MEMORANDUM TO Mr. William Dmn, dre, Acting Parole Commissibner
As per your request the following is a transcript of the record, including the most recel 15
PRISON DIVISION — BUREAU OF IDENTIFICATIO
RALEIGH, N. C.
shown in the files of this bureau, concerning:
Rosana Lichtner Phillips, #DR-507
Rast i
Ex
€ported data, as
ty, /
R. B. WILLIAMS, Acting Director
CONTRIBUTOR OF
FINGERPRINTS
NAME & NUMBER
Be € I., Pr, Dive
RawJigh, N. Ce
Caston Coe Be of ee
Castonia, N. C.
Be of Les Pr, Dive
Raleigh, N. Ce.
Rosanna Glenn
{32269
Rosanna Phillips
#4439
Rosana Lichtner
Phillips, #DRe 507
4 preve conve (as
Raleich, N. Ce).
M'RECEIVED com
not given SeBe and Le
9-21-42 inve murder
10-16 ~42 murder
appearins| on print #DR-507 Be of
DISPOSITION
sente 6-1-3536,
2 VIS e
rele to Sheriff
Durham Coe, N.C.
to be asphyxiated
11-20-42.
"y Py, Dive,
eae
NORTH CARO,
LINA
STATE ARCHIVIrs
wt
XBROGRAPHIC COPY BY.
ten 38 1986
NORTH CAROLINA
STATE ARCHIVES
NORTH CAROLINA
DURHAM COUNTY
I, Louise C. Mattox, Deputy Clerk Superior Court,
County and ctate aforesaid, do hereby certify the foregoing
and attached one (1) sheet to be a true and correct copy of
the Judgment in the case of STATE vs. ROSANA LIGHTNER PHILLIPS,
ETAL, ag same is taken from and compared with original filed
in this office. |
: WITNESS MY HAND AND OFFICIAL SEAL OF THIS COURT,
this the 16th day of October, 1942.
DEPUTY CLERK SUPERIOR COURT
J. MELVILLE BROUGHTON
GOVERNOR
STATE OF NORTH CAROLINA
OFFICE OF COMMISSIONER OF PAROLES
JUSTICE BUILDING
RALEIGH
The Supreme Court Decision in this case is
placed in the File of Daniel Phillips, husband
of Rosana Phillips.
The Governor's statement of non-intervention
in this case is located in the file of Daniel
Phillips.
Feni\\yes
|: it = \
rt
OCK 17 1942 }
NORTH CAROLINA | IN THE surenGh ca/ ”
_ DURHAM: COUNTY ©») | October Criminal Term, ate -
STATE.
Rosana, Lightner Phillap@e: sid, do hereby cortify the forersu
ae
got.
di ooh, Vth PREY ey 144 Se | ay ee ae a are : i ee " £2 HRN ge ei ie oy ytty EY
eaNk Caw webbie si oL. wick i we J je SAS ae vid te hale Sh bake treba Wii t Glew Asty
idn. this, criminal.action abil] of: indigtment: was (duly-s
returned in open Court against the defendant, charging: her with,
the capital, felony of murder, upon which she was duly arraigned
and entered her plea of not, guilty.: | Vhereupon’ at: this the, October
Terts.1942, of. Durham County, Superior, Court a jury was duly summoned,
selected, sworn and empanelled, which Jury, after hearing the evi- |
dence, the argument of censel and the. abange- of the: 2 Goaste ‘returned
for their verdict that the defendant ie guilty of aurder in | the
first degree. It further appears to the Court that the orime whereof
the deféndant stands convicted was committed subsequent to July ly
1935. Upon said verdict the Solicitor having prayed Judgment, it is,
i ORDERED, DECREED AND ADJUDGED by the Court that the defendant
Rosana Lightner Phillips, shall suffer the penalty of death by asphyxia-
tion and to that end it is ordered and adjudged that the Sheriff of
Durham County, in whose custody the prisoner now is, forthwith convey
to the State's Prison at Raleigh said prisoner, Rogana Lightner Phillips.”
and deliver said prisoner to the Warden of State's Prison, who, the
said Warden, on the 20th day of November, 1942, shall cause her, the
said Rosana Lightner Phillips, to inhale lethal gas of sufficient
quantity to cause death, whioh administration of such lethal gag
shall continue until said ari goner; Rosana Lightner Phillips, 1a dead.
This the 15th day of October, 1942.
Walter J. Bone,
JUDGE PRESIDING
CAPITAL CASE STATISTICAL SHEET NO. 1
Date: January 2, 1943
Nase: Rosana Lightner Phillips Sox: Feme pgo: 26 pace, Negro
County of conviction; Durham Date of conviction; October, 1942
Crime: MURDER x RAPE BURGLARY
(a) Weapon used Axe (a) Age of prosecutrix
Co-cefendant: Daniel Phillips Final action taken: Decline
Initial execution date: November 20, 1942 Did prisoner appeal? yY®8
| (a) Forma pauperis x
(bo) Regular appeal
Interviewed by the Commissioner: Yes Did prisoner admit guilt? No
Hearings: Several
Reprieved: No
Commuted: No Reason;
Did prisoner
Executed: Yes Methed; lethal gas admit guilt? No
Relation, if any
Race of injured party: white Sex of injured party; male to prisoner: one
Was counsel employed? Yes How long before trial?
Was counsel assigned? How long before trial?
Time between commissirn of offense and trial? About 2 months
Time between arrest of prisoner and trial? about 1$ months
Was prisoner taken to Central Prison for safekeeping?’ No
Previous record: Yes Did prisoner admit guilt at triale No
a AM
Way
9 , | CAPITAL CASE STATISTICAL SHEET NO, 1 fecal
Dominating motive for commission of crime: Rob deceased. of money
Mental status of prisoner: Good Education: Sixth grade
Physical condition: Normal Venereal disease: Yes
Parents; Living 2 Dead Place of birth of prisoner: S$. ¢.
Marital status of prisoner:
2 (Married x ); (Single ); (Divorced _+);- (Separated ) |
Domestic situation: 0. Ke Occupation of prisoner: Servant
Baptized on
Religious belief: Methodist Member yes _ Non-member ° Death Row? No
Military service: Fraternal organizations:
Habits of prisoner: }
Views of officiala:
OFFICIAL FAVORABLE UNFAVORABLE NEUTRAL
1. Judge x
2. Solicitor x.
4. Prosecuting witness
4, Relatives of offended party a
5. Private prosecution
6. Sheriff x
J. Deputy Sherifs
8. Chief of Police
9. Arresting officer
10, Trial jurors
ll. Clerk Superier Court
12. Register of Deeds
13. Coroner
14, County Commissioners
15. Police Officers
1
©. G. DUNN 32203
CONFERENCE REPORT TO BE MADE AS SOON AS POSSIBLE AFTER PRISONER IS RE
CENTRAL PRISON OR AT PRISON CAMP,
ParoLe Form No, 2
CEIVED AT
*DR-507
. Nanie’
Phillips, Rosanna
Married August 4, 1942 -
Age
25
t
Race
Colored
Church
St. Peter's Methodist
Gastonia, N. Ce
Education 6th
Military Service
Rev. Raleigh was Superintendent
Highland School, Gastonia, N.C), Mrs. Caldwell, teacher:
Fraternal
Habits:
Tobacco. Stopped drinking six months ago. Immoral Degenerate
c i
Previous Criminal Record:
Larceny - 2 years Central Prison - Discharged November 27, 1937. Drunk 2 cowmts - 30 days
each - jail. Fighting 2 counts - 6 months each - County Home Farm,
Prisoner’s account of crime: Day of week: Sun.
Time of day: 8:15 4 M.
Mon.X Tues. Wed. Thurs. Fri. Sat.
.....P.M. During working hours? Yes No
Does prisoner admit his guilt? No
Occupation at time crime was committed:
Domestic 5 months
Employer at time crime was committed:
Mr. and Mrs. Harry F. Watkins, Durham County N.C
Former Occupations: Former Employers:
Lived with Daniel J. Hugh Phillips}, my co-defendant and common law, in Gastonia, High |
Point and Durham since December 19$7.
: oe! : ; N. C.
Home address of prisoner at time crime committed: Near Durham N.C
Former places of residence: Born in Lilesville, N, Ce. December 28; Lo37 6 Reared in ,19
Gastonia in three-room farm house rented by grandparents, /19
Pad and Marie Lightner, Born out of wedlock.
Travels: Counties.
Very little Anson —
Gaston ~
Guilford
Durham
States.
Ne Ce
Nations.
Married to Daniel Phillips
August 4, 1942
York Se Ce
hs emma heim madd
2. illegitimate children
Name Address Relation
a
Family; John Glenn, age 9 years, and Dorothy Glenn, age four years, They are living with
my mother and step-father, Marie and Arthur Williams. Prize St., Gastonia, N.C..
i
John Lindell is father of John Glenn and Daniel Phillips is father of Dorothy..Bobh
chi ldren,_ have normal. bodies. The boy is in school.
Johnnie Laura is my father. He lives in Gastonia and works for City Ice Plant,
James Lightner, 407 Vale St., High Point, N. C,, Uncle
C7":
Have any members of family been in prison or insane asylum? No . If so give particulars:
Give names: of persons who might act as first friend:
Name: My family Address: Prize St., Gastonia, N. C.
Address:
Address:
IMPRESSIONS OF INVESTIGATOR OR SUPERINTENDENT
- Check items listed below appropriate to prisoner.
Liquor x.
Narcotics
Immorality x
Lack of Education.....x
Low Mentality ...
Poverty
Poor Health
Bad Domestic Situation
Bad Associations x
OHA Anepene_ Repeater
Habitual Criminal
: ; : Dangerous and Violent
Does prisoner express a desire for revenge against any state witness or other person?..... Deputy. Sherif
*
Does prisoner show resentment towards Judge, Solicitor, Sheriff, Jury or prison authorities?... Not a fair trial
Date for first hearing. % f eee.
Date for second hearing........ Siete
Date for third hearing oe ,
Date for fourth hearing
DATE: Qctober 15 « . 19. 48. SIGNED: Elizabeth Frye
Investigator or Superintendent
XBROGRAPHIC COPY By |
fro 38 tox"
NORTH CAROLINA
STATE ARCHIVES
STATE OF NORTH CAROLINA
OFFICE OF COMMISSIONER OF PAROLES
J. MELVILLE BROUGHTON
GOVERNOR JUSTICE BUILDING
RALEIGH
Family Continued;
Pad Lightner, Charlotte, N. C.,Uncle
Laura Jackson, York,South Cardina, aunt.
Rachel Moore, Lilesville, N, C., aunt,
Both grand parents are dead. No brothers nor sisters,
(PAROLE Form No. 1)
THE INFORMATION INDICATED BELOW IS REQUESTED OF CLERKS OF THE COURT BY THE
GOVERNOR UNDER AUTHORITY OF CHAPTER 414 PUBLIC LAWS OF N. C., SESSION 1935
NAME OF PRISONER
CRIME
PLEA SENTENCE
Phillips, Rosanna
Murder, lst degree
Durham County
To death Years
Months
TRIAL JUDGE
TRIAL SOLICITOR
DEFENSE COUNSEL
Judge W. J. Bone
Solicitor Wa. H. Murdock
State furnished attorney
Judge Sikes, Durhem, Ne C.
PRIVATE PROSECUTION
CO-DEFENDANTS
DISPOSITION
Daniel J. Hugh Phillips, husband,
Tobe asphyxiated
None Nov. 20, 1943. In jail two weeks and six days before
trial, I testified, pled not} guilty.
ARRESTING OFFICER ‘
Sheriff C. Q. Robinson
Gaston County
AVAILABLE CRIMINAL RECORD:
|
SIGNED:
ATR: ...... 19 aint OTK. Sena eae fa. y et, dled Cee inno k EOE ORs os
The reverse side of this form is left blank for the use of any court official or officer of the law who desires to comment either
upon the crime or the criminal for the benefit of the Parole Office.
OFFICE OF COMMISSIONER O} PAROLES
Raleigh, North Carolina.
INITIAL INTERVIEW WORK SHEET
ee ee eee
Avg. wage past year
Prison Reg. No.: S07 Parole Nos: Admitted; 11-15 19 42
Commitment Name; Rosanna Phillips True Neme; Same
Aliases; None ‘
Sex;__Female _ Rade: Colored Ave: ——25-
Durham Present wurder, lst degree
County Committing; i _Offense;: ; cabo
Sentence: To death _. Judge:.__We J, Bone
Date of Offense; 8-3 19 __#2 Orphan's Home; —None
/ AM:%__ifr, Sch. Age Age
Day or Wk Monday Hour; 8315 pus, or Ref.; Adm: Left:
Leisure Cc. Pe. & Jail Reason
or Work: Locality; COmtY [tnst; Adm:
CO Pee Vey i Te,
or City Age
Mi. Ser.; Joined; Branch;
Alcohol Invelved: No Type of
Length Sere: Discharge;
Piccolo Involved: No
Co-Defendants;.___ Daniel Phillips __}
None
Youth Organization:
None
Fraternal Organizations;
Belief God and/ %** Bible ,Both
Co-Defendants Convicted? _ Yes
Whole ants
Admits Guilt, —No Part;
Defense Atty State Furni shed Name
Private Pros;— None Atty
Employed at time offense;Domestic _
Month
Type
Week
—
(eee
, $125
Marital Status: Married
Denom. Preferred; -M.-E.—-Member; Yes
Leisure Activities; —_Movies Sometimes _
Date: 1941
Venereal Disease; yes
Age at death of Mother; _Father;
Reared by; ——Grandparents
Reared in; Lown
No. Dependents :2 children, age 9 & 4 wv.
Domestic
Usual Occupation;
Native of Ne 0.
CRS Oe Rs City)
None
Prisoner or in Family
Members of family convicted of felonies;
None
paRsanity ;
4
No. Prev. Convictions:Fcol:-__ Mis:
Number and relationship
[Interviewed by; Frye Date, —Ll-4-42
Pardoned or Paroled: No
: Date and Place : Copied by: Date:
Revokod: File Forwarded;Date;
Date and Reason
Education; Len St Bae : Work Sheet Posted By; Datos ___
None (NOTE); Include CCC with Military Servico,
Supplementary:
showing CCC as a branch,
Na le lett ade ai a ai Me ASU dean ne ts tna i i ais i see
oe
| XGROGRAPHIC COPY BY
feo 8 3098
NORTH CAROLINA
STATE ARCHIVES
oe
’ Parole Form No. 2
CONFERENCE REPORT TO BE MADE AS SOON AS POSSIBLE AFTER PRISONER IS
RECEIVED AT CENTRAL PRISON OR AT PRISON CAMP. . 7
Name Age Race Church
Glenn, Rosannb???6? Methodist
Single 17 Negro N. Gastonia, N.C.
Education eu eee ‘Miltary: Service he Fraternal ee
1933 6th grade No none
Highland School
Gastonia, N.C.
Habits:
Tobacco, drinks, immorality
Previous Criminal Record:
none
Prisoner’s account of crime:
. Gastonia, N. C., Apr.30, 1936 night time 1:30 A. M., I and Ruth May Lockhart
had been to Highland Cafe on a drinking party and on our way home we planned to break
in Pop Rogers (Col.) Store, North York Street. We found an iron rod about two feet long
and prized the staple on the door and went in. I took two silk dresses and two cotton
graneee- I hid the dresses in an empty house on Tam Yard road and then went home and
2 A.M. Policeman Armstrong came and arrested me and he took me to the empty house and I
got the dresses.
