
stituted a part of the res geste and was not
the narration of a past event. It identified
the defendant as the one who had commit-
ted the homicide. State v. Dixon, 131 N.
GC. 808, 42 S. E. 944; State v. Boggan, 133 N.
C. 761, 46 S. KE. 111; State v. Teachey, 138
N. C. 587, 50 S. I. 232. The reference he
made to his family merely confirmed the
finding that he was, at that time, aware of
his critical condition, and well knew that
he was fast approaching the supreme mo-
ment of his dissolution, when his words had
more sanction and solemnity than {is ever
imparted by tbe ordinary tests the law ap-
plies to insure the accuracy and credibility
of human testimony.
The third, fourth, and fifth assignments
of error are based on the admission of the
testimony of the state’s witnesses, W. J-
Weatherly, D. H. Collins, and C. F. Neely.
Weatherly testified that the defendant was
arrested in Danville, Va., and that on his
way to Greensboro he asked him why he had
killed Beacham. He replied that he was
Workiug under Beacham, who discharge}
hiny and mistreated him by tearing down his
tent. The witness chided him for having
resorted to violent and serious measures {0
resentment of such a grievance, whereupod
N. C.) BOURNE v. SHERRILL. 799
the defendant said that he would not have
killed him, if the Crutchfields had not made
him drunk and proveked him to it, by telling
him that he ought not to submit to such a
wrong. Collins testified that the defendant
told him he had gone to Greensboro and
bought a gun and then went to the railroad
camp to look for Beacham; that when he
found Beacham, the latter cursed him and
told him to go away or he would kil] him.
or something like that, and the defendant
replied that he had come there for trouble,
and he then shot Beacham. After the shoot-
ing oceurred he went to Kiser Crutchifield’s,
and then he lay in the pines all day, where
he saw the officers searching for him. Neely
testified that the defendant admitted to him
he had killed Beacham, and added that he
would not have done it if the Crutchfields
had not persuaded and helped him to do it.
He said, in a second statement, that Beach-
am had a pistol and “that he had to shoot
him to keep from being shot.” There was
evidence on the part of the state that Beach-
am did not have his pistol in his hands at
the time he was shot, and that the act of
the defendant was willful and deliberate. and
not done in self-defense. The testimony of
the three witnesses, Weatherly, Collins, and
Neely, was competent and relevant. We
have examined the preliminary proof taken |
by the court to ascertain if the defendant's
confessions were voluntary. There is noth-
ing to be found there to indicate that they
were not. No promise was made to induce
him to make the confessions, nor was any
threat used to extort them. So far as we are
able to see, they were entirely voluntary.
Ilis honor having so found. the testimony
was admissible. State v. Bishop. 98 N.C.
173, 4S. E. 357; State v. De Graff, 113 N.C.
G88, 18 S. BE. 507: State v. Daniels, 1384 N.
Cc. 641, 46 S. FB. 748; State vy. Exum. a
N.C. 99, 50S. Be 288: State v. Sinith, 138
N.C. 700, FOS. 16. 859,
The sixth exception is wethout any merit,
and, if it were not for the gravity of the
charge, we would pass it by without com-
ment. The defendant in that exception com-
Plains that his honor did not present to the
jury the contentions of his counsel. The
charge of the court in this respect was very
full and explicit, and so clear in statement
that the jury could not have failed to under-
stand the defendant's theory in all its phas-
es. Besides, the defendant did not ask for
any additional instructions. if those already
given were, in his opinion, not sufticient to
cover the case, Simmons v. Davenport, 140
N. CG. 407, 58 8. FE. 225: State vy. Martin, 141
WC. 882.053 SS. EL. S74.
The seventh and last exception is also
untenable, It appears that the eourt not
only instructed the jury clearly and fully
as to the doctrine of reasonable doubt. but
repeated its instructions as to that matter
More than onee, and cautioned the jury that
the burden was on the state at all stages of
the prosecution, and that they should not
convict of any degree of homicide without
being fully satisfied of the defendant's guilt
to the exclusion of every reasonable doubt.
Upon a review of the whole record, we con-
clude that no error was committed by the
court in the trial of the case.
No error.
BOURNE vy. SHERRILL.
(Supreme Court of North Carolina. Dee. 18.
1906.)
1. ConTRACTS—CONSIDERATION.
Where, at the time of the saie of a certain
lot and as an inducement thereto, the vendes
agreed that. if he resold the iot. plaintif! shonid
have the profits realized on such resale. the
consideration supporting the sale was sufficient
to sustain the collateral agreement.
[Ed Note——For cases in point, see Cent. Dig.
vol. 11, Contracts. § 267.] :
2. EVIDENCE—WRITTEN INSTRUMENT—CONTRA-
DICTION—COLLATERAL AGREEMENT.
Parol evidence of a collateral agreement
by a vendee to pay to the vendor any profits
realized from a resale of the peers s
not objectionable as contradicting the convey-
ance.
[Ed Note.—For cases in point. see Cent. Dig
vol. 20, Evidence, $$ 2048-2051.]
2
3. FRAUDS, STATUTE OF-—CONTRACT CONCERN -
ING LANpb.
At the time plaintiff conveyed certain p:
erty to defendant it was agreed that. if deter Sek
ant resold the property and did not build ther -
on, plaintiff! should have the profits realized on
such resale. Meld, that such sgreement at-
tached to the proceeds froin and after a_re-
sale. and was not, therefore, an agreement con-
cerning Jand, within the statute of frauds.
Appeal from Superior Court, Buncombe
County: O. H. Allen. Judge.
Action by one Bourne against one Sherrill.
From a judgment for plaintiff, defendant ap-
yeni Aflirmed.
Issues were submitted and responded te
ee the jury as follows: “(1) Did the defend-
ant agree with the plaintiff that if he would
sell him the lot. that in the event he did not
build on it. but sold it, the plaintiff was to
have the profits?” Answer: “Yes. “(2)
If so, what profit did the defendant derive
from the sale of the lot?” Answer: ©se6:.-
04. with interest.” There was judgment on
the verdict for plaintiff, and defendant ex-
cepted and appealed.
Julius C. Martin, for appellant. Lecke
Craig. for appellee.
HOKE. J. There was evidence of plain-
tiff tending to show that plaintiff seld and
conveyed to defendant a lot in Asheville, for
Which he had been offered a larger price by
another, under assurance that defendant de-
sired to build on the lot as a home for him-
self and wife: that at the time the lot was
conveyed te defendant. as an inducement
thereto, and iu part consideration for the
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756 55 SOUTHEASTERN REPORTER.
O'Bryan’s Case, we find that it was held
to be reversible error to exclude a witness
who was not sent out “unless the party or
his attorney calling the witness has been
party or privy to the violation of the order’;
because, says the court, “any other rule
would put it in the power of a hostile witness
to deprive a party of his evidence.” I re-
spectfully submit that the authorities cited
in the opinion in that case should have led
the court to hold that ‘ta witness who diso-
heys such order is guilty of contempt; but
the judge cannot refuse to hear his evidence,
although the circumstance is a matter of re-
mark to the jury. 2 Best, Ey. 636, The
learned justice says that this “may now be
regarded as settled.” In Com, V. Crowley,
168 Mass. 121, 46 N. E. 415, the circumstances
under which the witness was excluded were
peculiar. I concede that the ruling in that
case sustains the opinion in this. It is
worthy of note, however, that the question
was not discussed by the court, and Holder's
Case, supra, was relied upon. The value of
that case as an authority for the purpose
of sustaining the right to exclude the wit-
ness has been pointed out. Wharton, Cr.