Does prisoner admit his guilt?_--y@aS-----------------------
Occupation at time crime was committed: . | Employer at time crime was committed:
House work for parents | Buster and Marie Glenn, __—~ Gastonia, peo. N. Cc
Former Occupations: Former Employers:
|
Nurse and maid (1 year) | Mrs. Bessie Wilson, 413 3rd St., Gastonia, N. c
>-ooonno=--- 2500-8 week nanan nannnn ann ~a weno eae see atm mm aan pS ramen mmm eM
ra Sobog? one cP Oem bante Me Ca Cg ts ee
Home address of prisoner at time crime committed:__ 410 N. York.Street, ----- ----Gastonia,-------------- N:.C.
Born Lilesville, BN C., reared in Gastonia, N.C. 19. ies
senses Cngaw tems cab laicciitan ss ste pts np th mie > sry,‘ ily oe, Se ue ets ew esp cap re em <i sey te engi ame are 2g ams RENESAS #°> —_—
Travels: Counties. States. Nations.
Gaston Bs Gs
(Parole Form No. 1)
THE INFORMATION INDICATED BELOW IS REQUESTED OF CLERKS OF THE COURT BY THE
GOVERNOR UNDER AUTHORITY OF CHAPTER 414 PUBLIC LAWS OF N. C., SESSION 1935.
{
NAME OF PRISONER CRIME PLEA SENTENCE
Sele Lad Bn 2 ike CSee
Glenn, Rosanna SB. Bee ls Gaston
Scarce Sr cuicthgt ck dae tececgiion te Months
TRIAL JUDGE TRIAL SOLICITOR DEFENSE COUNSEL
Judge Harding John G, Carpenter none
PRIVATE PROSECUTION CO-DEFENDANTS DISPOSITION
‘s Ruth liay Lockhart |
City Court - boundme i E years
over to Superior
Court
ARRESTING OFFICER
in Jail 34 days before tria
Policeman Armstrong ‘
I testi
aha: thane e pian on the witness
stand
Available Criminal Record:
June 3, 1936 work record
B grade Sewing room
PRAT Fos vinccsuiatiaseen aieeeittge versie we pterooieats GN ee AAEM io cnt scones haga a poem wrseltcslgs teoen etna thee org io 0 et SORE Rs SE En CISA
The reverse side of this form is left blank for the use of any court official or officer of the law who desires to comment either
upon the crime or the criminal for the benefit of the Parole Office.
Nasi aniecianatihenat nisi inion itnaacuitat ie Sosa ili a ion Sm gM Nt SW de nant naa nanb On) ss aa tala ai
Name Address Relation
Family: -i child, John Glenn, Jr., age 3. He is liv fing with AY. _ parents nicinioe Veli mabiiinen gh: sive Wea eee wan ca
bd Buster and Marie Glenn, 410 York Street, Gastonia, N. Cc.
No brothers nor sisters living. She clains that John Andy Lindell,
York Street, Gastonia, is the father of her st leet ema te child
b Have any members of family been in prison or insane asylum?.__.20 If so give particulars
Give names of persons who might act as first friend:
Name: Buster and Marie Glenn Address; ___410 York St., Gastonia, N.C.
(eee emir nas he den een sf cond we i wieepep somgeree cet
I tr he opr rp co mene vette epson nae epics nih sp ogc vinog gic Address:
TE TTT ee TEER Pe See seen os a ee te mgt moe gn ap wo an aig pe
SE TS re ce ew ay ee yg Se een ne tp er es
Bor beh og, RIP Bgpee ONE ee EMIT me meres rtcerant meni etn teenporn amelie a tyeicee ta fe es
IMPRESSIONS OF INVESTIGATOR OR SUPERINTENDENT
Check items listed below appropriate to prisoner.
‘ x
At present time prisoney a favorable attitude Liquor OO i Meer Nar ova vaca awe vaca antys oeecaget
Her conversations are normal and she is Wareotle ie toi og es hw at
intelligent in her conversation. Physically fit Tmmorality 225 te
to work, but willing to accept other people's bks
property for her personal use. She is concerneq ack of Education NaN ab var inde tater eternal
over the welfare of her child, In my opinion Tow: Mentality: one eee
her sojourn in prison will be helpful to her in
MORON cn Sieg oe ee AP
many ways. If her previous record reveals a
law breaker she is not a subject for parole, Poor Health -—-—-qen-ne-mon wen enna
If this is her first offense, she is a parole Bad Domestic situation _.---_..___
subject. Bad “Associations. .% 23
Youthful Inexperience _........_
Pambiial Crimiteal 0 08 ee
Dangerous and Violent _.__..._ |
“Does prisoner express a desire for revenge against any state witness or other perso he ei Pee ce ee
SS ce me a oe Oe a ey ee mee ee ae ee
SP ON eae OD te LY ee SN Se AO OO ce IS Se Aah TP OO EP GR On Ome ay Be aoe Om we en om ey me
TE SF ee Se A RS Se SE OE SO AO sa aN cee eae ck em wos a= Oe ow
LE LS ee SS OS SS OY SD ES GHD mS GM seme ee em, ces wie ee cme som cle o> caw eapy ele ed
ee em cae ee a se my
q3
3 STATE HIGHWAY & PUBLIC WORKS COMMISSION
BUREAU OF IDENTIFICATION
RALEIGH, N. C.
MEMORANDUM TO Mr. Gill June 12, 1936
As per your request the following is a transcript of the record, including the most recently reported data, as
shown in the files of this bureau, concerning:
jf 32269 Rosanna Glenn
J. WINDER BRYAN, Director
CONTRIBUTOR OF ARRESTED OR
H T
FINGERPRINTS NAME & NUMBER RECEIVED CHARGE DISPOSITION
No previous criminal record except # 32269
t Represents notations unsupported by fingerprints
" tive At bin tih. 5
Be pia
Me mins et ase j
_ , , ’ i) ame io ‘
i
~iatiidaaisaaniinbnstll
| RR AneTe pened. soman 10 fe area 0 emasontn if: om ee cia. ee ee
(7 fo youre An the Berth b wehdeawae! State Prigon, AR UN RM A eittoea
ay ) +4 - ‘ sity od }
pe a a ; i \ ‘
aly m Pala prigoner'e parenta are Buster ‘and Marie Glenn, econ oes
440 York Street, Gastonia, %, o, She saya that eho |
Tene Are hee oue se Joun tinea, leh ee piled dives i ee eee ae
sa
oa ome ee etd Sabtiie cate oh fee ee a ee
ered Fi ¥ ‘
& A 6 the, Parole oftiee panese ‘thie acon Bon ae pil Ge cage
June 2nd-1936
3 |
f l MEDICAL EXAMINATION BY DR. G. S. COLEMAN on_Rosanna Glenn: ECM ESI eit Sd cia a a
_ of STATE PRISONER, A ROMO iid cake San: oH Physical grade ____ A ee free
Sentenced from Gaston County. Term _2 Yrs Crime St. Brk, & Larcen y _
Date Commitment June 2nd-1936 when born.__Dec, 25th-1919 Birth place Laurelville, RARER:
White. Build_.(¢col) Med S. M. Sep. Div. Maiden name wife RAR ee SY hai
Father Buster. Glem oo Mother Marie Ti Diner Glenn hoses
Birth Place Laurelville, s, 18° iNOS Rai clei Birth Place Laurelvidie -.g oq. 3. er
Address 410 N. York, St, Gamtonia, N.C Address --410 N. York St, Gastonia, NaG. ees
Notify _Marie Glenn (Mother) ===” AUT 8G per cre eg Mn su ae -
Hiducation<- = GMA “GRACO oh ies en Occupation = NUPSe Mid. ee
ine ne ee ke ae
potes) Other examinations © oy uae Sema Treatments
Se ea ae ea eye Vaccination LW dont 1 MOM te
ae cam eee ge ee a ~-- | Typhoid No. 1 rapa ce ae ine |
BO eet cree a Typhoid No. 2 9714-36
Ears “OE ‘i. GR sia einai ee ee Typhoid No, 3 6-21-36 es eR Ne
MOO hp steed ke hme eR Ge Ghote ree pe ess ie aL
Heed eee ne ee INGO, eo ee ea pais 7 eRNU aA
Toa Oe mre chap otha age oe a a Ri ee WO. es
nar cee egret Neer in 6 al a Lise a
ee ee ee ee
BeBe ak i ag Rr § Rane nia es ie il Te |
Longe: OR: os See Pepe a es
Cie ee ee
He eee ee ee
Urine ao Pius TRG ike ee ge ee nt ean aa tren | artist pera ae te a
SG ee ee ae ee
in bie
Want eee ee
Weight ____. ee te ee
Wasserman _____ June 7th-19%6 4Plus _ tice hirer nimiimdains meses Ie ee: Ree MRNA GONNA u 2.)
Retierkg: Oe Oo ere ee
ET ERO PER
Fe ee RE PER eo ge ore roe er nee eg
32269,
PRISONER No.
“ACTION.”
mre ” ‘ 4
Po AS ON yeapeic. deen oe ——
SENTENCE. as - oaecne ee :
sis DATE RECEIVED June 4, 1936 Su z —— : ue
Paar yt
aE We ae
La
ise
oa
Me
ve aie,
Rage
ay Aang woe
Sze69
PRISONER No...
ACTIVE No.879
ACTION
DATE
JACKET No
Dec, 4, i956
county__Gaston
CRIMES? Be & L.
Mar. &, 100%
Dec. 2, 1.937
SENTENCE__© ates
i DATE RECEIVED
June 4, 1936
FILE LOCATION
ee
EMERY B. DENNY H. RUTTER Ps, a ol (Oe - Cj ELLIOTT
MAYOR CITY MANAGER CF ALS OF POLICE
CITY OF GASTONIA
“Combed Cotton Yarn Manufacturing Center of America’’
OFFICE CHIEF OF POLICE
GASTONIA, N. c.December léth, 1936
Edwin Gill
Commissioner of Paroles
Raleigh N.C.
Dear Sir: - Re: Rosanna Glenn
Rosanna Glenn has no criminal record in our Municipal Court
other than the case which Bhe is now servinge
Yours very tryly,
) | Ree. Rankin, Clerk
Municipal Court
Please furnish following information regarding:
Prisoner: Glenn Rosanna
Alias:
Number: 32B69
DATE OF RELEASE:
Vlad <2>) ye Ee,
Desired by: Seymour Furnished by:
PRISON DIVISION
* STATE HIGHWAY & PUBLIC WORKS COMMISSION
RALEIGH, N. C.
Prisoner: os QA-a4-7 A. 1 ae Alias:
Number: 2 A Abd F eR Race: Torte Ooo? Age: I]
Home Address: 4/ / O ede bp ft gx, } ae ae bu) He’ @ )
“ ‘3 L p
° Dy cating ae | en Ven pee a
Relative: ("A412 tir ™ Address:
a «I ois YE [Ae Deg Oe
County Convicted Wits Sere Court: fg
Date of Conviction: — | Y qb ‘Term: a. the
Crime: 4. i. Zz.
Present Camp Location: 5 fs
Paroled: Parole Revoked:
Escaped: Captured:
Discharged:
Previous Prison Record: “(-o_,.__
Charges Pending:
Prison Conduct and Grade Changes:
Os oF ae {2 a
Information desired by: Furnished by:
titi see = ni
FoRm NO, 9030 : ¢ / Zs
MEMORANDUM TO BE FILED WITH PAROLE OFFICE
CONTEMPORANEOUS WITH PROMOTION TO THE HONOR GRADE
Colored
Prisoner _Rosanna Glenn. == Race FOEHER Number _32269 >
I have recommended for the honor grade the above named, who has been under my observation
De Sathya) “\AReettd Dea PERE months. If he is promoted, I intend to use him in_ Sewing Room _ work.
eonitendd BTR IMRROMOY OXOPOL TOR ic ic ce ee Le ee
He has shown a cooperative spirit during the entire period of my observation except for_____________
Upon his release, the prisoner will reside in.______ Gee TON ee ee ee Couney:
The prisoner understands that he cannot be paroled unless he has an offer of employment or a
‘means of livelihood. The prisoner can secure employment with
(Name) (Address)
The prisoner is-especially fitted for: Domeatic: 2). ee i as work
The prisoner’s family now resides in J Gaetonia Ne. 0 EO Rar et Mama came SBE Bene Sue atllan rst gc :
(Name of town or county.)
REMARKS: (General estimate of the prisoner’s character)
os fee ee rs ae eee re MOO The re re Ee ae nea Sr re UP One
Pina Ohatae)
This prisoner \p¥e
For ‘the Penal Division.
(Send with each Hongr grade promotion request)
a
| XGROGRAPHIC Copy BY
Fee & jon,
NORTH CAROLINA
t___ STATE ARCHIVES
¢ Cthaetrye. SSVI G 79.
NAME
Pompey £ Yow
| 4S 487.1
| DOB OR AGE OCCUPATION sone RESIDENC
RECORD
CRIME DATE
RACE METHOD
SYNOPSIS
No Details GivEN.
_ APPEALS
SOURCE
She hichmond Dispatch SkG:V87/ 374
FRANK NEWTON OFFICE SUPPLY—DOTHAN
- PONELL, Elias ;
Executed 6 /¢ /76 (Don't know whether hanged or not-Halifax Co,, ‘Ns C..)
"The Defendant was indicted at Spring Term, 1875, of the
Superior Court of Edgecombe Co., and by consent the actio:
was removed to the Superior Court of Halifax Co., where i
The Ralesgh Weeh/y News was tried at the June Term, 1875, The Defendant being
found guilty of the murder of one Esadore Cohen as char-
: 7 ged in the Bill of Indictment appealed his conviction to
6/7/76 / 7 the Supreme Court of North Carolina (See Criminal Docket
No, 2, Page 11) & the Supreme Court case immediately
~—-._, hereinbelow cited), The Supreme Court at its January
Term, EM#& 1876, found no error (7; Nw C, 270 (1876)). At
——— ———— Spring Term, ® 1876, of the Halifax Co., N. C., Superior
Court the BR defendant was sentenced to be hanged at the
f execution in the County on Friday, Jdiine 2, 1876,
began the hours of 6 and 7 oclock in the morning.
Criminal Docket No, 2, page 195,
PRESSLEY, dohn, black,
electrocuted NCSP (Gaston Co.) on
if
7
|
|
i
|
ee + nm
$
re
fomned Necro Had Been
4{o Biel Electric i
r To
Soi ai
auue
P ‘
Met editor!
waatiawe Likes eC
Shale
Governor Ehringhaus yesterday
a a reprieve to John Press-
on counts Negro scheduled
io clectric chair, and
thera will electrocution at
Ce ait Prison today.
Under the terms of the reprieve,
the new death date set for Press-
ley, convicted of the murder of
s*
‘op Glover in Bessemer City a
nh
Gay
af
aC ye
. t
rat ie in the
be mo
Veost
year of9, is June 19.