Ey. § 446 (9th Ed.) is relied upon. The orig-
inal text so states the law, but the notes,
after citing many cases, concludes: “But it
may now be considered as settled that the
circumstance of a witness remaining in
court, in disobedience of an order of with-
drawal, is not ground for rejecting his evi-
dence.” The old rule was always to exclude
the testimony.
L have thus reviewed the authorities re-
lied upon to sustain the ruling in this case.
It is impracticable for me to comment upon
the large number of cases cited in the ex-
cellent brief of prisoner's counsel, showing
that by the overwhelming weight of authority
the court has no right to exclude the witness.
The latest work on criminal procedure so
states the law. Clark, Crim. Prec, 548. The
last deliverance of this court is to the same
effect. Jn State v. Hare, T4 N.C. 591, it is
held error to refuse “to allow the defendant
to examine a witness who was not present
when the other witiesses were sworn and
sent out, and who came in during the trial,
but had not beard the examination of the
other witnesses.” No authorities are cited ;
the question is treated as settled. Grimes
vy. Martin, 10 Iowa, 347; Dickson vy. State,
39 Ohio St. 73.
I cannot better close the discussion of this
question than by quoting the wise and noble
words of one who drew inspiration and ac-
quired knowledge, by heredity, example, and
education, of the principles of constitutional
liberty from ano ancestry illustrating the
hichest virtues of citizenship and judicial
service In our own state. In Parker vy. State,
G7 Md. 229, 10 Ath 219, 1 Am. St. Rep. 38%,
Mr. Justice William Sheppard Bryan, hitely
departed, after a long and honorable service
on the bench in his adopted state, said; “It
(X. C.
was in the discretion of the court to order
the witnesses to leave the courtroom; but
it is not reasonable to take away from a
prisoner on trial the benefit of testimony
on which his life may depend because of the
misconduct of another person. The humanity
of the law is shocked at the punishment of
the innocent. It provides with the greatest
solicitude that persons accused of crimes
shall have fair and impartial trials. The
object is considered of sufficient importance
to be guarantied by the solemn and im-
pressive declarations of our organic law.
The scheme and theory of our legal system
seek to provide that no man shall be ad-
judged guilty unless the truth of the matter
charged upon him has been established after
a fair and full investigation. The ascer-
tainment of the truth is the great end and
object of all the proceedings in a judicial
trial. But this object is pursued by general
rules, which experience: has shown to be
useful in guarding against erroneous con-
clusions. By the operation of these general
rules, certain well-defined classes of per-
sons are forbidden to testify. Subiect to
these well-known and distinctly marked ex-
ceptions, a person on trial has the right to
prove the truth relating to the aceusitien
against him by the evidence of all witness-
es who have any knowledge of it. and they
are compelled to attend and deliver their tes-
timony in his behalf. Since such great care
has been taken to secure the right of an ae-
eused person to prove the truth relating to
the accusntion against him. it would be
very strange if he should forfeit this most
precious privilege by the misbehavior of a
witness. Authorities were cited at the bar
for the purpose of showing that in some
jurisdictions it was within the discretion of
the judge to refuse to permit a witness to
testify under the cireumstances stated in
the second exception. If the evidence of such
witness would show the innocence of a pris-
oner on trinl for his life, then the discretion
of the judge to admit or reject the testimony
amounts to a discretion to take the prison-
er’s life or to spare it. The wise, just, and
merciful provisions of our criminal law de
not place human life on such an uncertain
tenure. A man’s life and liberty are pro-
tected by fixed rules prescribed by the Jaw
of the land, and are not enjoyed at the dis-
eretionary forbearance of any tribunal. All
suggestions of this kind are alien to the
spirit and genius of our jurisprudence.”
This language was used with the approval of
Justices Alvey, Stone, and Miller, and leaves
nothing more to be said. When the consti-
tutional right to confront his accusers is
placed upon positive law, there is certainty
nnd safety to the citizen. When made to de-
pend upon variable and varying eines
stances and conditions, ultimately vesting
in the unreviewable discretion of a judzer
there is confusion, uncertainty, resulting
contlicting decisions, dependent upon the }&
9a?
N. C.)
culiar views of the court respecting the guilt
or innocence of the defendant, which it is
the province of the jury alone to decide.
We are not called upon to decide in this case
whether, if the prisoner were in fault in not
swearing and sending his witness out of the
courtroom, he would forfeit his constitutional
right. There is nothing in the record indi-
‘ating that he knew that Riggsbee was under
subpeena or would be called. The prisoner
had been in jail, and was, of course, in cus-
tody during the trial. Whatever may be
said of the effect of his personal conduct up-
on his right, I find no authority holding that
by the failure of his counsel to comply with
the order of the court his rights are for-
feited. There are rights secured to a person
on trial for a felony which he cannot waive,
while there are others which may be waived
by him, but not by his counsel. I do not
find any decision holding that the right to
examine his witness is lost by any act of
omission or commissicn of counsel. I am
sure that, upon principle, no such decision
could be sustained. Here there is no sug-
gestion that the learned and honorable coun-
sel connived at, or, for any improper rea-
son, permitted, the witness to remain in the
court after he ascertained that his testi-
mony would be of value to his client and had
him subpeenaed. It is entirely consistent with
our observation and experience that he over-
looked the fact that the witness should re-
tir. lis uniform, honorable, and frank
conduct in his relations to the courts ex-
clude any other explanation,
But it is said that the prisoner has suffered
no barm by the refusal of the court to per-
mit his witness to testify. If I were per-
mitted to express my personal opinion in
this respect, I should not dissent from the
proposition. When, as a judge, I am called
upon to deal with a constitutional right of
2 citizen, I am not permitted to make the
Constitution of “none effect” because of such
rensons. I do not find that the judges have
heretofore done so. 1 find no case, and none
is cited, to show that a court may for such
reason deal with their rights. Our own re-
ports, and many others, contain numerous
cases in which new trials have been given
becnuse of the failure to accord constitution-
al rights to defendants, and in none of thei
is it suggested that unless prejudice was
shown it was not reversible error.
It is further said that the exception can-
not be sustained because it does not appear
what prisoner proposed to show by the wit-
ness, I concede that where the exception
is based upon the exclusion of evidence
such is the rule. The distinction is well
stated in Thomes’ Case, supra, where it is
said: “The relatrix was not bound to state
What she expected to prove by Johnson, he-
cause the question is not as to the competen-
cy of his testimony, but as to his right to tes-
tify at all. Where the matter complained of
is the action of the court in refusing to per-
STATE y. BOHANON. 797
mit a witness to testify at all, the grounds
of the objection to the witness must be shown
by a bill of exceptions, and this is all that
need be shown in order to present the mat-
ter for our consideration. We cannot say
that the relatrix was not prejudiced by the
refusal of the court to permit Johnson to
testify, and the judgment cannot be sus-
tained.” This opinion is sustained by au-
thority. I do not find in any of the cases
which I have examined that the right of de-
fendant to have his exception considered is
dependent upon showing what he expected
to prove.
I have with some labor and care consid-
ered and investigated the question presented,
because, with all possible deference to the
opinion of the court, both in respect to the
law and the desire to see that guilty men are
punished, I cannot resist the conclusion that
a dangerous innovation, of course uninten-
tional, is being made upon a fundamental
right of the citizen. If, perchance, the right
is invoked by a guilty man, it is no reason
that it should be denied, or its value and cer-
tainty weakened. We cannot tell how soon it
will become a shield for the protection of an
innocent man charged with crime. T con-
cede—what I do not tind anywhere doubted
—“that the sole object of a trial for murder
is not the acquittal of the prisoner. It is to
determine whether he be guilty or not, after
giving him the advantage of requiring the
unanimous verdict of a jury of 12 men, each
of whom must be satisfied berond a rea-
sonable doubt of his guilt.’ 1 only insist
that, unless he be permitted to confront his
accusers with his witnesses. the right of
trial by jury is of little value. and to re-
fuse it to him is, as said by Chief Justice
MENDERSON, to make this provision of the
Constitution “a dead letter.”
WALKER, J., concurs in the dissenting
opinion.
STATE vy. BOITANON.
(Supreme Court of North Carolina. Dee. 1S;
1906.)
1. CrimmxnaL LAW — APPEAL — QUESTION OF
Factr—INDIFFERENCE OF JUROR,
The findings of fact of a trial court as to
whether a juror is indifferent are not reviev
on appeal.
9. SaAME—REVIEW—IIARMLESS Error—J cRY¥—
CHALLENGE FOR CAUSE.
Where a party has not exhvusted his per-
emptory chailenges when the panel is completed,
an objection that a juror should have been re-
jected for cause is not available,
[iEd. Note.—For cases in point, see Cent. Dig.
vol. 15, Criminal Law. § S117.]
EviIpENcE — Dytnq@ D)eCLARA-
able
3. HlomMiclpE
TION,
In a prosecution for murder, testimony of
a witness who was with deceased after he was
shot and two hours before he died, and who
was told by deceased that he was dying, that
he said, “i do not know what my wife and
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Lak Rael sly Sh teh le bicnntes oebe’ TRAE FATLPTRETIO WE SLOT ILEL ISLS i CLET EOL PEO
aie he aed
BOHANNON, Frank, black, hanged at Greensboro, NC, on Feb. 8, 1907« . iio
nGreensboro, NC, Feb. 8 = Fran k Bohannon, colored, died on the scaffold here today
for killing Ry Le Ei Beatchman, a foreman, un er whom-he worked in double-tracking
the Southern Railway. At’ ll o'clock this morning the Reve Ws Re Tolliver, pastor of
one of the ‘colored churches, who has been administering to the man for some tim e,
held a regular. service in the man's cell, At 11:40 Sheriff Jones read the &ath. |
warrant during which reading and up to the last moment, the condemned man was calm |
and perfectly free from nervousness. When he came out of his cell he looked over the crowd
and said: 'Good morning friends: I stand before you a murderer, who has violated
the laws of God and man, but I have made peage: with God and man and want you to meet
me in heaven,' After saying 'Goodbye, my friends, and MARXKXKAXAFBUY God bless you,’ the
black.cap was tied on Bohannon and the trap was sprunge There was no struggle, and-
in thirteen and.three-eighths minutes Life was pronounced extinct. Drs. Brooks,
Edmund Harrison and Foscue were in’attendance, and said that his neck was bvokene
A plain blaek coffin was. brought and the body placed therein. The. remains will be
shipped to his‘sister in Winston today." TIMES-DISPATCH, Richmond, Virginia, Febe
95 1907 (136.)
"(Special to the TIMES-DISPATCH.) Greensboro, NC, Auge 7, 1906. =-Close upon the news of
the Salisbury lynching last night, vague rumors began here this morning that a plan to
lynch Frank Bohannon, in jail here for the athere¢ murder of the Southern Railway double-
tracking fireman, Beachman, was being formed, +t has never been apprehended that there
would be any trouble from citizens of Guilford County. It is now-knowh that certain
railway employees here, at High Point and at Spencer, have been §HaXM holding suspicious
conferences. Beachman, it is said, has a brother at Spencer, and the lynching at |
Salisbury has undoubtedly caused excitement in certain circles here and.at other.points. |
This morning there was an executive conferece between the Board of County Commissioners,
County Attorney Wilson, Mayor Murphy, Chief of Police Neele, Sheriff Jordan and Jailer
Bostick as to the propriety of removing Bohannon and his two alleged accomplices in the
killing of Beachman to some other county jail. It was finally decided that it was not
necessary to remove the prisoner, Governor Glenn was communicated with and gave
assurances to the Sheriff that if any trouble-arose, he would be authorized to call out
the militia and they.would be instructed to use loaded cartridges, .Definite reports
lates tongghh that a large body of men from railroad points south of here were coming
to lynch the negroes in jail.here implicated in the murder of Foreman Beachman has
had the effect of putting the entire city on its guard, Sheriff Jordan refuses to
remove the prisoners from the jail, declaring that he can defend them, and will do so .
against 10,000, The entire city police force is on guard, and the Greensboro militia |
company put in readiness with loaded cartridges, Several strange parties were-recon=-
noitering the jail this afternoon, and they are being closely watched, -There will be
no lynching here, and any attempt will ‘be desperately resisted, The preliminary trial
for these negroes has been postponed until Friday, when at 10 o clock Justices of the
Peace, D. H. Collins and J. E. Wolfe will preside at the courthouse, This long delay
in having the preliminary hearing is causing a great deal of criticism, since the murder
was peculiarly open and cold-blooded, All the witnesses are known, tha ctual perpetrator
of it admits it and involves the two accessories. It is said that these alleged acces-
sories have not raised the funds demanded by their lawyer, and the matter is delayed on
that account. It can be safely asserted that the negroes will be taken out of the jail
for several nights to come and guarded at some place unknown to the general public. This
was done several years ago by Sheriff Gilmer for several nights in the case of a prisoner.