The reprieve granted “to allow
irther study of the case," is the
granted Pressley this year
rat
thire
since the Supreme Court denied his
roppes) on Jar wary Commissione”
fof DParajes Hawin The held @ heare
) ing tor Pressley on March 16 and
the granting of the stay was not un-
Ox epee ted,
Next Friday, Tawrence Dingle
fand Cermie Willian Si Forsyth Ne-
proes ance seuler need te die in te
chamber, are scheduled to di
‘in the electrie chair for the abner
of John Gant, Winston-Salem ice
man, lust June,
PGs
i
$
;
i
ae,
i ms
Cae
re a
itn
9% pp tt
Sa ae
+ ie
“ab
fea ae
hae
i, ‘ %. y
My ty
yin? we,
sagt tf
riage ay
i ity
Wt ,
Bi 4 ie
Wye
ine t
AR
thik 2
Y 4
rath Pe
ee
fe
Pry,
“4 .
if
11-13-1936.
Se eee ess ae an
414 N.C.
the same as that offered by the plaintiff at
the trial of the former action; and that
the decision in the former action that
plaintiff by her own negligence contributed
to her injuries is res judicata, and conclu-
sive upon the plaintiff in this action.
The court was of the opinion that on all
the evidence offered by the plaintiff at the
trial of this action, she was guilty of con-
tributory negligence and for that reason
could not recover in this action.
The court was further of the opinion
that if the cause of action alleged in the
complaint in this action is not the same or
substantially the same as that alleged in
the former action, on the facts shown by
the evidence for the plaintiff, this action is
barred by the three-year statute of limita-
tions (C.S. § 441),
On the facts found by the court, and in
accordance with its opinion that in any
event the plaintiff on her own testimony
was guilty of contributory negligence
which barred her recovery in this action,
or that if the cause of action alleged in
the complaint in this action is not the same
or substantially the same as the cause of
action alleged in the complaint in the for-
mer action, the plaintiff is barred of re-
covery in this action by the three-year
Statute of limitations, the motion of the de-
fendant was allowed, and plaintiff except-
ed.
From judgment dismissing the action,
the plaintiif appealed to the Supreme
Court, assigning errors as shown by the
record,
Burney & McClelland, Herbert McClam-
my, and Rountree & Rountree, all of Wil-
mington, for appellant.
Bryan & Campbell and L, Clayton
Grant, all of Wilmington, for appellee.
CONNOR, Justice.
[1] At the hearing of. the defendant's
motion that the action be dismissed, for the
reason, among others, that the judgment
of nonsuit in the former action is a bar to
plaintiff's recovery in this action, the court
considered the evidence offered by the
plaintiff at the trial, and from such evi-
dence found the facts on which the motion
of the defendant was allowed. See Batson
v. City Laundry Co., 206 N.C. 371, 174-S.
E. 90. Ordinarily, if there was evidence
tending to show the facts on which a mo-
tion was allowed, or denied, to be as
183 SOUTH EASTERN REPORTER
found by the court, its findings of fact
will not be reviewed by this court. In the
instant case, we are of opinion that all the
evidence shows that the facts are as found
by the court. Its findings of fact will not
be disturbed.
[2] On the facts found by the court,
there was nO error in the order allowing
the defendant's motion, or in the judgment
dismissing the action on the ground that
the plaintiff is barred of recovery in this
action by the judgment of nonsuit in the
former action. «In affirming the judgment
of Judge Devin (Batson vy. City Laundry
Co., 205 N.C. 93, 170 S.E. 136, 137), this
court, speaking through the late Justice
Brogden, said: “A liberal interpretation
of plaintiff's testimony leads to the inevi-
table conclusion that at the time of her
injury she was not exercising ordinary
care for her own protection, and must
therefore bear the consequences of her un-
fortunate injury.”
The judgment is affirmed on the author-
ity of Hampton v. Rex Spinning. Co., 198
N.C..235,-.151-S.E; 266:
Affirmed.
DEVIN, J., took no part in the consid-
eration or decision of this case,
Queso
209 N.C. 363
STATE v. LIBBY.
No. 654,
Supreme Court of North Carolina,
Jan, 22, 1936.
{. Criminal law €=260(13)
Where accused, who Plead guilty in mu-
nicipal court to unlawful sale of liquor ap-
pealed, pleaded not guilty in superior court
and was tried on original warrants sent up
on appeal, original warrants properly identi-
fied held admissible to show date and corrob-
orate accused's plea of guilty (Code 1935, §
3411 (2) et seq.).
2. Criminal law 406 (4)
Plea of guilty on prior trial may be prov-
ed in subsequent trial for same offense,
-—-—__.
Appeal from Superior Court, Guilford
County ; McElroy, Judge.
For other cases sce same topic and KEY NUMBER in all Key Number Digests and Indexes
OLR RAND WPS ARON AL yo ts
ASRS 3
emmy,” ae
STATE y. PRESSLEY N.C. 415
183 S.E,
J. R. Libby was convicted of unlawful
sale of intoxicating liquor, and he appeals.
No error.
The defendant, J. R. Libby, pleaded
guilty in the municipal court of the city
of High Point for three violations of the
Turlington Act (Code 1935, § 3411(a) et
scq.), and gave notice of appeal to the
superior court of Guilford county at the
June, 1935, term of the superior court sit-
ting in Guilford county, N. C., before a
jury, with Judge P. A. McElroy presiding.
The defendant was again convicted. of
the aforementioned three violations pf the
Turlington Act on three warrants sworn
out in the High Point municipal court.
The court consolidated the cases for
judgment, and all of the cases were con-
solidated with the consent of the counsel
for the defendant for judgment, and the
defendant was sentenced to serve eighteen
months in the county jail of Guilford
county, N. C., to be assigned to work under
the State Highway and Public Works Com-
mission. The defendant excepted, assigned
crror, and appealed to the Supreme Court.
Gold, McAnally & Gold, of High Point,
for appellant.
A. A, F. Seawell, Atty. Gen., and John
W. Aiken, Asst. Atty. Gen., for the State.
PER CURIAM.
The defendant contends: “There is the
fundamental Principle of evidence that
Proceedings in a court of record are evi-
denced by the record, and proof outside of
the record is inadmissible to establish such
Proceedings, without proof of the loss or
destruction of the record. Gauldin y,
Town of Madison, 179 N.C. 461, 102 S.E.
851, 10 A.L.R. 1497."
[1] The above is well settled by law, but
is not applicable on the present record.
The defendant, in the High Point munici-
pal court, pleaded guilty on three warrants
charging him with the unlawful sale of
intoxicating liquor. He was sentenced and
appealed to the superior court and pleaded
not guilty, and was tried and convicted by
the jury, and again sentenced and appealed
to the Supreme Court. In the superior
court the evidence was plenary as to the
unlawful possession of intoxicating liquor
as charged in the warrants. The original
Warrants were sent up on the appeal and
defendant was tried on same. The war-
fants were introduced and identified by
officers present at the hearing when the
defendant pleaded guilty in the High Point
municipal court. They were offered to
show the date and in corroboration of de-
fendant’s plea of guilty. The warrants
themselves showed the plea of guilty and
were fully identified as the records in the
High Point municipal court.
[2] It is well settled that a plea of guilty
on a prior trial may be proved in a sub-
sequent trial for the same offense.
In the trial in the court below, we see
no prejudicial or reversible error,
No error.
@ftnccrosan, »)
209 N.C. 3m:
STATE v. PRESSLEY,
No. 507.
Supreme Court of North Carolina,
Jan. 28, 1936,
Criminal law > 1069 (6)
Appeal would be dismissed where noth-
ing had been done toward perfecting appeal,
time for serving statement of case had ex-
pired, and no extension of time for filing had
been recorded. :
oO
John Pressley was convicted of first de-
gree murder, and he appeals. On motion
by the State to docket and dismiss appeal.
Appeal dismissed.
A. A. F. Seawell, Atty. Gen., and F. W.
Bruton, Asst. Atty. Gen., for the State.
STACY, Chief Justice.
At the April-term, 1935, Gaston superior
court, the defendant herein, John Pressley,.
was tried upon indictment charging him
with the murder of one Vester Glover on
April 13, 1935. The jury for their ver-
dict say: “We find the defendant guilty
of murder in the first degree.” The judg-
ment of the court was that the defend-
ant suffer death by electrocution.
From the judgment thus entered, the de-
fendant gave notice of appeal to the Su-
preme Court and by consent was allowed
sixty days to make up and serve case on
appeal, and the solicitor was given sixty
days .thereafter to serve exceptions or
counter case. The clerk certifies that noth-
@=For other cases see Same topic and KEY NUMBER in all Key Number Digests and Indexes
BP pa”
Peat |
i i
%
* Cee RR Ce Fue ®
ogy
416 N.C.
ing has been done towards perfecting the
appeal; that the time for serving state-
ment of case has expired; and that ‘no ex-
tension of time for filing same has been
recorded in his office. State v. Williams,
208 N.C. 352, 180 S.E. 663; State v.
Brown, 206_N.C 747, 175 S.E. 116.
The motion of the Attorney Gencral to
docket and dismiss the appeal is allowed
on authority of State v. McLeod, 209 N.C,
54, 182 S.E. 713, and cases there cited,
Appeal dismissed.
209 N.C. 300
STATE v. LONG.
No. 731.
Supreme Court of North Carolina,
Jan, 22, 1936.
Criminal law €>1069(6)
Appeal would be dismissed where noth-
ing had been done toward perfecting appeal,
time for serving statement of ease had ex-
pired, and no extension of time for filing had
been recorded.
—_—_~>___—.
William Long, alias Buster Long, was
convicted of first-degree murder, and he ap-
peals. On motion by the State to docket and
dismiss appeal.
Appeal dismissed.
A. A. F. Seawell, Atty. Gen., and T. W.
Bruton, Asst. Atty. Gen., for the State.
STACY, Chicf Justice.
At the May term, 1935, Alamance su-
perior court, the defendant herein, William
Long, alias Buster Long, was tried upon in-
dictment charging him with the murder of
one Sam Minor on January 11, 1935. The
jury for their verdict say the defendant is
“guilty of murder in the first degree.”
Whercupon, it was adjudged that the de-
fendant~suffer death by electrocution.
From the judgment thus entered, the de-
fendant gave notice of appeal to the Su-
preme Court and was allowed to prosecute
same in forma pauperis. The clerk certi-
fies that nothing has been done towards
perfecting the appeal; that the time for
serving statement of case has expired; and
183 SOUTH EASTERN REPORTER
that no extension of time for filing same has
been recorded in his office. State v. Press-
ley (N.C.) 183 S.E. 415, this day decided.
The motion of the Attorney Gencral to
docket and dismiss the appeal will be al-
lowed on authority of State v. McLeod, 209
N.C. 54, 182 S.E. 713, and cases there cited.
Appeal dismissed.
QD
29 N.C. 13%
LAY v. GAZETTE PUB. CO.
No. 548,
Supreme Court of North Carolina.
Jan, 22, 1936.
{. Libel and slander G=I 12(2)
Bvidence held to establish that publica-
tion of false statement that Plaintiff had been
arrested for leading and participating in riot
was result of honest mistake, and was not
malicious, precluding recovery of punitive
damages,
2. Damages €=91 (1)
Punitive damages may he awarded only
when conduct of defendant resulting in in-
jury to plaintif€ was not only wrongful but
also malicious or wanton and reckless,
3. Libel and slander C=120(1)
Where evidence established that publica-
tion of false statement that plaintiff had been
arrested for leading and participating in riot
was in good faith as result of honest mistake,
and that, within ten days after receipt of
plaintiff's letter stating facts, defendant pub-
lished in its newspaper full correction, apol-
ogy, and retraction, plaintiff was entitled to
recover only actual damages (C.S. § 2430).
4. Libel and slander €=123(9)
In action for libel based on publication
of false statement that plaintiff had been ar-
rested for leading and participating in riot,
whether plaintiff had suffered actual dam-
ages held for jury.
5. Libel and slander C>7(1)
Publication of false statement that plain-
tiff had heen arrested for leading and par-
ticipating In riot held libelous per se, enti-
tling plaintif! to recover at least nominal
damages,
—_—_-____
Appeal from Superior Court, Gaston
County; Hill, Special Judge.
@For other cases see same topic and KEY NUMUER ia all Key Number Digests and Indexes
som sh
wii.
DAIS mt a ee HN
Cee
Hy Sa ih
LAY vy. GAZETTE PUB. CO. N.C; 417
- 183 8.E,
Action by Thomas L. Lay against the
Gazette Publishing Company. From a judg-
ment dismissing the action as of nonsuit,
plaintiff appeals.
Reversed.
This is an action to recover damages,
both actual and punitive, for the malicious
publication by the defendant in the issue of
its newspaper, the Gastonia Daily Gazette,
of September 6, 1934, of a news item con-
cerning the plaintiff which, it is alleged in
the complaint, is false and libelous.
The plaintiff is now and was prior to
September 6, 1934, a textile operative. He
is about 33 years of age, and prior to said
date had been employed from time to time,
since. he was 16 years of age, by manu-
facturers of textiles in Gaston and other
counties in North Carolina. He was and
is now dependent upon such employment as
a means of earning a living for himself and
his wife and children. During the year
1934 he was a resident of Lincoln county,
N. C., where, prior to September 6, 1934,
he had been employed by a textile manu-
facturer doing business in said county.
Commencing during the spring of 1934 and
continuing through the summer and until
some time during the fall of 1934, there
was a strike by textile operatives in Lin-
coln county, and in other counties in North
Carolina. The plaintiff, as a member of
the textile union which had ordered the
strike, at its commencement joined in the
strike. Neither the plaintiff nor his wife,
who is also a textile operative, have been
able to secure employment by a manufac-
turer of textiles, doing business in North
Carolina, since the ending of the strike
some time during the fall of 1934,
The defendant is the publisher of the
Gastonia Daily Gazette, a newspaper which
circulates throughout Gaston county, and
other counties in North Carolina. Among
its subscribers and readers are officers and
employees of textile mills, and others in-
terested in the manufacture of textiles.
In its issue of September 6, 1934, the de-
fendant published in the Gastonia Daily
Gazette a news item as follows:
“Seventy-Five Pickets Locked Up in
Lincolnton.
“Lincolnton, N. C. Sept. 6th. Seventy-
five men and women at the Roseland Mill
were jailed this afternoon by Sheriff Forn-
ey Reinhart on charges of trespassing.
They were interfering with the paying off
of a group of Loyal Workers, and became
183 S.E.—27
incensed when they did not receive any
pay. They created a disturbance on the
mill grounds and were promptly arrested
and thrown into the county jail. Tom
Lay, Local Union Leader, was among the
ring leaders arrested.
“Other Union Leaders said that the fly-
ing squadron at Shelby had been notified,
and.that they were en route to Lincolnton
to free their seventy-five comrades from
jail. County officers here were prepared
to resist them. The county jail is full, as
the Sheriff has been very active.”
Thereafter the plaintiff wrote and caused
to be delivered to the defendant a letter as
* follows:
“Lincolnton, N. C., Dec. 31, 1934,
“Mr. H. A. Querry, Editor,
“Gastonia Daily Gazette,
“Gastonia, N: C.
“Dear Mr. Editor:
“The news article printed in The Gastonia
Daily Gazette on Thursday, 6 Sept. 1934,
on the front page of your paper, stating that
‘Tom Lay, Local Ugion Leader, was among
the ring leaders’, is false and defamatory
and each and every word related in said
article hereinafter mentioned concerning me
is false and defamatory. ‘Fhe said article
in reference more particularly reads as
follows: (Here follows copy of the news
item as published by the defendant in the
issue of the Gastonia Daily Gazette on 6
Sept. 1934)
“T hope to hear from you in the immediate
future. I want the correction and a re-
traction made.