There appearing to be no trouble, the very first night the prisoner was left in the
jail, he was taken out and lynched," TIMES_DISPATCH, Rychmond, Virginia, August 8,
of" , CONFESSION. —
"Danville, Vaey Auge hy, 1906. - Frank Bohannon, the negro who was arrested here last.
night on the charge of murdering Re —. Ceacham, the foreman of a gang of secfion hands
near Greensboro, N. Ce, has practically confessed to the crime. Bohannon claims that
Beacham snapped a pistol in his face, and that he fired in self-defense, eat Pears
Ԥ quite indifferent to the matter, When asked ') )
aon thine iLL oi aoe Petar he sends ‘well, I guess they will hang me, wut what do I
care?! Bohannon will likely be taken to Greensboro tonight. Peemerecass) on will be
taken by the police to prevent capital violence. Police Officer William East will get
eS a
Elizabeth City
BOWSER, William, free black, hanged Raman Kwuwkyx,N. C.y November 16, 1822,
"At the late Superior Court held for Camden County, Judge Norwood presiding, = Bill
Bowser, a free man of color, charged with burglary, was tried; the case having been
removed by affidavit from Pasquotank: to Camden County, After a patient hearing of
the allegations on both sides, which occupied the Court nearly a whole day, the
jury retired, and soon returned with a verdict of Guilty, The prisoner as remand-
ed to jail until the nex t day when he was broucht into Court to receive the sentence
of the law. Judge N,rwood, after warning the prisoner, in a solemn and feeling
manner, of his awful situation, and recommending him to the merits of a bleeding
Saviour, by penitence, humiliantion, and prayers as his only hope; passed sentence
of death on him, to take place in Pasquotank County, - ELIZABETH CITY STAR,"
REGISTER, Raleigh, NC, November 15, 1822 (3:2.
BOSWELL, Robert, hanged N.C.(Hillsboro) Oct. 31,1879
\ ASLEEP INSIDE.
| She awoke aud was told to “step to the door a
minute."’ Nancy complied with this request, and
Boswell, for the Butchery of His Wife, | just as she opened the duor Boswell attempted to
One of the Most Hideous Homicides in || rein her with the ax. She dodged, and thus received
the Calendar of Crime. : i the sharp edge of the ax on her right shoulder, With
| @ heartrending scream the bleeding woman turned
A CHEERFUL CHOKING.
Execution of the Murderous Moke, Bob |
| and fled through a back door and out into the field
xurrounding her humble cabin home. The cruel and
inhuman villain whom this woman had called hus-
band with uplifted ax pursued her across the field,
Hintanono, N, C., Oct. '31.—Hillaboro, the oldest;
town in North Carolina, has within the last few years
witn«ssed a number of * hangings" second to that of
no place in the land. Nearly a dozen criminals have
been executed her? within the recollection of children |
born since the war, the last death dance being only |) and, regardless of her screams aud piteous appeals for
six months ago, when the three noted Chapel Hill
burglars were publicly executed on the town common
| of Hillsboro. To-day the same rude, but substantial,
| gallows which ended: th: earthly career of Davis,
| Andrews and Carlton in May last was made the means |
of launching into eternity the soul of Robert Boswell,
the most savagely brutal negro who ever darkened
| the doors of even the Orange County Jail. This
| bloodthirsty demon paid the death penalty for the
| murder of his
\ WIFE AND TWO LITTLE CHILDRER.
| Boswell waa a married man, his wife being known by
the name of Nancy Blackwell, and they, with their |
two children, lived in a small house uear the North |
Carolina Railroad, about two miles west of the town
ot Durham. They, did not live very peaceably to-
gether, though the woman bore a yood cheracter and
was of a quiet and peaseable disposition." It was Bos-
| well’s custom to go off from bome in search of work,
‘he being of such a notoriously bad character in his
| Deighborhood that it wae difficult for him to obtein
| employment near by. He usually came home about
ouce every tw» weeks.
Some time in the spring of 1877 Borwell transferred
hin not too stable affections from hia wife to a vile
| female creature of his race named Rebecca Ann Lyon,
' the wife of Neb Lyon, and Rebecca reciprocated the
| tender feeling, if such it may be called. They un-
lawfully cohabited together, and desiring to become
“man and wife, Boswell actually proposed to Ned Lyon
/ to swap wives, and Rebecca readily reconded 4! he
! proposition, which Lyon :
| INDIGNANTLY NECLINED.
After Lyon's rejection of. this degrading proposition,
| Boswell and the woman deliberately planned the
| death of Ned Lyon and Nancy Blackwell, so that no
| obstacle would be in the way of the lawful marriage
of the two fiends. In accordance with this avrange-
ment Rebecca, in July, 1877, poisoned her husband by
putting arsenic in a glass of milk which she had
placed on a table for him to drink. The arsenic waa
purchased for her by Boswell in Raleigh. Lyon died
suddenly, aud wae buried near where he had lived,
Shortly after the death of Lyon, Boswell went to
Raleigh and was employed on a cotton farm near that |
city. On the evening of the 21st of August following
he came home, remained with his wife and children a
| while and then went to the house of Rebecca Lyon,
where he remained until near the hour of 11 o'clock
| and during that time he and the woman laid their
plans for the murder of Nancy Blackwell and her two
| little children. The house in which the woman Lyon
| lived was nearly half a mile from Boawell’s house, and
on the opposite side of the railroad. Between 11 and
12 o'clock’ these two bloodthirsty fiends left Becky
| Lyon’s house, and following a bypath stealthily made
‘their way to Boswell’s house. Boswell was armed
with an ax, while the worian carried a heavy rolling
| pio. ;
Having arrived at Boswell’s house, the woman
nerey, dealt her blow after blow, They bad thus ran
about twohundred yanla when, the woman's feet be-
coming entangled in some pea vines, she fell tu the
earth, and Boswall ended her suffering by burying the
blade of the axin\her brain and splitting the skull
open. He then itmediately took the bleeding and
still warm body of\his wife, dragged it tc the cabin,
threw it on the bed therein, and, with a torch which
Becky Lyon bad ulrdady prepared, set fire to the
house, and then \
HE AND HIs ACCOMPLICE FLED.
! Ina few moments the nejghborhood was attracted by
the flames, and Becky Lyon, having goue tc her own
house and changed her clothing, joined them and
calmly looked upon the fiendish work she and Bob
Boswell had but a short while before been engaged in,
Boawell left the neighborhood and the county, ana
was not seen by any of those who were a tracted to
the apot by the fire, The fact that he wax seen in the
| neighborhood early that night and was then suddenly
lost to view caused euspicion to rest upon him, and
officers were at once put upon the lookout for him,
but nothing war ascertained as to bis whereabouts
until about the let of November, when he wap arrest-
| edin Wayne county. 100 miler from bere. He was
| brought back to this county, and the testimony elicit-
ed on bis preliminary trial led to the arrest of the |
| woman Rebecca Anu Lyon, aud both were
COMMITTED TO JAIL.
I Indietinents were fuund against beth of them at the
spring tern of the superior vourt iu ists, but the
| state not being ready the tral wae postponed until
the fall term. ;
At the fall term of the court Boswell was trivd, the
the wornan being used as a witness againet bim:-Her
atimony was corroborated by other withesses and
hy cjrenmetantial evideace. acd Bowell wan found
guilty oof mire r gin the frat degree He war son.
tenced ‘to be hanged ‘on the 22d day of November.
Beck Lyot’s case was continued until the spring
terin, and asthe solicitor denired to use 8 confession
which Bob had made after his conviction astesti-
mony against the woman, the governor, at the solici-
tor’n request, reapited Boswell, so that he might be
put on the witness stand againet the wcm1n.
Twelve o'clock was the time fixed for the execution.
Promptly at the hour Boswell was brought frem jail,
neated on a coffin in a “wagon, strongly guarded, and
followed by large crowds of men, women and chil-
dren, mostly negroes. The procession made ita way
KLOWLY TO THE GALLOW#.
On arriving there the coffin was put on the scaffold
and the prisoner seated upon jt. The sheriff read the
death warrant and the numerous respites which had
been.granted. He then read Boswell's confession,
which was as black @ record as ever was read from a
North €arolina gallows. In it he confessed bia im-
prope? relations with Beck Lyon and the murder of
Nancy, Blackwell and his children. He faid bad wo-
men and whiskey brought him to this ignominiour
end. He charged Reck Lyon with the murder of Nat
Lyon, that being part of their arrangement, and said
whe urged him to carry out his part by killing Nancy
_ and the children, and he, being repeatedly urged,
, did xo, He said he swore falsely on Beck's trial. His
, confession closed with a mild confession of hope of
‘salvation. While the reading was going on the prie-
_oner sat upon bis coffin trembling violeatly. He, for
a wonder, declined to speak. Rev. Mr. Wheeler, a
minister of the Methodist Church, made an earnest
and eloquent address, taking for his text, * Bad Wo-
men and Whiskey,” and then prayed. Hand-shaking
was indulged in for several minutes.
At twenty minutes past one the repe was adjuated
aud the black cap put on, and his
LEGS AND ARM®S PINIONED.
At twenty-five minutes past one the sheriff pulled
ip the trap, the drop fell, and Bob Boswell was swing:
ing in the air. When the drop fell several negro wo
| mon fainted, others screamed, and many moaned and
groaned. Otherwise everything was very quiet. Vio-
lent struggling and twitchings of the body and draw-
ing up of the legs were noticeable for three minutes,
after which the body was still. Though the arrange
ments for the execution were perfect, and there was
a clear drop of seven feet, his neck was pot broken.
The criminal was twenty-nine minutes dying, and
died from strangulition. © The crowd numbered
about three thousand. After his) confession was
| read there was not manifested in that large assem.
Dlage a spark of sympathy for the doomed man.
National Police Gazette November 15, 1879
| atood back under the shade of a tree while the man
| walked up to the door and called Nancy Blackwell,
172 SE 879 - NC BOOK AND MAG EXCERPTS,
BROOKS, Jesse, black, li6, elec. NCSP (Durham County March 16, 193.
The following, from Durham Morning HERALD, June 10, 1933 (1-1), sent by
Van Raalte is a very poor copy and almost unreadable, However, I am trans-
cribing what I can make out: "DETECTIVE A, R. GILL KILLED BY NAGRO ROBBER:
POLICE LAUCH INTENSIVE MANHNNT: POPULAR YOUNG MEMBER OF DURHAM FORCE SHOT
DOWN IN FORLINES! STORE IN WEST DURGHAM - NEGRO PROBABLY WOUNDED BY OFFICER:
BLOODHOUNDS TO BE USED: ROBBER, TRAPPED IN STORE, SHOOTS PLAINCDOTHESMAN AS
OTHER OFFICERS INVESTIGATE NOISE = WOUNDED POLICEMAN RETURNS FIRE: Shot three
times by a Negro he and other officers had caught in the act of robbing
Forlines' Grocery store on Brown road, Det&tctive Roland A, Gill of the Dur-
ham Police Department...?...3rown road section for the Negro and blood
hounds were called from Enfield, .
"One bullet struck the detective in the mouth,another just under the heart
and the third in the liver. As he collapsed, Gill fired four times at the
fleeing Negro and Yetectives H, E, King and J. &, Boyle who were present at
the time are confident one of the bullets took effect as the Negro fell and
writhed in the sand beside the highway before escaping down a darkened
alleyway under a hail of lead from Officer King's gun. Receiving a call
from some one living near the store, Detectives Gill, Boyle and King rushed
to the scene, King went to the rear door while the two other officers went
to the front entrance. Half of the glass in the door had been cut away and
Boyle entered the building. Advancing cautiously, Boyle saw the Negro man
who he did not recognize pat described as being about 10 years old, squatting
behind a lard can near the meat counter, Throwing his gun on the Negro,
Boyle ordered him to put up his hands and he comnlked. Boyle then marched
him to just inside the front door when a noise came from the rear of the
store, ‘There's annobher one in there. Go and pet him,' Gill shoutedee.e
the remainder of the article is cut off..."
a
BROOKS, John
John Brooks, paaers hanged for rape, Wilmington,
NC, November 2), 1898.
Undated Chicago TRIBUNE, 1899, sent by Massey &
providing 1898 execution listings.
Reassian lotation to Southport, Brunswick County.
eg e Pe ” ConPiscedl Bape Mrs. MA. wy
Negro. Ag
lo her home at Shallotte in 4/98.
The Wilmhgten Messenger 11/27/9§ pose $
PENS SPR Saath We ah on ag De te ee aE
* .
reise ahi ta ceca tas orga
aa
:
SRGTUEE Sa Boeck eda aur cet Soh] Tere
Litto
SF
Sue’
eetisensta hint
30 N.C
during his wife’s life or widowhood if they
wish it. The said John Cochran and wife
Minnie Cochran, parties of the second
part, agree to keep the building and land
in repairs and pay its proportional part of
tax.” Upon receipt of said paperwriting
John Cochran and his wife entered into
possession of said land, repaired the house
thereon, which was at the time in a dilap-
idated condition, and remained in posses-
sion thereof until the death of John Coch!
ran. Since his death Minnie Cochran has
continued in possession thereof.
On July 17, 1935,-R. M. Twitty executed
and delivered to his daughter, Eugenia
: Twitty, the plaintiff, a deed for said prem-
ises, which deed was duly recorded. There-
upon, on July 22, 1935, plaintiff instituted
this action by procuring the issuance and
service of summons. The defendant, in
her answer, alleged that the deed from R.
M. Twitty to the plaintiff was a voluntary
conveyance without consideration and was
executed for the purpose of depriving
John Cochran, now deceased, and the de-
fendant Minnie Cochran, of the possession
of said premises and for the fraudulent
purpose, participated in by the plaintiff, of
procuring the ejectment of the defendant
from said land and depriving them of the
value of improvements and repairs made
by them in good faith upon said land.
While there were nine issues submitted
to the jury, only one was answered, as fol-
lows: “1. Was the deed from R. M. Twitty
to Eugenia Twitty, bearing date of July
17, 1935, a voluntary conveyance, made for
the purpose of depriving John Cochran
and his wife Minnie Cochran of ‘a life
estate in said property under the paperwrit-
ing signed by R. M. Twitty? Answer:
Ves,’ ”
Upon the coming in of the verdict the
court below signed judgment:
1. That the deed to plaintiff dated July
17, 1935, is null and void, and the same is
hereby ordered to be cancelled of record.
2. That the plaintiff take nothing by her -
action; that the same be dismissed, ete.
3. That the grant from R. M. Twitty to
John Cochran and Minnie Cochran,_ his
wife, be and the same hereby is adjudged in
all respects valid and binding. It was fur-
ther decreed that Minnie Cochran is en-
titled to a life estate in the lands described
in the judgment in accordance with the
agreement as to the boundary thereof.
199 SOUTH HASTERN REPORTER
4. That the bonds executed by the de-
fendant John Cochran be discharged.
The plaintiff excepted and appealed.
M. P. Spears and J. S. Dockery, both of
Rutherfordton, for appellant.