“Yours truly, Tom Lay,
“Lincolnton, N. C.”
Thereafter in the issue of its newspaper,
the Gastonia Daily Gazette, dated January
2, 1935, the defendant published the follow-
ing:
“Tom Lay was Not Arrested Sept. 6.
“Gazette corrects error relative to ar-
rest of Tom Lay in connection with strike
riots.
“On Sept. 6, 1934, the Gazette published
a story from its Lincolnton correspondent
about the arrest of pickets at the Roseland
Mill in Lincoln County. It was stated in
the story on the authority of the Lincolnton
correspondent that Tom Lay was one of
the ring leaders in the strike, and was
Placed in jail. The Gazette learns from
Mr. Lay and from the Sheriff of Lincoln
County that he was not arrested. In justice
to Mr. Lay, this newspaper corrects the
ike,
the
- an-
odding-
nce
zen-
yeen
that
con-
sath.
oth-
¢
d
sole
ries,
Bt the
bs «the
ately
nter-
1 not
tself,
rule
trust
N. G
Iirpose in
eshat
is eS-
104
7 34,
s the
‘Veill,
being
in the
sutors
rand-
Licin Al
RA : |
STATE Vv.
RAGLAND N.C. 285
Cite as 41 S.E.2d 235
:3 the codicil, “the stock of said company
:s to be held in trust in equal amounts for
each of my grandchildren”, clearly mani-
Zest an intention of the testator to make
.1 immediate gift to each of his grand-
‘i]dren. And careful consideration of
-her provisions of the will fails to show
contrary intention on the part of the
testator.
(4] Thus, under the above principles of
‘aw as applied to the case in hand, the court
below correctly held that each of the grand-
children of the late Charles H. Robinson
living at the time of his death took under
his will a vested interest in one-ninth of
‘ye trust estate created, the enjoyment and
sossession only being deferred until the
-ermination of the trust. Therefore, the
grandson Charles Robinson Hanes, living
at the time of the death of his grandfather,
cquired a vested interest in- the trust es-
-ate, and the same passed under his will to
‘is wife, the defendant Delphine Muse.
The judgment below is affirmed.
w
° E wey NUMBER SYSTEM
T
»97 N.C, 162
STATE v. RAGLAND.
No. 75.
Supreme Court of North Carolina,
probative value of such evidence depends
upon the attendant circumstances.
3. Arrest €=71
An officer who arrests a prisoner has a
right to take any property which the pris-
oner has about him, and which is connected
with the crime charged, or which may be re-
quired as evidence.
4. Criminal law €=1169(3)
In rape prosecution, sheriff’s testimony,
that defendant had inquired of him wheth-
er prisoners who had escaped from prison
camp had been captured, was not prejudi-
cially erroneous, where defendant in his vol-
untary written statement, which had been
admitted without objection, stated that he
and other prisoners had escaped from
prison camp and that he had wrongfully
tried to implicate one of those prisoners as
the one who committed the rape.
5. Criminal law 6—406(1), 412(1)
Declarations and admissions of a de-
fendant are competent against him in a
‘ criminal action.
p>"
Appeal from Superior Court, Martin
County; Henry L. Stevens, Jr., Judge.
~ Otis Ragland was convicted of rape, and
he appeals.
No error.
Criminal prosecution tried upon an in-
dictment charging the defendant with rape.
The evidence tends to show that on 8 No-
Feb. 26, 1947.
1. Criminal law €=393(4)
In rape prosecution, testimony of
sheriff that tracks made by shoe that de-
fendant was wearing on his right foot when
arrested and tracks leading from prosecu-
trix’ house were similar, was properly ad-
mitted over objection that, when sheriff took
defendant’s shoe and fitted it into tracks
leading from prosecutrix’ home, it was tan-
tamount to requiring defendant to give tes-
timony against himself.
2. Criminal law €=393(4)
The similarity of footprints is admis-
sible as tending to identify the accused as
the one who perpetrated the crime, and the
vember, 1946, the prosecutrix, a married
woman, was alone at her home. The de-
fendant, whom the prosecutrix did not
know at that time, but does know now,
passed near her home between 12:00 noon
and 12:30 P. M. Between 12:30 and 1:00
o’clock P. M., of the same day, she had gone
to the pump, which is two or three steps
from her porch, to get water for dinner.
Immediately thereafter the defendant jump-
ed into the kitchen, threw his hand over her
face, knocked her glasses off, choked her,
put a coat over her head, overpowered her
and had sexual intercourse with her against
her will.
A voluntary statement made by the de-
fendant was introduced in evidence with-
on Poh as
440 W. Va.
evidence to show that plaintiff had no
knowledge of gasoline being in the stream.
Unless the plaintiff knew, or should have
known, of the presence of gasoline, the
plaintiff’s act of lighting a mat¢h would not
constitute contributory negligence. De-
fendant introduced evidence which tended
‘to show that plaintiff knew gasoline was
discharged from the siphon into or near
the stream, and that the plaintiff threw a
lighted match into the water. The testi-
mony of the hospital interne and physician
gave the plaintiff's testimony support and
weakened the conflicting evidence of de-
fendant. In such situation it would be mere
speculation to say that such testimony was
or was not prejudicial to defendant. It suf-
27 SOUTH EASTERN REPORTER, 2d SERIES
fices to say that the presumption of preju-
dice remains, as it is not clear that the jury's
verdict was unaffected thereby.
The court should have sustained defend-
ant’s motion to set aside the verdict and
grant it a new trial for the reasons that the
court’s rulings in refusing to give defend-
ant’s instruction No. 16 and in admitting
illegal and prejudicial testimony of the hos-
pital interne and physician are erroneous,
The judgment of the Circuit Court of
Kanawha County, for the reasons above
indicated, is reversed, the verdict set aside
and a new trial awarded.
Judgment reversed; verdict set aside;
new trial awarded.
STATE v. REDFERN
N.C. 441
27 8.E.2d 441
223, N.C. 561
STATE v. REDFERN.
No. 433.
Supreme Court of North Carolina.
Noy. 10, 1943.
1. Criminal law €=823(13)
Failure to add, after giving state’s
contention that jury ought to scrutinize de-
fendant’s evidence because of his interest
in outcome of the verdict, that if jury
found defendant’s evidence worthy of be-
lief it would be their duty to give it same
weight as that of any disinterested witness
did not constitute error, in view of correct
instruction relative to weight and credibil-
ity to be given testimony of interested wit-
nesses and parties testifying in their own
behalf.
2. Criminal law ©>805(1), 822(1)
A charge should be considered con-
textually, and it is not essential that trial
court should charge jury as to law in con-
nection with cach contention of the par-
ties.
3. Criminal law ©=805(1)
In criminal prosecution, it is better
practice for trial court to give a summary
or recapitulation of the evidence, a state-
ment of contentions of the parties, and an
explanation and declaration of the law
arising on facts, rather than attempting to
charge jury as to law in connection with
each contention of the parties.
—_——————
Appeal from Superior Court, Wake
County; J. J. Burney, Judge.
John Willie Redfern was convicted of
murder in the first degree, and he appeals,
assigning errors.
No error.
Criminal prosecution tried upon indict-
ment charging defendant with the murder
of one Zeb Sturdivant. Verdict: Guilty
of murder in the first degree. Judgment:
Death by asphyxiation.
The defendant appeals, assigning errors.
A.B. Breece and Thomas W. Ruffin, both
of Ralcigh, for appellant.
Harry M. McMullan, Atty. Gen., and
George B. Patton and Hughes J. Rhodes,
Asst. Attys. Gen., for the State.
27 S..2d—28%
DENNY, Justice.
The defendant’s first exception is to the
following portion of his honor’s charge:
“You will remember what he said about
that, and he asked him why did he want to
shoot him and he said because he was
afraid he would shoot him, so the State
says you ought to scrutinize the evidence
of the defendant because of his interest in
the outcome of your verdict in this case;
that you ought to be satisfied and beyond a
reasonable doubt that the defendant is
guilty of the crime of murder in the first
degree and that you ought to so find.”
[1] ‘The defendant contends that in giv-
ing one of the contentions of the State,
towit, that the jury ought to scrutinize the
evidence of the defendant because of his
interest in the outcome of the verdict, the
court committed prejudicial error by omit-
ting to add that after they had scrutinized
the evidence of the defendant if they found
it worthy of belief it would be their duty
to give to the defendant’s evidence the
same weight and credibility of that of any
disinterested witness.
This exception cannot be sustained, since
the court, in connection with the explana-
tion and declaration of the law arising on
the facts, gave the correct instruction rela-
tive to the weight and credibility to be
given the testimony of interested witnesses
and parties testifying in their own behalf.
On this question ‘his honor charged:
«“* * * Tn determining the weight to
be given to the testimony of the witnesses
you are authorized and it is your duty to
consider the relationship of the witnesses
to the party, if any is shown, their interest,
if any, in the result of the action, their
prejudice or bias, if any exists, and taking
into consideration such relationship, in-
terest, bias or prejudice in determining
what weight you will give to their testi-
mony, but the court charges you that if,
after such consideration you find that such
witnesses have testified truthfully it will be
your duty to give to the testimony of such
Witness the same weight and credit that
you would give to any disinterested or un-
biased witness.”
[2,3] Since the charge should be con-
sidered contextually, State v. Iairston, 222
N.C. 455,23 S.E.2d 885; State v. Manning,
221 N.C. 70, 18 S.E.2d 821; State v. Shep-
herd, 220 N.C. 377, 17-S.E.2d 469; State
y. Henderson, 218 N.C. 513, 11 S.E.2d 462;
ee
ibd ar (oxeM) dSON fossa ‘z0p Ton Soy Sy0eTq SOTIITM
*
om he
¥
ay
442 N.C.
State v. Smith, 217 N.C. 591, 9 S.E.2d 9,
it is not essential that the court should
charge the jury as to the law in connection
with each contention of the parties. In
fact the better rule or practice is for the
court to give (1) a summary or recapitula-
tion of the evidence; (2) a statement of
the contentions of the parties; and (3) an
explanation and declaration of the law
‘arising on the facts.
We have carefully examined the other
exceptions and they cannot be sustained.
In the trial below, we find no error.
KEY NUN'BER SYSTEM)
°
4Omse
UNIVERSAL C. I. T. CREDIT CORPORA:
TION v. REID MOTOR CO. et al.
No. 385.
Supreme Court of North Carolina.
Noy. 3, 1943.
Appeal and error C635(2)
Where record and case on appeal failed
to show summons or organization of the
court, appellee’s motion to dismiss the ap-
peal was allowed. Supreme Court Rules,
rule 19.
Appeal from Superior Court, Cabarrus
County; WIT. S. Burgwyn, Special Judge.
Action by Universal C. I. T. Credit Cor-
poration against Reid Motor Company and
Charles E, Goodman. From an adverse
judgment, the defendant Charles E. Good-
man alone appeals.
Appeal dismissed.
C. M. Lewellyn, of Concord, for plain-
tiff, appellee.
\W. S. Bogle, of Concord, for defendant,
appellant.
PER CURTAM.
The motion of plaintiff, appellee, to dis-
miss the appeal, for that the record and
case on appeal fail to show summons or or-
ganization of the court, must be allowed.
Rule 19; Brown v; Johnson, 207 N.C. 807,
178 S.E. §70. Nor are there stipulations
to cure the omissions in the record.
27 SOUTH EASTERN REPORTER, 2d SERIES
However, we have examined the record
as presented, and find no error in the trial.
The evidence was sufficient to carry the
case to the jury, and to support the ver-
dict in favor of the plaintiff on the de-
terminative issues submitted. The charge
of the court was free from error.
Appeal dismissed.
° KEY NUMBER SYSTEM
4ums
SMITH v. WHITLEY et al.
No. 381.
Supreme Court of North Carolina.
Nov. 3, 1943.
1. Negligence €=56(3)
Where violation of the law is relied
upon to establish negligence, there must be
a causal connection between the violation
and injury inflicted in order to warrant
recovery.
2. Negligence €=56(1)
Fact that defendant has been guilty
of negligence, followed by an injury, does
not make him liable for that injury, unless
the connection of cause and effect is
established.
3" Carriers ©=316(1)
In passenger’s action for injuries sus-
tained in airplane crash, doctrine of “res
ipsa loquitur’ could not be applied to
establish pilot’s negligence, since any num-
ber of causes, including causes over which
pilot had no control, might have been
responsible for plane falling.
See Words and Vhrases, Permanent
dition, for all other definitions of
“Res Ipsa Loquitur”.
4. Evidence C>20(2)
It is common knowledge that airplanes
fall without fault of pilot.
5. Carriers €=320(30)
Evidence was insufficient to present
question for jury as to whether passenger
could recover from owner and_ pilot for
injuries received in airplane crash, where
only showing of negligence was that pilot
was carrying a passenger without. license
required by law, and there was no further
STATE v. GRASS N.C. 42
27 S.E.2d 443 443
showing that absence of the license was N.C. 378, 177 S.E: 170. “The breach of
proximate cause of the crash. CS. § 567.
———_>—____—_
Appeal from Superior Court, Cabarrus
County; W. H. S. Burgwyn, Special Judge.
Action by James A. Smith against Lewis
J. Whitley and another for personal in-
juries received in an airplane crash. From
a judgment as in case of nonsuit entered
when the plaintiff had introduced his evi-
dence and rested his case, CS. § 567, the
plaintiff appeals, assigning error.
Affirmed.
This-is an action to recover damages for
personal injuries reccived in an aeroplane
crash alleged to have been caused by the
negligence of the defendants.
From a judgment as in case of nonsuit
entered when the plaintiff had introduced
his evidence and rested his case, C.S. § 567,
the plaintiff appealed, assigning error.
Bernard W. Cruse and B. W. Black-
welder, both of Concord, for appellant.
Hartsell & Hartsell, of Concord, for
appellees.
PER CURIAM.
The position principally relied upon and
urged by the appellant is that there was
evidence that the pilot of the crashed
acroplane was piloting the machine and
carrying a passenger without the license to
Carry passengers required by law. While
it may be conceded that the pilot of the
aeroplane, the defendant Nelson, did not
have such a license and was nevertheless
carrying the plaintiff as a passenger, which
would constitute negligence, there is no
evidence in the record that this negligence,
the absence of the passenger carrying
license, was the proximate cause of the
aeroplane crash. In truth there is no
evidence of what caused the crash. The
plaintiff, James A. Smith, testified that “the
plane went into a spin and crashed and I do
not know why”, J. W. Nelson, one of the
defendants, who was piloting the plane,
testified as a witness for the plaintiff: “I
don’t know just why the plane crashed;
it just came down in a spin with the nose
to the ground”.
[1-5] There must be a causal connec-
tion between the violation of the law, as
the negligence relied upon, and the injury
inflicted. Burke v. Coach Co.;"198" N.C:
8, 150 S.F. 636; Jones v. Bagwell, 207
duty must be the cause of the damage. The
fact that the defendant has been guilty of
negligence, followed by an injury, does
not make him liable for that injury, which
‘is sought to be referred to the negligence,
unless the connection of cause and effect is
established”, Byrd vy. Express Co., 139 N.