Hamrick & Hamrick, of Rutherfordton,
for appellee.
BARNHILL, Justice.
There was sufficient evidence to sustain
the answer of the jury to the first issue.
The assignments of error directed to the
admission of evidence on this issue, and to
the charge of the court relating thereto, are
without substantial merit. The jury hav-
ing failed to answer the other issues, the
remaining exceptions become immaterial
and do not require consideration.
The deed to plaintiff being a voluntary
one made for a fraudulent purpose, the
Connor Act, now C.S. § 3309, has no ap-
plication here. This act protects only cred-
itors or purchasers for a valuable consid-
eration against unrecorded deeds, mort-
gages, leases and other paperwritings af-
fecting the title to the lands conveyed.
Tyner v. Barnes, 142 N.C. 110, 54 S.E.
1008; Harris v. Lumber Co., 147 N.C. 631,
61 S.E. 604; Spence v. Pottery Co., 185
N.C. 218, 117 S.E. 32; Eaton v. Doub, 190
N.C. 14, 128 S.E. 494, 40. ALL.R. 273;
Gosney v. McCullers, 202 N.C. 326, 162
S.E. 746. In the last cited case, Stacy, C.
J., speaking for the court, says: “And by
the express terms of the Connor Act, chap-
ter 147, Laws 1885, now C.S. § 3309, only
creditors of the donor, bargainor, or lessor,
and purchasers for value, are protected
against an unregistered conveyance of
land, contract to convey, or lease of land
for more than three years.”
[1,2] It follows, therefore, that the
plaintiff through her deed from R M.
Twitty acquired no rights in the locus su-
perior to the rights of the defendant under
the paperwriting signed by plaintiff’s gran-
tor even though the paperwriting held by
the defendant was not of record at the
time plaintiff received and filed her deed
for recordation. On the contrary, her
rights in the land are subordinate to the
rights of the defendant, who has been in
possession of said premises under said
paperwriting since about 1928. But this
does not invalidate the deed of plaintiff.
It is good as between the parties thereto.
The verdict of the jury did not warrant a
Pe
ae omnis 1s eat
STATE v. BOWSER
199 8.E. ara 31
judgment invalidating the deed and di- and, if nothing else appears, constitutes
recting its cancellation of record. “murder in the second degree.”
[3] Likewise, an adjudication of the (Bd. Note—For other definitions of
force and effect of the paperwriting held “Murder in Second Degree,” see Words
by the defendant and the rights of the de- & Phrases.]
endant thereunder cannot be predicated
ee ei higtcrs pee roi judgment * ap osty edad tat premeditati dd
e court below excee - es
thorized by the verdict. s the bounds au rg Aaa necessary to constitute murder
n the fi
riled torn Coreed the defeditant + sues ‘wich gatas’ bode ee
entitled to a judgment that the plaintiff ; : aa
1s not entitled to the possession of the locus be eae _ a NS ee
in quo as against the defendant and is not a ‘at Cs ~ ne ee Set
entitled to recover rents therefor; that the ““S"°® ©:S. § 4200.
rights acquired by the plaintiff under her 5, Homlcide €>14(1)
deed are subject or subordinate to the “Premeditation” as an element of mur-
rights of the defendant under the Paper- der in the first degree means thought before-
writing executed by her grantor to the de- hand, for some length of time, however short.
fendant and her husband; and that the gg. § 4200, ; ,
action be dismissed at the cost of plaintiff. [Ed. Note—¥F sas
The verdict warrants no other or further “p é di . —, tad ~~ Sera -
relief. remeditate; Premeditation,” see Words
; & Phrases,
The judgment below must be modified to Rata
accord with this opinion,
Modified and affirmed,
6. Homicide > 14(1)
“Deliberation” as an element of murder
in the first degree means that the act fs
done in a cool state of the blood, in further-
ance of a fixed design to gratify a feeling of
revenge or to accomplish some unlawful
purpose, and not under the influence of a
violent passion Suddenly aroused by some
lawful or just cause or legal provocation,
and does not mean brooding over it or re-
flecting on it for any appreciable length of
time. C.S. § 4200.
[Ed. Note—For other definitions of
“Deliberate; Deliberation; Deliberately,”
see Words & Phrases.]
214 N.C. 249
STATE v. BOWSER.
No. 145.
Supreme Court of North Carolina,
Oct. 12, 1938,
!. Homicide €=269 7. Homicide €>158(1)
In prosecution for murder, motion-for Evidence of threats 1g admissible and
judgment as of nonsuit on first-degree mur- May be offered as tending to show premedi-
der charge, made in compliance with stat- tation and deliberation and previous express
ute, challenged sufficiency of the evidence Malice as basis for conviction of murder in
to show premeditation and deliberation be the first degree.
yond a reasonable doubt. C.S, § 4643.
8. Homicide €>158(3)
2. ar tie €>22(1) General threats to kill, not shown to
Murder in the first degree” {s the un- haye any reference to homicide victim are
lawful killing of a human being with malice not admissible in support of a conviction for
and with premeditation and deliberation. murder in the first degree, but a threat to
C.S. § 4200. kill or injure some one not definitely desig-
({Ed. Note—For other definitions of nated is admissible where other facts adduc-
“Murder in First Degree,” see Words & ed give individuation to it. CS, $ 4200,
Phrases.)
9 Homicide 171 (1, 4)
3% ee S152 In prosecution for murder, the manner
é intentional killing of a human be- of killing, defendant's acts and conduct at-
ing with a deadly weapon implies malice tending its commission, and his declarations
“ez Syoetq Sear Sepnetol “ugsmod
ATA
Pee Bite. Bical Est EEN NTS (See BIT CH
32 N.O.
immediately connected therewith, are evi-
dence of express malice.
10. Homicide €=169(1), 171(1), 174(1)
In prosecution for murder, the jury may
consider the conduct of defendant before and
after as well as at the time of the homicide
and all attendant circumstances in determin-
ing the question of premeditation and delib-
eration. C.S. § 4200.
11, Homicide €=308(3)
In prosecution for murder, evidence that
defendant had stated that he was going to
kill somebody, that 2% hours later he did
kill a girl, that he stated to officers that he
killed her because he loved her, and that
killing was accomplished by cutting the
girl’s throat, warranted submission of case
to jury on first degree murder charge on is-
sues of malice, premeditation, and delibera-
tion. O.S. §§ 4200, 4643.
12. Criminal law €=829(9) }
In prosecution for murder, where court
defined murder in the first and second degree
and clearly placed the burden of proof on
the state to prove that defendant killed vic-
tim pursuant to a design to kill which was
formed with deliberation and premeditation,
and fully defined reasonable doubt, failure
to charge on the presumption of innocence of
defendant was not error.
13. Criminal law 286
-In murder prosecution, a plea of insan-
ity admits the killing but denies responsibil-
ity therefor.
14. Criminal law €=762(1)
In prosecution for murder wherein de-
fendant pleaded insanity, charge that plea
of insanity did not constitute a complete de-
fense unless defendant was incapable of
having a criminal intent at time of killing
as part of sentence in which court correctly
charged on the burden of proof on the plea
was not erroneous as an expression of opin-
ion, C.S. § 564.
15. Homiclde =151(2)
In prosecution for murder, a plea of in-
sanity constitutes an affirmative defense.
16. Criminal law €=1038(1)
Alleged error in misstating the evidence
in stating a contention of the state could
not be held to be prejudicial error by the
Supreme Court, where the matter was not
called to the attention of the trial court at
the time.
199 SOUTH EASTERN REPORTER
Appeal from Superior Court, Halifax
County; W. H. S. Burgwyn, Special Judge.
Claude Bowser, Jr., was convicted of
murder, and he appeals.
No error.
Criminal indictment for the murder of
one Lizzie Bowser.
The State introduced evidence tending
to show that: Lizzie Bowser was killed
on the night of 22 February, 1938. On
that night, she, Dora Bowser and Gertrude
Brown together attended school exercises
at the London Schoolhouse between Little-
ton and Roanoke Rapids. A few minutes
after Lizzie went into the school building,
defendant, who was sitting in an auto-
mobile with Levi Epps, said—The law is
looking for me because I have killed a
girl’, To Levi’s remark that he had not
because, if he had, he would be running,
defendant replied—‘“No, I ain’t killed no-
body, but I is’. Defendant ‘and Lizzie
Bowser had been going together. She had
talked to him at her home earlier that
evening. Then, apparently, they were
friendly.
When the school exercises, which in the
various estimates of witnesses lasted from
an hour to two and a half hours, were
over, A. Brinkley. Pierce joined Dora Bow-
ser, and they, followed by Lizzie Bowser
and Gertrude Brown, started walking home.
As they reached the road in going from
the school grounds the defendant came up
beside Lizzie Bowser, who said to him:
“Bud, you might as well go on home. I
told you you could not go home with me
tonight”. Then she and Gertrude Brown
walked on up the road. When they reached
the mail box at the entrance to the path
that leads to her home, Lizzie Bowser and.
Gertrude Brown stopped, but Dora Bowser
and A. Brinkley Pierce walked on along
the path. Alex Powell came along then,
as did the defendant. Lizzie Bowser called
to Alex Powell and said that, she had
something to tell him. She walked toward
Alex Powell. The defendant walked up
behind her and said something to her. She
then stated to Alex Powell, “That is all
right, I will tell you another,time”., Where-
upon Alex Powell went up the road, and
Lizzie Bowser again said to defendant:
“Bud, you might as well go on home. I
told you you were not going home with
me tonight”. Then she started to run
and ran up the path. Defendant also
ran, following close behind her. As she
STATE v. BOWSER N.C. 33
199 8.E,
passed by, she said “Come on, Gertrude”,
but did not appear to be frightened. Ger-
trude testified that in a very short time
she heard Lizzie holler twice. Dora Bow-
ser and A. Brinkley Pierce also heard
her and stopped and turned back to go
to her. They, found her one hundred
eighteen steps away lying in the path.
This point was one hundred twenty steps
from where Gertrude Brown was when
she heard her. She was dead. Before
they reached her defendant called to
Brinkley and said—“A. B., come here and
get Lizzie. I done killed her”. To Brink-
ley’s question: “What in the world were
you thinking about?” defendant made no
teply but walked on down the path. He
had met them about half the distance from
where they turned back and the body. He
had a knife in his right hand and it was
bloody. Lizzie Bowser’s throat was cut
on the right side and on the left side with
only a small place in front and a small
place in the back that were not cut in two.
There were signs of scuffling in the path.
Defendant was arrested about 1 A. M
that night at the home of his father about
three quarters of a mile away. When
officers reached the house defendant was
standing in the middle of the floor. On
being asked for his knife, he gave it to the
officer. It was bloody. He had told his
father and mother that he had killed the
girl. The officer asked him: “Why did
you kill that woman?” He said—‘I killed
her because I loved her, and I told her
if I ever caught her I was going to kill
her’. He told the officer that “the girl
had her head lying on his shoulder when
he cut her throat on the right side and
then turned her head over and cut her on
the left side”.
While defendant was in jail, he demon-
strated to Sheriff Riddick how he and
Lizzie stood when he cut her, and how he
cut her on both sides. Then he told the
Sheriff that he ran his finger in her throat,
put his knife under the windpipe and cut
it in two. Also, while defendant was in
jail, on being asked by the Clerk of Su-
perior Court why he killed the girl, he
again stated that he killed her because
he loved her. Then he described the
killing and told a story to the effect that
the girl was pregnant and that they couldn’t
get married, and that they wanted to get
out of it the best they could. There was
testimony to the effect that the girl was
not pregnant. Defendant did not go upon
199 S.E.—3
the stand, but relied upon plea of transi-
tory insanity and offered testimony tend-
ing to show insanity of his grandmother,
and tending to show incidents of curious
ways and peculiar conduct on his part.
The State offered evidence contra.
Verdict: Guilty of murder in the first
degree.
Judgment: Death by asphyxiation.
Defendant appeals to Supreme Court,
and assigns error.
Kelly Jenkins, of Roanoke Rapids and
Irwin Clark, of Scotland Neck, for ap-
pellant.
Harry McMullan, Atty. Gen., and T. W.
Bruton and Robt. H. Wettach, Asst. Attys.
Gen.. for the State.
WINBORWE, Justice.
[1] (1) The exceptive assignment prin-
cipally pressed on this appeal is the refusal
of the court to allow defendant’s motion
for judgment as of nonsuit on the first de-
gree murder charge made in compliance
with the statute. C.S. § 4643. The motion
challenges the sufficiency of the evidence
to show premeditation and deliberation be-
yond a reasonable doubt. State v. Bit-
tings, 206 N.C. 798, 175 S.E. 299, and cases
cited.
It is pertinent, therefore, to refer to
principles applicable to the case in hand.
[2] Murder in the first degree is the
unlawful killing of a human being with
malice and with premeditation and delibera-
tion. C.S. § 4200; State v. Payne, 213
N.C. 719, 197 S.E. 573, and cases cited.
[3] The intentional killing of a human
being with a deadly weapon implies malice
and, if nothing else appears, constitutes
murder in the second degree. State v.
Payne, supra, and cases cited.
[4] “‘The additional elements of pre-
meditation and deliberation, necessary to
constitute murder in the first degree, are
not presumed from a killing with a deadly
weapon. They must be established beyond
a reasonable doubt, and found by the jury,
before a verdict of murder in the first de-
gree can be rendered against the prisoner.
State v. Miller, 197 N.C. 445, 149 S.E.
5902" State v. Payne, supra, 197 S.E.
at page 579.
[5] ‘‘Premeditation means “thought be-
forehand” for some length of time, how-
ever short. State v. Benson, supra [183
IN THE SUPREME COURT. [80
STATE v7. Bowman.
ised him beyond a reasonable doubt that the prisoner was
guilty, he could bring in a verdict of guilty, yet it would
hurt and do violence to his conscience. He was challenged
for eause by the State, the challenge was allowed, and the
prisoner excepted. We think there was no error in allowing
the challenge, for the juror was clearly exeeptionable. Tt is
the object of the law and the duty of the Court to see that the
prisoner has a fair trial, and at the same time to guard the
interest of the public; and to that end the jury impaneled
to pass upon the issue between the prisoner and the State
should be impartial and competent. A man who has con-
scientious scruples against capital punishment, no matter
how much disposed to discharge his duty, would be an un-
safe juror, because he would naturally be influenced by his
prejudices and go into the jury-box with such a bias in favor
of the prisoner as would render him incompetent to do justice
to the State. Therefore, he has been held to be an
(457) incompetent juror. People v. Daman, 18 Wend.,
351; Com. v. Fisher, 17 Serg. & Rawle, 155.