C. 273,.51 S.E. 851; Carter v. Realty Co.,
223 N.C. 188, 25 S:E.2d 553. The doctrine
of res ipsa loquitur does not apply because
any number of causes may have been re-
sponsible for the plane falling, including
causes over which the pilot has absolutely
no control, it being ‘common knowledge that
aeroplanes do fail without fault of the pilot.
Rochester Gas & E. Corp., v. Dunlop, 148
Misc. 849, 266 N.Y.S. 469, annotations 99
A.L.R., 186.
The judgment of the Superior Court is
affirmed.
° KEY NUMBER SYSTEM
aAamse
STATE v. GRASS.
No. 364.
Supreme Court of North Carolina.
Nov. 3, 1943.
Criminal law ©=1023(13)
An attempted appeal from order over-
ruling defendant’s motion for new trial
after affirmance on appeal would not lie.
—_>_____
Appeal from Superior Court, Cabarrus
County; Wilson Warlick, Judge.
Clyde Grass was convicted of two homi-
cides and, after judgments were affirmed
on appeal, made a motion for new trial,
which was overruled, and, from order
overruling his motion, he appeals. On
state’s motion to dismiss appeal.
Judgments affirmed, and appeal dismissed,
Sce, also, 223 N.C. 31, 25 S.E.2d 193.
Motion by State to dismiss appeal.
At the October Term, 1942, Cabarrus
Superior Court, the defendant was. tried
upon indictments charging him with two
homicides, which resulted in convictions
and sentences, one of them death. The de-
fendant appealed. The judgments were
°S6 N.C. 41 SOUTH EASTERN REPORTER, 2d SERIES
out objection. The substance of the state-
ment is to the effect that the defendant and
Chester Morris and several other prisoners,
escaped from a prison camp on 3 November,
1946, That the defendant spent the night of
7 November, 1946, in a tobacco barn near
the home of the prosecutrix. He went to
the house and saw a white woman standing
at the pump getting water. When she went
into the house, he walked up on the porch.
He saw her standing in the room. He then
picked up a coat that was on the porch, went
into the room, put the coat over her head;
then the statement reads: “J knew that I
was wrong and I left the coat over her
head; and ran back to the railroad track
through some woods I came in. Shortly I
was caught and. taken back to Martin
County jail and made a false statement to
Sheriff Roebuck and Deputy that Chester
Morris, one of the prisoners who escaped
with me, was the one who committed the
crime on the white woman. I told Sheriff
Roebuck, trying to protect myself, and what
I said about Chester Morris was all wrong,”
The defendant offered no evidence,
Verdict: Guilty of rape. Judgment:
Death by asphyxiation. The defendant ap-
peals, assigning errors,
Harry M. McMullan, Atty. Gen., and
T. W. Bruton, Hughes J. Rhodes and Ralph
M. Moody, Asst. Attys. Gen., for the State.
H. L. Swain, of Raleigh, for defendarit.
DENNY, Justice.
{1] The defendant’s first exception is to
the admission of the testimony of Sheriff
Roebuck, relative to the similarity of the
tracks made by the shoe the defendant was
wearing on his right foot at the time he was
arrested, and tracks leading from the house
of the prosecutrix, The defendant contends
that when the Sheriff was permitted to tes-
tify that he took one of the shoes the de-
fendant was wearing and fitted it into the
tracks leading from the home of the prose-
cutrix, and that the tracks corresponded
with the imprint made by the defendant’s
shoe, it was tanamount to requiring the de-
fendant to give testimony against himself.
Under our decisions the exception cannot be
sustained,
[2,3] It is well settled with us that the
similarity of footprints is admissible in evi-
dence as tending to identify the accused as
the one who perpetrated the crime. The
probative value of such evidence depends
upon the attendant circumstances. State v.
Walker, 226 N.C. 458, 38 S.E.2d 531; State
v. Mays, 225 N.C. 486, 35 S.E.2d 494; State
v. McLeod, 198 N.C. 649, 152 S.E. 895;
State v. Spencer, 176 N.C. 709, 97 S.E. 155;
State v. Lowry, 170 N.C. 730, 87 S.E. 62;
State v. Thompson, 161 N.C. 238, 76 S.E
249; State v. Hunter, 143 N.C. 607, 56 S.E.
547, 118 Am.St.Rep. 830; State v. Reitz, 83
N.C. 634; State y. Graham, 74 N.C. 646, 21
Am.Rep. 493, In the last cited case, this
Court said: “An officer who arrests a pris-
oner has a right to take any property which
he has about him, which is connected with
the crime charged, or which may be re-
quired as evidence.”
[4,5] The second exception is directed
to the prejudicial effect of the Sheriff’s tes-
timony to the effect that the defendant had
made inquiry of him as to whether or not
Chester Morris and the other escaped pris-
oners had been captured. This exception
cannot be sustained. The defendant in his
voluntary written statement, signed by him,
and admitted in evidence without objection,
stated that he, Chester Morris and other
Prisoners had escaped from the prison camp
on 3 November, 1946, and that he had
wrongfully tried to implicate Morris as “the
one who committed the crime on the white
woman.” Moreover declarations and ad-
missions of a defendant are competent
against him in a criminal action. State vy.
Abernethy, 220 N.C. 26, 17 S.E.2d 25.
The remaining exceptions are without
merit,
We find no error in the trial below.
No error.
ride def
whege de
a4ee
|
|
1]
“U-11- 1897 aed BOSE. regres lac eo
folgarc at pe oe a, 2, Wan nat Cb per Be Mardi
(0 ORS ithe es es = fi as. cme
Up?
Len fesasd THOU Bi ihe oe erodd (1 18) A
4
) T AT i ee p 5 a | , 1 ; 6 ‘eo
th ee ‘| liam blsecie hanged Wannant nav Wa: : QT AVWQ
SLE a Nit Wii Lam 9 MLOOK, De ngeda (APLYent On, —W - totem LOST. _
RAINEY, William
Rainey, a black many waS a tramp who, on the morning of May 10,
1878, was seen walking on a road near Warrenton, N. C,, MYXKEKEEXY
in the company of another black tramp, John Taylor, by several
farmers, That afternoon, one of the farmers found Taylor's body
lying by a fence on his property, guarded by Taylor's dog, TaylorXx
had been stabbed through the heart and his throat had been cut.. An
immediate search was started for Rainey and he wes taken into custody
that night. He never confessed to having killed his companion and
at his trial at the next term of Gircuit Court he was convicted on
circumstantial evidence and sentenced to die, He spurned all ree
to him, Ina spirit of bravado, he told one clergyman who called
on him that he would cut his throat before he would hang but that
would not be necessary as his life would be spared, On the morning
of Nov, 8, 1878, the day of his execution, William Jefferson who
Rainey learned that one was not forthcoming for him also he became
nervous but swore that he would die "game,!
began, he asked for a cigar to smoke on the way to the scaffold which
| tie! tp this request be-
bg jail yard and in addition
had been erected ee ia ae nos cuffed in order that he might et
his hands ee ene there being only twelve w
; : ing ten minute speech
Rainey made a rambling savencd with the
lation « if Satan
ing granted,
oping it. The execytion
Ss in the. enclosuré.
pene a soni ed having killed Taylor and which h
in w leni
f XXXYAKXHH this conso
ds: "I am rejoicing in KK#XKAK one of you who see me
i ieee he will also and poe pape wae abe rie tie tobe Pak,
ee } the sheriff "If you poe and the
dies" pel gloat pe : i? fuss ensued and finally the prisoner
I'll knock y °
Daj etting the best of
llows, Rainey was g
Sherif! cane te i tne aN: Be by others in the yard, KARAER
ion ne © djusted. Just be-
the encounter when dceuffed and the noose ad,
: bmission, handc ; ; : his neck was
pee thebean fell; he let out a piercing shriek. As
fore
not vbroken, he died of strangulation,
NATIONAL POLICE GAZETTE 11-23-1878 (7-2)
EXCITING GALLOWS SCENE.
Something New, Lively and Effective
.in the Way of Hanging Matinees--
} A&A Condemned Negro Murderer Gets
ap a Rough and Tamble Fight with
‘the Sheriff, on the Scaffold. is
Md
Waknenton, N. ©., November 8.—William
Rainey, a negro tramp, was hung here to-day for
the murder ofa brother tramp lest May. He
had denied his guilt all along antit yesterday,
when he made a partial confession. About a
week ago the condemned man was visited in his
cell by Rev, Morris Morton, colored, to whom he
declared that he was innocent, but that he was
not ready to die by a large majority: The ool-
-ored divioé prayed with him, urged him to ecek
the Lord, but he remained unmoved. He said
he had a presentiment or vision thathe was not
to be hung, and he didn’t mind going to the
penitentiary. In fact it would be a paradiee for
him. Yesterday Rainey ssid to an officer: ‘Of
course I plead innocent. A man isa d—d foo)
to tell on himeelf, Bat euppose I did. hill the
man ; I bet dey don’t hang me.” To the preacher
| Rainey remarked day before yesterday that
sooner than be hung he would ont bis throat.
This morning William Jeffries, who. was con-
fined in the jail with Rainey, and who was sen-
tenced to be bung to-day for rape, received a
reapite for thirty days. When the murderer
saw that no such document came for him, he
grew nervour, but he told the jailer that if he
bad tobe hung . py ieee > ¢
HE WOULD DIE GAME. err
He asked for a cigar that he might take a smoke
on the gallows. The cigar was brought to bim
just before the timefor the rope performance,
between twelve and ene O'clock. » He lighted it,
and esid that-it emoked well,” When the con-
‘demned man wae led forth he seemed atterly
indifferent. He was not-handoufied. He jamped
on-the ecaffold with the agility of s circus actor.
Rev. Morris Morton was present, but the saucy
cuss said he didn’s. want ‘any services at his
faneral.. “ Beier Neo
i one of you who see me die.”
| Cries of “Help! help!” were sent up.
l officers: Rainey strock the sheriff two severe
The soeffold was iu the jail yard, and only off-
cers, reporters and s preacher, twelve io all, |
were admitted. Rainey spoke ten or fifteen |
minutes, He said that he wae about to be mur-
dered, because he wae going to suffer death for s
crime that wae committed by snother. In con-
cluding his remarke he eaid : ‘t Now, gentlemen, |
‘Peo bout to kick de bucket against my will. 1}
may go to'de bottom kittle if darie euch s place;
‘put-t-am rejoicing in die coneolation—dat if
Satan gits me be will aleo and likewise git every
Tarning tothe eberiff, be said, “If you don’t
| tie the rope fight I'll knock you down.” Then
he and the eberiff’ got into « fuse, and finally |
cametoblows. The = 2 Bee
CU 9. BR OErEMENT WAS INTENSE...
‘by the
blows:in the face, and would bave got away with |
him but for tue sesistance of parties who stood
by. When they bad overcome the negro they
gave hima good beating, ind then borried ap
with the bandcofis and the noose. The drop fell
atone o'clock. Jnst before Rainey was swung
off he gave a terrible shriek, which could bave
been heard a half mile away. ‘His neck was not |
broken, and be died a bard death by strangula-
The story of the crime is as follows: William
Rainey and John Taylor, bie victim, were tramps,
walking together on the country road not far
trom thie place. They were seen on the morning
of May 10th by several farmers. Mr. John Hal-
lett saw them pase bie house about noon
together of that day, and in the afternoon of the
same day he found Taylor’e dead body lying {n
afence corner near his house. A yellow dog |
which followed Taylor was also found dead by |
b | the e(de of ite dead master. Constable Wiofire |
otified, and, sammoning a jory, he beld a’
dotoinee’s inquest, when it was ascertained that
the deceased came to his death by his throat
being cat and bie heart stabbed through with a
dirk. Rainey wae suspected, and that night was
arrested by the officers. He was tried at the
following term of the Criminal Court, and con-
victed oa circumetantial pvidence.
30 North Carolina (8 fredell
) 19
REEVES, Spencer $;, white, hanged Greensboro, N, Coy May 5, 1848,
"At the Fall Term of Guilford Superior Court held lest week, Judge Bailey pre-
siding, Spencer 5, Reeves was tried and convicted for the murder of his sis-
ter, Harriet A. Reeves. The evidence was circumstantial, but carried to the
mind inevitable conviction of the prisoner's cuilt. Mr. Solicitor Jones and
Mr. Waddell appeared for the
for the prisoner,"
WEAK EXXRXXERXEXANW WEHIKLY REGISTER AND NORTH CAROLINA GAZETTE, Raleigh, NC,
State, and Messrs, Morehead, Norwood, and Nash
November 3, 18:7 (1sh.)
RASH, Daniel, white, 27, hanged Surry County, N. C., October 29, 1826,
"At the Superior Court of Surry County, held last week, Judge RUFFIN, presiding,
Daniel Rash, a young man, aged 27, was sentenced to be hanged on the 29th instant,
for the murder of his own uncle, The circumstances attending the perpetration of
this unnatural act were of the most A#4MK ageravated character, and the cause which
led to the mrder, affords another lamentable instance of M& the horrid depravity
of human nature. The wife of the person thus prematurely deprived of existence,
although the moter of twelve children, eloped from her husband with his guilty
nephew, AMAXMEXHAXXK & it was proved on trial, that she M#H@ urged the nephew to
kill her husband, and in consideration of his services, was to give him some in-
ferior article of clothing!" REGISTER AND NORTH CAROLINA GAZETTE, Raleigh, NC,
Sept. 22, 1826 (1:1.)
Richmond, Virginia, February 10, 190) (7/h.)
, god et He | atk , | : ee
"Raleigh, Ne Ce, Jan. 30. = The mother and sister of Jabel Register, who is to be hung
at Whiteville, in Columbus,County, Fébruary 25th, arrived here this morning and will
-appeal to the Governor for executive clemency Monday, the date the Governor has set to
hear the counsel for’ Register on their ‘request that/the death sentence be commuted to
life imprisonment. Register was convicted of the killing of Jesse Soles and Jim Staley.
His father also was convicted of complicity inthe killing and is now serving a.life
ssentence in the.penitentiary." TIMES=DISPATCH, R,chmond, Vas, Jans 31, 190) (11/56)
*
\
46 SE 21 Cet TSA"
REGISTER, Jabel, hanged at Whiteville, Columbus Co. Ne du on 2=25=190li6
"(Special Dispatch to the Times-Dispatch.) Whiteville, Ny C., Feb... 25 (190). = without
the slightest sign of fear, Jabel Register, for the murder of Jesse Snow and Jim Stally,
was hanged here today at 12:30 o'clock, The strong nerve and absolute composure of: the
-condemned man were the most pronounced fleatures of the execution, There was no tremor
of voice, twitching of nerves or trembling of limb to show that he stood in the very
jaws of death, .Before the black cap.was placed over his head, 'Nearer, my God to Thee!
was sung at his request. Before going to the scaffold he said Cross Edmondson and A. Ce
Smith had a hand in the killing. He made no other statement with regard to the crime.
The execution was public and was witnessed by at least three thousand people = men,
women and children = who were atrracted to town as if to attend a circus, This is the
fourth hanging in the county within the past fifteen years.
"THE CRIME,
"The crime for which Jabel Register's life paid the penalty today was one of the blackest
and bloodiest crimes ever known in the criminal records of North Carolina, In one night
and within a few minutes, he committed three crimes - murder, burglary and arson = either
of which would have been sufficient for capital punishment. It was generally believed
that Jesse Sales (white) and Jim Stally (colored), illicit whiskey dealers, living ten
miles from Whiteville, Columbus County, had a considerable sum of money concealed in
their house. He Be Register planned the crime for which his son paid his life, On the
night of March 29, 1903, Jabel Register and Cross Edmondson, a friend, who was persuaded
to take a hand in the crime, went to the house and found Sales and Stally sitting before
the fire, Register and Edmondson crept up to a window, pointed their guns and fired at
the same time, Both men were killed in their seats, The home was searched, also the
dead men, but only a small amount of money was found, To cover up their tracks, Regis-
ter burned the house down on the bodies, The glare of the fire was seen by Sales's bro-
ther, who lived two miles away. It was he who discoverdd the foul deed the next daye
Register and Edmondson spent that night at a negro house, and the following day, they
separated, Suspicion pointed to He. Be Register, and he was arrestede. His son could
not be caught until five weeks after the crime was committed, When captured he was hid-=
ing in a false eeiling at his father's house, Cross Edmondson gave himself up. The
trial was held in June and lasted five days, Edmondson turned State's evidence, He was
sent to the penitentiary for five years. H. Be Register was found guilty of accessory
before the fact and was sentenced to life imprisonment, Jabel Register was sentenced
to death but an appeal was taken to the Supreme Court but it was in vain, The father an
son in the meantime were sent to the penitentiary for safekeeping as there was much
feeling against themen in Columbus County. Governor Aycock was petitioned for a re-
spite which he refused to grant. Then the younger Register, after being carried back to
Whiteville attempted to file out of jail with a file, which his father concealed in the
sole of the son's shoe, The jailer discovered the attempt just in time to pr event EX
HUKAEREK the murderer's escape. As a last resort, the condemned man, a few days agdy,
made a confession implicating a white man named A. Ce. Smith as an accomplice to the
crime, His counsel asked that the execution be stayed until April in order that Registe
might testify against Smith, The last attempt to ward off justice was also foiled, and
Governor Aycock allowed to law to follow its course, TAWMEIXR LHWA KARAM XHAKX BA XKRARA NAL AL
"BACKGROUND.
"Jabel Register was thirty-five years of age. He was below the ordinary intelligence,
His father raised him in crime and couldy deeds, The elder Register was at one time a
strong Republican leader. He was a United States Commissioner in this city, and later
was postmaster at Vineland, N.C. At one time he ran for the State Senate on the Re-
publican ticket. He is a man of wonderful shrewdness and clear scheming, and has had a
checkered career, Edmondson is about twenty-five years of age. Jabel Register has a
mother and two sisters living in the town where he was hanged," TIMES=DISPATCH, Rych-
mond, Virginia, February 26, 190) (l-6.)
"Raleigh, Ne Cey Febe 9e-Governor Aycock today, after hearing arguments against computa~
tion by Je Ae Bown, Je» Be Schulkin and others from Columbuscounty, acainstcommutation,
decided to not interfere with the death sentence of Jabel Register and to leg him be
hanged February 25th for the killing of Jessie Soles and Jim Staley last March, The
Governor devoted the entire morning to the hearing of the egatj e
commitation and to further brief pleas by Co Ae Mernar 2 deere hom Oh atkhhzepe isenees &
1 for commutation. The latter say they have made their last fight in Ler,
oe sland is nothing left but for their client to pay the penalty." Pata TB ARAHY
|
4
“4
i
;
¢
3
:
3
3
4
i
a
|
=
4
a
4
a
2
3
2
3
eI
x
4
- J
4
4
a
a
3
4
e |
4
4
:
am
20 46 SOUTHEASTERN REPORTER. (N.C.
should be held whenever the board of aldermen
might order the same, but, if the proposition
was then rejected, subsequent elections could
bo held only “after 30 days’ public notice.”
Priv. Laws 1895, p. 590, ¢. 352, revising the
charter of said city, provided that elections of
mayor and aldermen should be held under the
rules prescribed for elections to the General
Assembly. The general election law (Acts 1599,
p. GO8, ¢. 507) does not require any public no-
tice of elections to the General Assembly. Held,
that no publie notice of the first election on the
bond issue was required.
Appeal from Superior Court, Buncombe
County; E. B. Jones, Judge.
Submitted controversy by the city of Ashe-
ville against C. A. Webb & Co. Krom 4
judgment for defendant, plaintiff appeals.
Reversed.
Davidson, Bourne & Parker, for appellant.
MONTGOMERY, J. This is a controversy
submitted without action under section 567
of the Code upon an agreed statement of
facts. The defendants . contracted to buy
from the plaintiffs $40,000 of bonds issued
under the provisions of chapter 6, p. 14, of
the Private Laws of 1903, and afterwards
refused to receive and pay for the bonds on
the ground that they were illegal, for the rea-
son that the plaintiff had failed to give 30
days’ public notice of the election which had
been held upon the question as to whether
the bond issue should be “approved” or “not
approved.” No notice of the election on the
bond issue held on the 5th day of May, 1903,
the regular election day of ofticers for the
city of Asheville, and the time prescribed by
law therefor, was published for 30 days prior
to the said election. But a resolution was
passed by the board of aldermen, a majority
being present in regular session, in the fol-
lowing words: ‘Ordered by the unanimous
vote of the board of aldermen present that
an election be held at the time of the holding
of the next regular election of officers of the
city of Asheville in May, 1903, upon the ques-
tion of issuing $781,500 of refunding bonds in
accordance with terms, conditions, and pro-
visions of the act of the Legislature of North
Carolina duly adopted on January 24, 1903,
and entitled ‘An act to authorize the city of
Asheville to issue bonds to refund its debt.’ ’”
A majority of the qualified electors of the
city voted in approval of the bond issue, and
the result of the election was duly canvassed
by the board of canvassers of the city of
Asheville, and proclamation thereof made by
the chief of police of said city within the
time prescribed by law for the same.
Section 4 of the Acts of 1903 is in the fol-
lowing words: “Sec. 4. That said bonds shall
not be issued nor said taxes levied until au-
thorized by vote of a majority of the quall-
fiel voters of the said city ata public elec-
tion to be held in the same manner as elec-
{ions are or may hereafter be held in sald
city for the election of mayor and aldermen
thereof, and at such election those who favor
the issuing of said bonds and levying the
taxes herein provided fur shall vote ballots
with the word ‘Approved’ written or printed
thereon, and those opposed to issuing said
bonds sball vote ballots with the words ‘Not
Approved’ written or printed thereon; and if
any such election majority of the qualified
voters of said city shall vote ballots with the
word ‘Approved’ written or printed thereon,
then the said mayor and board of aldermen
shall, as may be required under the terms of
this act, issue said bonds, and after their
sale or exchange, or the sale or exchange of
any portion thereof, as hereinbefore provid-
ed, levy a tax sufficient to meet interest and
principal thereof when due, as hereinbefore
specified. The first election under this act
shall be held whenever the board of alder-
men may order same, not less than thirty
days after the date of said order, and if at
such election a majority of the qualified vot-
ers of said city shall not vote in favor of
issuing said bonds, then the board of alder-
men of said city shall at any time, and as
often thereafter as they deem best, not often-
er, however, than once in any one year, order
au election to be held under the rules and
regulations prescribed by law for the elec-
tion of mayor and aldermen of said city, and
after thirty days’ public notice thereof, and
at each of such elections, the ballots shall be
as hereinbefore directed; and if at any such
elections the majority of the qualified voters
of said city shall cast ballots in favor of the
issuing of said bonds as aforesaid, then the
said bonds shall be issued as may be re-
quired under the terms of this act by said
mayor and board of aldermen, to be applied
to the purpose and upon the terms and con-
ditions hereinbefore stated in this act.” The
plaintiff's contention is that the act author-
izing the issue of the bonds does not require
a publie notice of 30 days of the first election
be given under section 4 of the act, and
that the election, as held, was legally held,
and that the bonds are valid; while the de-
fendants contend that the failure to give
such notice was a fatal defect, and the bonds
are invalid and void. His honor held that
the act had not been complied with in re
spect to the notice of the election, and that
the refunding bonds were invalid and void,
and that the defendants were not required
to take and pay for the same. Judgment was
entered accordingly.
It will be seen upon the reading of the
above-quoted section of the act that public
notice of the holding of the first election is
not required. A public notice of 30 days of
subsequent elections on the same question in
case the first should be adverse to the bond
issue is made necessary by the act. The
order of the board of aldermen seems to have
been considered by the General Assembly as
a suflicient notice of the first election to be
held under the act. The plaintiff, without
submitting the question to a vote of its reg-
istered voters, had the right to refund its
bonded indebtedness; but, as it preferred to
submit the question to a vote of the peeple
under an act of the General Assembly passed
N.C.) STATE v. REGISTER. 71
r that purpose, the method prescribed by
he act myst be followed. Wadsworth v.
ity of Concord (at this term) 45 8. E. 948.
And the only question, as we have seen, sub-
initted to us in this case is whether the act
of assembly above referred to requires a 30-
days public notice of the first election held
snder section 4 of the act. Tis honor, as
we have said, thought it was. We do not
neur in that view. In section 4 of the act
of 1903 the election was required to he held
, the saime manner as elections were or
‘eat be hereafter held in that city for the
election of mayor and aldermen; and under
section 10, ¢. 352, p. 590, of the Private Laws
1s95—an act to amend, revise, and consol-
late the ecbarter of the city of Asheville—
“cctions for mayor and aldermen were re-
sired to be held under the same rules as
vere prescribed, or might be thereafter pre-
s-ribed, for the election of members of the
General Assembly (the powers and duties in
such rules and regulations conferred upon
and directed to be exercised by the sheriffs
being conferred upon the marshal of the city,
pte. Under the general election Jaw (chap
‘or SOT, p. G8, Acts 1805, we find no require
saents of any public notice of an election for
‘ueimbers of the General Assembly. It is re-
waired by section 14 of that act that the
county buard of elections shall make publica-
con of the names of the persons elected as
registrars of voters for townships. wards, or
precincts at the courthouse door immediately
after such appointment, and that is the only
sequirement of any public notice concerning
the election for members of the General As-
sembly that we find in the act. We are
therefore of the opinion that the act of 1908,
inder which the election was held, did not
require any public notice of the election. It
joes not appear from the facts agreed that
there was a publication at the eourthouse
‘or of the names of the persons who were
selected as registrars of voters, and it may
not be out of place to add here that, if notice
of the appointment of the registrars of voters
in the several wards of Asheville were not
published at the courthouse door immediate-
ly after they were appointed, in conformity
t» section 14, ¢. 507, p. 663, of the Acts of
tS00, and that omission is known to the de-
tendants, the bonds might be invalid in their
hands. Duke vy. Brown, 96 N. C. 127, 1 S.
FE. 873; Claybrook v. Commissioners, 117 N.
C 456, 23 8. FE. 360; Debnam y. Chitty, 131
NC. G57, 48 S. EL 3.
Reversed.
(ra N.C. 746)
STATE vy. REGISTER et al. ¢
Supreme Court of North Carolina. Dee. 18.
1908.)
MURDER — EVIDENCE — TESTIMONY OF | AC-
COMPLICE, — SUFFICTENCY ~ INSTRUCTIONS —
: ' AL VENIRE -DRAWING JURY—OB-
‘ S—-WAIVER
§ G15. provides that the Governor
ave power to appoint any judge to hold
fie . 2
‘ il terms of the superior court in any coun-
ty, and section 914 provides that when it shall
appear to the Governor, by certificate of a
judge or board of county commissioners, that
there is such an accumulation of eriminal or
civil actions as require a special term, he shall
order one, ete. Held, that where the commis-
sion fer a special term recited an aecumuilation
of criminal business as a reson therefor, the
court was not restricted to the trial of indict-
ments found before that term.
2, Code, § 17239, provides that the names of
yeniremen drawn from the box. who are free-
holders, shall constitute a special venire. Meld,
that a finding of the trial court as a fact that a
certain number of persons whose names were
drawn were not freeholders, and that the re-
mainder were, was binding on the appellate
court on appeal, and fatal to an exception to
quash the venire on the ground that in deter-
mining who were freeholders the court consult-
ed the tax lists of the county, oflicers of the
court who were not sworn, and other sources,
3. The defendant was not entitled to except
to the rejection of the veniremen.
4. Defendant could not complain. of the
court's action, he not having exhausted his per-
emptory challenges.
5. Though it is the better practice: to swear
oflicers and others giving opinion as to w hether
persons drawn are freeholders, the conduct of
the judge was not prejudicial to a defendant.
G. The trial court's finding as a fact, in a
criminal case, that certain jurors were indiffer-
ent, is not reviewable on appeal.
7. Sup. Ct. Rules 82. 34 G3 8. E. v). require
an appellant to set forth in his brief the sev-
eral grounds of exceptions and authorities re-
lied on. ete. Held that, where on appeal in a
criminal case certain exceptions are omitted
from the briefs of appellant. they will be taken
as abandoned.
&. Under Code, § 977, providing that a princi
pal felon and an accessory before the fact may
ho indicted and tried together, where a princi-
pal was tried on a special venire, his accessory
before the fact might be indicted and tried at
the same time.
9. An objection that the accessory could not
be tried on a special venire was of no avail on
appeal where the jury had been passed on. and
each juror accepted before objection made and
without exhausting peremptory challenges.
10. On a presecution for murder a witness tes-
tified that one of defendants told Lim and the
other defendant that a colored man stuying
with S. had money, and that he wanted them to
hold up the colored man and get the money.
Held. that it was proper to admit the evidence
of such witness before the examining magis-
trate to the effect that the first defendant had
during the same conyersation stated that a
brother of S. had some money, and that it
would he no trouble to get it, and that he could
tuke some men and go there and get it, beth
statements being part of the same conversation.
11. Inasmuch as an intent to commit robbery
was the purpose of the crime charged, the evi-
dence was competent as evidence of a different
offense of the same kind. ‘
12. The evidence was admissible as a declara-
tion of defendant in the nature of res cestir.
13. On a prosecution for murder, evidence of
a conversation between defendant and a cer-
tain person the week after the murder, and
which tended to show defendant's connection
with the erime, and which was corroborative
of the testimony of such other person, wis
properly admitted.
14. Qn a prosecution for murder there was tes
timony showing that one of defendants had pro-
cured the other to make a journey to the home
of deeeased and there murder him, and that
the former defendant had given the other cer
tain eanned goods when the slayer started. A
Witness testified that the defendant who did
the killing boueht some conned soods of him
the day before the killing. /eld that. for the
purpose of aiding the witness in fixing the date
ra
a
ee
Pap} -
‘eq Teqer SYMLSTodY
‘(snqum[o9) euTTOreD Yy4ON pesuey *
Pag mnie
——_ =
——e Srl ll
IN THE SUPREME COURT. [30
STATE v. REEVES.
had either a freehold or a term for years in the land of the pos-
session of which he had been deprived. In S..v. Nations, 23
N. C., 325, this Court held the same doctrine.
But it is insisted that, the justice (although he personally
assisted Anders in gaining possession, in the manner described
in the indictment) is not liable in law to be indicted, because
he acted under ignorance of the law or error in judgment. The
justice had power to inquire whether Flynn had made a forcible
entry upon the possession of Anders, and, if the evidence satis-
fied him that the fact was so, he might have bound him over to
court, to have been indicted for a forcible entry. This course
he did not pursue, but he forcibly dispossessed Flynn and put
Anders into possession. This was not an error in judgment;
it was an act the statutes gave the justice no power or authority
to do; his aetion in the matter was not voidable, but was abso-
lutely void and tortious. Without the finding by the jury of an
estate for years, at least, in Anders, the justice had jurisdiction
to bind the offender to answer personally for the offense of
forcible entry. But without such finding he had no jurisdiction
to oust Flynn of his possession and put Anders in. It is, there-
fore, not a case of error of judgment of a judicial officer, upon
a matter within his jurisdiction, but of usurpation of power,
beyond his jurisdiction. .