2. The prisoner excepted to the admission of the declara-
tions of Eliza Jane Bowman, the daughter of the prisoner,
in reference to the “last words” of her mother, the deceased,
They were clearly admissible for the purpose for which they
were proved, and the remarks of his Honor in commenting
upon this testimony before the jury were perfectly legiti-
mate. They were told it was for them to determine whether
the declaration was made in the hearing of the prisoner,
whether he heard and understood the statement, and if so,
what was his conduct on the occasion; did he immediately
take up the child and bear her away in his arms and keep
her constantly in his immediate presence while the company
remained; and if they believed this testimony, it was for
them alone to say what value was to bo attached to these cir-
cumstances as tending to prove the prisoner’s gnilt. State
v. Perkins, 10 N. C., 377.
3. The prisoner objected to the testimony of Professor
Redd on the ground that there was no notice given to the
prisoner or his counsel of the time of the disinterment of the
remains of the deceased, nor of the analysis of the organs and
398
N.C] JANUARY TERM, 1879.
STATE v. Bowman.
tissues taken from her body to be subjected to the test to
ascertain the presence of poison. The objection has no foun-
dation, and if it had, the proof is that Professor Redd was
accompanied by at least one of the counsel for the prisoner
when the body was disinterred ; but we know of no law which
gives the prisoner the right to be present in person or by
counsel or agent, when the body is disinterred, or when the
organs and tissues are subjected to a chemical analysis.
+. The prisoner moved in arrest of judgment on the
ground that under the Constitution, Art. IV, sec. 11, it is
provided that “no J udge shall hold the courts in the same
district oftener than once in four years,” and that Judge
Kerr, who presided in the Court in which the pris-
oner was tried, had held the courts in the district to (438)
which Randolph County was then and is now attached,
during a period short of four years. Under the amended
Constitution the judicial districts of the State were reduced
from twelve to nine, which caused a very considerable change
in the formation of the districts. This new apportionment
of the districts did not go into operation until after the first *
Thursday in August, 187 8, and this provision of the Consti-
tution had reference only to the ridings under the new
arrangement. Randolph County before the alteration of the
districts was in the Seventh, and is now in the Fourth Dis-
trict, which is not identical in its component parts with what
had been the Seventh. There was no violation of the Con-
stitution. Judge Kerr had the right to hold the Court in
Randolph County in the fall of 1878, and the motion in
arrest was properly disallowed. ;
Being fully sensible of the great stake the prisoner has in
the result of our deliberations, we have given this case the
most careful consideration, and have been unable to dis-
cover that he has been prejudiced by anything which has
occurred in the conduct of his trial. There is
Per Curiam. No error,
Cited: McLeod vy, Bullard, 84 N. C., 528; State v. Gee,
92 N. C., 761; State »v. Burton, 94 N. C., 949; State v.
Speaks, 95 N, C., 692; State v. Thomas, 98 N. OC. 606;
899
IN THE SUPREME COURT. [80
STATE Vv, PACKER.
State v. Byers, 100 N. C., 518; State v, Brackville, 106
N. C., 710; State v. Rollins, 113 N. C., 734; State v. Finley,
118 N. C., 1166; State y. Booker, 123 N. C., 725; Chemical
Co, v. Nirven, 130 N. C., 163; State y. Vick, 182 N. C.,
998; State v. Polter, 134 XN. C.. 733.
(439)
STATE v, MARY PACKER.
Liquor-selling —Sufficiency of Indictment —Port Wine —
Common Knowledge.
1. An indictment under the Act of 1876-77, ch. 38, for selling “intoxi-
cating liquors” js Sufficient without specifying the particular
kind of liquor.
2. On the trial of such indictment it was proved that defendant sold
port wine, but there was no evidence that it was intoxicating,
and after a verdict of guilty the Court refused a motion for a
hew trial: Held not to be error. The fact of its quality is a
Inatter of common knowledge, and can be passed on by the jury
without proof.
(State v. Stanton, 23. N. C., 424, cited and approved).
AMIsDEMEANOR, tried at April Term, 187 8, of New Hane
OVER Criminal Court, before Jf eares, J. .
The facts are sufficiently stated in the opinion. There
was a verdict of guilty; judgment; appeal by defendant.
Attorney-General for the State.
A.T. & J. London for the defendant.
Ditrarp, J. This is a prosecution under an act of the
General Assembly passed at the session of 1876-77, ch. 38,
Wherein it is enacted that it shall be unlawful for any per-
son to sell spirituous or malt or other intoxicating liquors
on Sunday, except on the prescription of a physician or for
medical purposes. The indictment framed under ‘this act
charges that defendant on Sunday sold to one White intox-
lcating liquors, negativing the exceptions. On the trial it
400
JANUARY TERM, 1879.
STATE v, PACKER.
was proved by White that he purchased and paid for port
wine. The jury returned a verdict of guilty, and thereupon
the defendant moved in arrest of judgment because the in-
dictment does not name the particular liquor alleged
to have been sold, and failing in this, she then moved (440)
for a new trial upon the ground that no testimony was
adduced to prove that port wine was intoxicating, which
motion being also denied, the defendant appealed.
It is sufficient, as a general rule, in an indictment for an
offense created by statute, to describe the offense in the words
of the statute, and there are but few exceptions. 1 Bish.
Crim. Law, sec. 359, and State v. Stanton, 23 N. C., 424.
The statute enumerates spirituous liquors and malt liquors,
as instances merely of intoxicating liquors; and then in
order to cover all other instances without naming them, was
the more general expression, “intoxicating liquors”; and
thereby in legal effect it is the same as if the statute had for-
bidden the sale of intoxicating liquors without other words,
The indictment charging the offense as a selling of intoxi-
eating liquors on Sunday is in a form to fit the proof of
guilt as it might turn out to be, and was so designed by the
Legislature, as we think, and is held to be sufficient, unless
there be something in the rule of law and practice in our
State upon the subject of the requisites of indictments in
such cases which shall compel a different construction. In
this State we have long had a law forbidding the sale of
spirituous liquors, a species of intoxicating liquors, by the
small measure without license. And the invariable practice
has been to charge the violation in the words of the statute, _
and no decision can be found holding such description to
be insufficient. It was always held competent to convict on
proof of the illegal sale of any one of the liquors embraced
within the scope of spirituous liquors.
So we think it was designed under the statute forbidding
the sale of intoxicating liquors on Sunday, that a charge
preferred in the bill of indictment in the words of the
statute should be sufficient without naming any particular
kind of liquors, and on the trial a conviction may be had
on proof of rum, brandy, or indeed any liquor that will
\
S0—26 401
“
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