We think the judgment must be affirmed.
Per Curiam. Judgment affirmed.
Cited: Grissett v. Smith, 61 N. C., 165.
(19 )
STATE vy. SPENCER S. REEVES.
1. Where the record of the proceedings on an indictment for murder
uses the past tense instead of the present, this is not error.
2. Where a prisoner, indicted for murder, upon his arraignment pleads
not guilty, “and for his trial puts himself on his country,” this is
suflicient without his saying “on God and his country.”
Arvprat from the Superior Court of Law of Guirorp, at Fall
Term, 1847, Bailey, J., presiding. ~~
The case was this: After a conviction of murder the prisoner
moved in ‘arrest of judgment; and, after the motion was over-
ruled and sentence passed on him, he appealed. The motion
was foundéd on two reasons. The one, that in several instances
24
N.C.] DECEMBER TERM, 1847.
STATE v. REEVES.
the proceedings are stated in the record in the past instead of
the present tense. The other, that in that part of the record
which contains the arraignment and plea of the prisoner it is
stated, “and thereof, and for his trial, the said Spencer S. Reeves
puts himself upon the country,” whereas it should have been
that the prisoner said that he would “be tried by God and the
country.”
Attorney-General for the State.
Morehead for defendant.
Rurrin, C. J. There is no force in either of the reasons in
arrest. That respecting the tense was taken and overruled in
S. v. Martin, 24 N. C., 101. As to the other point, the record
is right in its present form. The inquiry, how the prisoner will
be tried, which tenders to him an election as to the mode, had
its origin, doubtless, in his right anciently to a trial by
Jury or by battle. But, though still made, in deference (20 )
to long usage, that inquiry and the answer to it are held,
at this day, an unmeaning ceremony, as we have but one method
of proceeding for capital felonies, which is by indictment and
trial by jury. Indeed, although the old forms are adhered to |
in England, in the oral proceedings in the arraignment of the
accused and taking his plea, yet the only note of them made at
the time is a memorandum by the clerk on the indictment—“po.
se”’—meaning that the prisoner put himself (ponit se) upon the
country. 1 Chit. C. L., 416. And in the best formularies of
engrossed records no notice is taken of any part of that ceremony
subsequent to the plea; but they merely state that, “being de-
manded concerning the premises, etc., how he will acquit himself
thereof, he saith that he is not guilty thereof,” and “thereof, for
good and evil, he puts himself wpon the country”; and then,
after an entry of the stmiliter (which, indeed, may be omitted
‘without error), there follows immediately the award of the
venire. 4 Bl. Com., 340, Appendix 3. Whether regard be had,
then, either to the substance or the forms of the proceeding, it
is only necessary that there should be a plea of not guilty, ten-
dering a proper issue to the country.
It must, therefore, be certified to the Superior Court that
there was no error in passing judgment of death on the prisoner
‘to the end that it may be carried into execution.
Per Curiam. Ordered to be certified accordingly.
Cited: S. v. Swepson, 81 N. C., 575.
t
Ot
"eTIQT-S-S £*0 *N fodoqsueedy pesuey feqtum ** g aeoueds §
a
Beste ert stot tr peer esiytreisa tira res tipeee
piaiedssbsds Sides aed edi el asedal Us ete i a a a sok
a]
pocorn apes pean tem mategep ne
23 46 SOUTHEASTERN REPORTER, (N.C.
it was proper to allow him to state that it was
on “Tuesday or Wednesday” that he heard of
the defendant who did the killing being at the
place where it was in evidence he. had spent
the night of the murder.
15. On a prosecution for murder it was not er-
ror to exclude an indictment against a witness
for the state which would merely have shown,
if adimitted, that he had been charged with the
murder, his whole testimony establishing his
participation therein.
16. On a prosecution for murder the court
charged that the jury must carefully consider
the testimony of a certain witness as he stood
before the jury as an accomplice, declined to
charge that it was dangerous to act exclusive-
ly on the testimony of an accomplice, and that
the jury should require confirmatory testimony,
or to charge that the unsupported testimony of
an accomplice must produce entire belief; but
the court did charge on reasonable doubt, tell-
ing the jury that, while they might convict on
the testimony of the accomplice, they should be
cautious in so doing. Held, that the court’s con-
duct was proper.
17. A conviction may be had on the unsupport-
ed testimony of an accomplice.
18. The appellate court cannot entertain a mo-
tion for new trial on the ground of newly dis-
covered testimony in a criminal case.
Appeal from Superior Court, Columbus
County; Moore, Judge.
J. B. Register and another were convict-
ed of murder in the first degree, and they ap-
peal. Affirmed.
John D. Bellamy, C. M. Bernard, and Don-
ald MecRacken, for appellants. Lewis &
Schulken and the Attorney General, for the
State,
CLARK, ©. J. The prisoner Jabel B. Reg-
ister is indicted and convicted of murder in
the first degree, and H. B. Register, his fa-
ther, is indicted in the same bill, and convict-
ed of being an accessory before the fact.
The evidence of the state, if believed, show-
ed that on Saturday afternoon, March 28,
1903, Jabel met Cross Edmundson and told
him his father (H. B. Register) wished to
see him; that together they went up to the
house of H. B. Register, who told them that
Jim Staley, a colored man staying with Jesse
Soles, had between $1,000 and $2,000, and
he wanted them to “hold up Jim Staley and
get his money, and kill him, if necessary”;
that H. B. Register furnished them with two
guns he had ready, and some canned goods
in a tow sack, and under H. B. Register’s di-
rection they left, about 10:30 at night, to go
down to commit the robbery; that the place
where Jim Staley resided being some miles
off, after traveling part of the way they lay
down in the woods and slept till next morn-
ing, when they resumed their journey, and
then spent the day near a stillhouse till
about dusk, when they started to Jesse
Soles’ house, where Jabel Register went up
to the window and fired both barrels through
the window into the house, killing Jesse Soles
and Jim Staley; he then entered the room,
remained a while, came out, and left; the
house was soon afterwards in a blaze, and
q 17. See Criminal Law, vol. 14, Cent. Dig. § 1124.
Cross Edmundson, when three or four miles
away on their return, asked Jabel what it
meant, and after some hesitation he replied
that “he reckoned his papa and Jesse Soles
were having a settlement.” The only direct
evidence is that of Cross Edmundson, the ac-
ecomplice, which is full, minute, and dramatic
in its details. There were witnesses, and
proof of sundry circumstances, which, if be-
lieved, strongly corroborated Edmundson at
sundry points in his narrative. ‘Lhe prison-
ers were tried at a special term, the commis-
sion reciting in the ordinary form that
there was such an accumulation of criminal
business as rendered a special term necessa-
ry. Code, § 914. The prisoners moved for a
continuance on the ground that, this bill
being found at that special term, it was not
part of the accumulation of criminal business
specified in the commission as a reason for
ordering such special term, and hence the
judge had no power to try them; and the pris-
oners excepted.
The first exception is to the refusal of this
motion, and is without merit. The power of
the Governor to order special terms is not
restricted to instances where there is accu-
mulation of business, nor when such fact is
recited as a reason in the commission is the
power of the judge restricted to the trial of
indictments found before that term. Code,
§ 913; State v. Lewis, 107 N. C. 967, 12 S. LE.
457, 18 S. E. 247, 11 L. R. A. 105; State v.
Turner, 119 N. C. 841, 25 S. E. 810.
The second exception is for the refusal of
the motion to quash the venire on these facts:
The judge ordered a special venire of 200,
and the names were drawn from the box
in open court as provided by section 1739 of
the Code, which provides that ‘‘the names so
drawn (being frecholders) shall constitute a
special venire.” The court undertook to as-
eertain whether those whose names were so
drawn were freeholders or not, “and ascer-
tained from the tax list of the county, the
officers of the court, and other sources, that
37 (of 237 names so drawn) were not free-
holders,’ and the names of these 37 were
not placed on the venire, leaving 200. The
case on appeal further says that the officers
and others from whom such information
was had were not sworn, but that it appear-
ed that the names of none of the 87 were on
the tax list of 1902 as owners of realty; that
there was no suggestion or evidence that any
one of them was a freeholder; that there
was no objection or exception to this mode of
proceeding, nor any request that the officers
or other persons giving information be sworn;
and the judge found at the time. as a fact,
that none of the 37 was a frecholder, and
that the 200 were freeholders. This finding
of fact is binding on us, and is fatal to the
exception. Besides, the prisoners made no
exception at the time, nor can they except
to the rejection of a juror, since their right
is “to reject, not to select,” and, moreover,
they are in no position to complain, for they
N26.) STATE y. REGISTER. o%
did not exhaust their peremptory challenges.
The practice of drawing the venire from the
box in open court was specially commended
in State v. Brogden, 111 N. C. 656, 16 8.
170. Other cases are State v. Moore, 1
CG. 570, 26 8S. E. G97; State v. Dixon, lh
C Sos, 42 SB. Ob; State ve. Utley, 1
C: at pee WS, tO. Su Ta State owe
Cody, 119 N.C. 90S, 26 S. i 252, 56 Am. St.
hep, Go, the court said, “It is not error in
the trial judge, when ordering a special
yenire, to direct the sheriff to summon only
frecholders,” and in the present case the
judge ascertained that fact himself, instead
of leaving it to the sheriff to determine.
‘There was, and could be, no prejudice to
the prisoners in what was done, but it will
always be better practice to swear the olti-
cers and others giving information on such
occasions.
The able counsel of the prisoners who en-
tered these two exceptions doubtless did so
cut of abundant caution, not relyiug upon
them himself, but being uncertain ‘how
they might strike the court.”
The third exception is to the indifference
of two jurors who the court, as the “trier
of the facts,” found as a fact were indiffer-
ent. Such finding is not reviewable. State
v. De Graff, 113 N. C. 6S8, 18 S. BE. 507;
State v. Potts, 100 N. C. 457, 6 S. E. 657;
state v. Greene, 95 N. ©. 611; State v. Col-
lins, 70 N. C. 241, 16 Am. Rep. 771.
The fourth, fifth, and sixth exceptions are
emitted from the brief of the prisoner's
eounsel, and therefore we take it they are
indoned (Rules 32 and 34, 181 N. C. 831,
E. v), but at any rate they are without
rit. he fourth exception was to the trial
of HT. B. Register by the special venire, on
the ground that a special venire can be drawn
enly in capital cases, but the Code (section
S77) provides that the principal felon and an
aecessory before the fact may be indicted
end tried together. Further, the jury had al-
reidy been passed upon, and each juror ac-
cepted, before the objection was made, and
without exhausting the peremptory chal-
tenges. It is a conclusive presumption in
1 case that the jury is unobjectionable.
ate v. Pritehett, 106 N. CG. 667, 11 S. E.
3 State v. Potts, supra; State v. Freeman,
10) N, C. 429, 5 S. EE. 921; State v. Jones,
90 N.C. 469, 1 S. E. 680. The fifth and sixth
»’xceptions were to the proper rejection of in-
competent hearsay evidence.
The seventh exception was to the evidence
of Cross Edmundson, in his statement before
the justice of the peace, that on the afore-
§aid March 28, 1908, H. B. Register had said
that Bill Soles, brother of Jesse Soles, and
he lived near him, had two or three thou-
nd dollars, and it would be no trouble to
¢ t
eetit; that he could take two or three men
'
setit. This was competent, for the tes-
so there in his absence and make his |
ny showed Chat it was part of the conver: |
Lin which H, B. Register was giving in- |
’
structions as to “holding up” and robbing
“tbe negro staying with Jesse Soles, who lad
between one and two thousand dollars.” Ed-
mundson had detailed the other part of the
conversation, and it was proper to admit this.
Lesides, the intent to commit robbery was in-
volved in this trial, and, this being so, evi-
dence of different offenses of the same kind
would be competent. State ve Weaver, Tod
N. C. 798, 10'S. E. 486; State v. Parish, 104
N. C6. 679, 10 S. E. 457; State ve Walton, 114
N.C. 785, 18 S. 845; MeLain, Crim, Liaw,
§$ 415, 416. This declaration of HL. b. Regi
ter was competent against him as a part of
the res gest at the lime he procured the wit-
ness to nid his son to commit murder for the
sake of the robbery.
‘The eighth exception is omitted from the
brief of prisoners’ counsel, and is clearly
without merit, being to the admission, against
H. B. Register only, of a conversation be-
tween him and Edmundson a week after the
murder. It strongly tended to show IL Ih.
Register’s connection with the crime, and
was corroborative of Edmundson’s testimony.
State v. Staton. 114 N. C. $15, 19 S. EL 96.
One Richardson testified that Jabel Register
bought some canned goods at his store be-
tween sunset and dark on Saturday, March
28, 1903, the day before the killing. T:d-
mundson had testified that he and Jabel had
similar canned goods, furnished by TL B.
Register on starting out that night. Tor the
purpose of aiding Richardson in fixing the
date, and for that purpose alone, he was pro}
erly allowed to state that it was on Tuesday
or Wednesday that he heard of Jabel Register
and Edmundson being at Nelson ‘Toon's,
where it was in evidence they had spent the
night of the murder. This was the ninth ex-
ception, but it is not urged as error in the
brief.
The tenth, eleventh. twelfth, and thirteenth
exceptions are essentially one, as stated in
the brief of prisoners, and are directed to the
admission, as evidence against H. B. Register
only, of a letter shown to be in his hand-
writing, tending te show an attempt to man-
ufacture or suggest statemenis that a wit-
ness should make in his interest. The four-
teenth exception is omitted from brief of pris-
oners, and, besides, requires no discussion;
which last is also true of the fifteenth excep-
tion, which is to the exclusion of the bill of
indictment against Cross Edinundson. — It
would have shown merely, if admitted and
had been competent. that he had been char-
ged by the grand jury with the murder, and
his whole testimony went directly to estab-
lish his participation therein, being prescut,
aiding and abetting. The court charged, as
requested: “The jury must earefully consid-
er the testimony of Cross Edmundson, and
give it such weight as it may be entitled to.
Me stands before the jury as an accomplice”
but declined to further charge that “it is
dangerous to act exclusively on the testimony
of an accemplice, aud the jury shall require
s-
iS
wa
KA,
.o
3
samen ty
LA eRe pe Re
Adee tia tA
BR oe Neha Rate th tr be Oat hav
dadededat aiitadeaedd is tate daddies Ki Me eee ad adeaese
24 46 SOUTHEASTERN REPORTER, (N.C.
confirmatory testimony before they convict,”
or to further charge that ‘the unsupported
testimony of an accomplice must produce en-
tire belief’ in the minds of the jury before
they can convict. This refusal is the basis of
the sixteenth, seventeenth, and twentieth,
twenty-first, twenty-fourth, and twenty-fifth
exceptions. In lieu thereof the court charged
fully and carefully on “reasonable doubt,”
and told the jury that, while they could con-
vict upon the uncorroborated testimony of an
accomplice, “they should be cautious in con-
victing” upon such evidence, and left to them,
under proper instructions, the evidence offer-
ed in corroboration, carefully calling to their
attention the effect of evidence offered only
as corroborative, and distinguishing its ef-
fect and application from substantive testi-
mony. It has been often held that there
may be a conviction upon the unsupported
testimony of an accomplice, and the charge
of the court that while the jury can convict
upon such testimony, yet they should be
“cautious” in so doing, is quoted from State
y. Miller, 97 N. C. 484, 2 S. E. 363, and is in
line with all our authorities. State v. Rowe,
98 N, C, 629, 4 S. B. 506; State v. Stroud, 95
N. C. 626; State v. Haney, 19 N. ©. 390; State
v. Wier, 12 N. C. 363. Here, indeed, there
was much testimony tending to corroborate
the testimony of Edmundson.
The eighteenth and nineteenth exceptions,
in regard to the modification of the prayer as
to the alibi attempted to be proved by Jabel
Register, cannot be sustained. The prayer,
as amended, is a correct statement of the
law. The twenty-second exception is a
“broadside” exception to the charge, and can-
not be considered. Besides, the charge is in
itself very full, careful, and impartial, and
the prisoners have no cause to complain.
There is no twenty-third exception in the
record or the briefs.
The prisoners also moved this court for a
new trial for newly discovered testimony,
but such motion can only be made in civil
actions. Our precedents are uniform that
this court has no jurisdiction to entertain
such motion in criminal actions. State v.
Jones, 69 N. C. 16; State v. Starnes, 94 N, C.
981; State v. Gooch, Id. 1006; State v. Star-
nes, 97 N. C. 423, 2 S. E. 447; State v. Rowe,
98 N. C. 630, 4 S. E. 506; State v. Edwards,
126 N. C. 1051, 35 S. FE. 540; State v. Coun-
cil, 129 N. C. 513, 39 S. E. 814.
After the fullest consideration, we find no
error.
(134 N. C. 116)
PUNCH vy. ELIZARETH CITY LUMBER
Co.
(Supreme Court of North Carolina. Dec. 18,
1903.)
CONTRACTS—CONSTRUCTION—SALES OF TIM-
BER—INTEREST OF PURCHASER--TERMINA-
TION — TIME OF EXERCISE — REASONABLE
TIMB—OPTIONS—NEGLECT TO USE—LEASES—
ESTATE OF LI BE,
1. A bare lease vests no estate in the lessee,
but gives him only a right of entry until he
has actually entered and accepted the grant,
when the estate is vested in him, and he be-
comes possessed of his term.
2. Under a contract conveying all the timber
cut on certain land, and allowing the grantee
five years within which to cut and remove the
same, whether viewed as a lease or as a con-
veyance of the timber, and whether the title
passes upon the execution of the conveyance,
or not until the timber is cut and removed, the
right of the grantee to cut and retnove the tim-
ber terminates with the five-year period men-
tioned in the instrument, and he then has no
further interest therein.
3. Where a contract conveying timber, and
giving the grantee five years within which to
cut and remove the same—“said term to com-
mence from the time said party of the second
part begins to manufacture said timber into
wood or lumber’’—specifies no particular time
for the commencement of such manufacture, the
law will imply a reasonable time.
4. Thirteen years is, as a matter of law, an
unreasonable time for cutting and removing
timber under a contract conveying such timber,
aud giving the grantee five years from the time
he should begin to manufacture the same in
which to cut it.
5. In trespass for cutting timber, the com-
plaint was drawn on the theory that the con-
tract for cutting the same had expired, and de-
fendant’s entry was therefore tortious. The
complaint also asked that plaintiff be declared
the owner of the timber cut and converted, and
that the contract be declared of no effect, be-
eause of its expiration. There was an allega-
tion that defendant’s assertion of a right to the
timber was a cloud on plaintiff's title, but there
Was no prayer of the complaint in accordance
therewith. The only issue submitted to the
jury related to plaintiff's damages and defend-
ant’s counterclaim, and the judgment of the
court was for the damages assessed, and nothing
else. Held. that the action was not an equitable
one, and did not impose on plaintiff the neces-
sity of offering to restore the consideration re-
ceived for the contract as a condition of relief.
6. Money paid for an option to cut timber dur-
ing a certain period cannot be recovered back
by the purchaser of the option or his assignee
merely because he fails to take advantage of
the option.
On petition for rehearing. Dismissed.
For former opinion, see 42 S. E. 1040, 181
N. 0. 880. See, also, Monds v. Lumber Co.,
42 8. B.:.334, 131 N. C.-20.
The contract discussed in the opinion was
construed and passed upon in Gay Manu-
facturing Co. v. Hobbs, 38 8. B. 26, 128 N. ©.
46, SS Am. St. Rep. 661. In setting out its
terms, the court there says: “The contract
was entered into on the 26th of April, 1887,
between Noah Hollowell and his wife and
the plaintiff; and it.was set forth therein
that for the consideration of $200—one half
to be paid on the execution and delivery, and
the other half to be paid in twelve months—
Hollowell and wife had sold and conveyed to
the plaintiff ‘all the timber then there, four-
teen inches across the stump when cut, on
fifty acres of Hollowell’s land.’ It was fur-
ther stipulated in the contract that Hollowell
was to pay all taxes, dues, assessments, ete.,
on the land and on the timber, and that there
was allowed to the plaintiff! ‘the full term of
five years within whieh to cut and remove
the timber hereby conveyed; said term to
4 & Sce Logs and Lorging. vol. 22. Cent Die & 14
N.C.) BUNCH v. ELIZABETH CITY LUMBER CO. 25
commence from the time said party of the
second part begins to manufacture said tim-
ber into lumber.”
Pruden & Pruden and Shepherd & Shep-
berd, for petitioner. W. M. Bond, for re
spondent.
WALKER, J. This is a petition to rehear
the above-entitled case, which was decided
by a per curiam order at August term, 1902,
and is reported in 131 N. C. 830, 42 8. E.
1010. This ease and Monds v. Luinber Co.,
131 N. CG. 20, 42 S. BE. 334, were argued at the
same time, with the understanding, as the
court then thought, that the former case
should abide the decision in the latter; but
counsel inform us now that the two cases
were argued together only for the sake of
convenience, as the facts and principles of
law involved in each of them are substan-
tially the same, and it was not intended that
the plaintiff in this case should be concluded
by the decision in the Monds Case, in which
no petition to rehear is filed. We accept this
statement of counsel as to the real under-
standing of the parties, and will proceed to
consider the errors alleged in the petition.
The contention is that the petition shoud
be beard as if an opinion had been filed in
the case substantially like the one in the
Monds Case, the necessary changes being
made to suit the facts wherein they may dif-
fer from those in the latter case; and, this
beiug done, the petitioner assigns as errors
that in the Monds Case, which is based up-
en the authority of Mfg. Co. v. Hobbs, 128 N.
Cc. 46, 88 S. E. 26, 83 Am. St. Rep. 661, and
Rumbough v. Mfg. Co., 129 N. C. 9, 39 S. E.
“<1, the court construed the contract between
the parties as a lease, and therefore void for
uncertainty as to the time of its beginning,
whereas, in fact and in law, there was a sale
entright of the timber; the contract being
exccatory as to the right to cut and remove
it, which continued until abandoned in some
war br the purchaser. It is also alleged
that the court erred in deciding that the ac-
tien wes not of an equitable nature, and in
its essence like a suit in equity to remove a
cloud from the plaintif{™s title, whereas the
court should have held that the plaintiff bad
come into a court of equity for relief, and
should be compelled to return the $200 paid
to him at the time the contract was made
by the Gay Manufacturing Company; the
iefendant having succeeded to all its rights
‘Dd equities by virtue of the deed of the
latter company to it.
It is a mistake to suppose that the court,
In Manufacturing Co. v. Hobbs, supra, decid-
ed that the contract must be construed as a
ise of the timber trees, or »s a term for
‘rs. The court merely stated that it so
ropartook of the nature of a lease as to
Pace the application of the same rule of
in determining its validity as weuld ap-
the case of leases or ferms for years,
that, as im such eases there must. be |
a certain beginning and a certain end, the
contract is void, as no definite time is fixed
for the beginning of the term. 2 Blk. 143,
318. A bare lease does not vest an estate
in the lessee, but only gives him a right of
entry, which is called his interest in the term
(interesse termini); but when he has actually
entered, and thereby accepted the grant, the
estate is then, and not before, vested in him,
and he is possessed, not properly of the land,
but of the term for years; possession or
seisin of the Innd remaining still in him who
has the freehold. 2 Blk. 144. While some
of the eases in this and other states liken
a contract of the kind we are construing to
a lease, it may be true that it should not
be technically so construed, but that it should
be regarded as a conveyance of the timber,
or an interest or estate in the timber, upon
condition that, if it is not cut and removed
within a given time, the interest or estate so
conveyed shall revest in or revert to the
grantor. While we are inclined to adopt this
as the better interpretation, and the one more
perhaps in consonance with the intention of
the parties, as disclosed by the language em-
ployed by them, yet we think that, however
the contract may be considered with refer-
ence to the interest or estate of the defend-
ant’s assignor, the result in this case must
be the same; and even if the title in the
trees vested the very moment the contract
was delivered, and by virtue of it, as an
executed contract of sale, that title has been
lost by inaction or failure to comply with
the condition upon which it was conveyed,
or, more exactly speaking, by failure to cut
the timber within the time limited by the
contract. There appears to be some diversi
ty of opinion to be found in the cases as to
when the title to the timber passes--whether
immediately upon the execution of the instru-
ment of conveyance, or not until the timber
is cut and removed—in a case like this, where
the time limit extends not only to the cut-
ting, but to the removal. This distinction, if
well taken, can make no practical difference
in the construction of the contract under con-
sideration, as we hold that the time for cut-
ting and removing the timber, as fixed by the
contract, had expired before this suit was
brought; and it is therefore immaterial
whether we decide that the title never pass-
ed out of the plaintiff, as the timber was not
eut within the time, or reverted to him at
the end of the allotted time by reason of
the failure to comply with said condition.
In neither view of the matter can the de-
fendant succeed tn this action.
We are not inadvertent to the fact that
some courts, Whose decisions are entitled to
the highest respect, have held that the title
passes to vendee, if we may so eall him, and
remains in him notwithstanding the expira-
tion of the time fixed for the cutting and
removal of the timber, so that, if he enters
upon the land to cut the timber, his vendor
may sve him in an aetion in the nature of
848 NLC. 53 SOUTH EASTERN
owner of the land in dispute and that the
defendants’ claim constitutes a cloud upon
his title. Judgment was entered to the
effect that the plaintiff is the owner of the
land in dispute and that the claim of title
thereto asserted by the defendants or:any
of them, is invalid and void, and the same
is removed from the described land as a
cloud upen the title of the plaintiff.
Defendants appeal and assign error.
Spence & Boyette, Carthage, for plaic-
tiff.
W. A. Leland McKeithen, Pinehurst, and
W. Clement Barrett, Carthage, for de-
fendants.
DENNY, Justice.
The defendants except and assign as
error the refusal of the Court to charge
the jury in substance as follows: That a
particular. description in a deed by metes
- and bounds which is unambiguous, will
control over a reference to lots when there
is a discrepancy or ambiguity between the
two descriptions.
[1] The intent of a grantor in a deed,
like that of a testator in a will, must be
gathered from its four corners, and it is
the duty of the Court to decide as a mat-
ter of law, what the boundaries are in a
deed, and for the jury to determine where
they are actually located. Gudger v.
White, 141 N.C. 507, 54 S:E. 386;. Von
Herff v. Richardson, 192 N.C. 595, 135 S.E.
533;> Greer v. Hayes, 216 N.C. 396, 5 S.E.
2d 169; 26 C.J.S:, Deeds, § 100, p. 357.
[2] Ordinarily if a description by metes
and bounds does not embrace the locus in
quo, but such description is followed by
the statement “including” lot or lots thus
and so, when such lot or lots in their en-
tirety are not embraced in the descrip-
tion, such reference should not be allowed
to control and thereby enlarge the boun-
daries unless it is clear the grantor intend-
ed to convey the additional land not em-
braced in the description by metes and
bounds. Hudson v. Underwood, 229 N.C.
273, 49 'S.E.2d 508; Bailey v. Hayman, 218
N.C. 175, 10 S.E.2d 667; Von Herff v.
Richardson, supra; Ferguson v, Champion
REPORTER, 2d SERIES
Fibfe<€o.;; 182 “NIG, "731; 1108S tae “220°
Williams v. Bailey, 178 N.C. 630, 101 S.E.
105; Potter v. Bonner, 174 N.C. 20, 93
S.E. 370; John L. Roper Lumber Co. v.
McGowan, 168 N:C. 86, 87, 83 S.E. 8;
Midgett v. Twiford, 120 N.C. 4, 26 S.E.
626; Cox v. McGowan, 116 N.C. 131, 21
S.E. 108; Carter v. White, 101: N.C. 30,
7 S.E. 473.
[3] In Cox v. McGowan, supra, Avery,
J., said [116 N.C. 131, 21 S.E. 110]: “The
parties are presumed to have intended to
be governed by the description which they
make specific, where it is in conflict with
another.”
It is only when the specific description
is ambiguous, or insufficient, or there.is a
reference to a fuller or more accurate
description, that’ the general description is
allowed to control.’ Lewis y. Furr, 228
N.C. 89, 44 S.E.2d 604; Crews v. Crews,
210 N.C. 217, 186 SE. 156; Quelch v.
Futch, 172 N.C.. 316,90 S.E. ‘259; , Ritter
v. Barrett, 20 N.C. 266}: Campbell v.. Mc-
Arthur, 9 N.C. 33,..11--Am.Dec. :738, 18
C.J. 284, 26 C.J.S., Deeds, § 100.
We think an examination of the origi-
nal deeds in plaintiff's chain of? title re-
veals that the grantors therein only in-
tended to convey the Barrett Hotel prop-
erty. The deed from William McCormick
assignee of the estate of Samuel Barrett to
L, Grimm expressly so states and contains
no description by metes and bounds, neither
does it refer to any lot number; and in
the deed from Richardson to Grimm here-
inabove set forth, it will be noted that the
grantor describes the property as adjoin-
ing the lands of J: M. Monger and the
Courthouse square, in the Town of Carth-
age, and known as the Barrett Hotel lot,
and bounded as follows. Then follows a
description by metes and bounds, which
description according to the plaintiff's evi-
dence includes no part of the land in con-
troversy. Then after the reference to
Lots 37 and 38, this significant statement
is added: “The foregoing description in-
cludes the Barrett Hotel, outhouses, gar-
den, yards and all appurtenarices:and_be-
longings thereto, the same being inthe
Town of Carthage.”
STATE
v. REID N.C. 849
Cite as 53 S.1..2d 849
Moreover, it appears from the plaintiff's
evidence that J. M. Monger- lived in a
residence located on that part of Lot No.
37, shown on Exhibit A, as “LeRoy Lee
property (Page Building).” It further ap-
pears in the quitclaim deed executed by A.
H. McNeill, a predecessor in title to plain-
tiff, to D. A. McDonald, that J. M. Mon-
ger had allotted to him as a homestead all
of Lots 43 and 44 and a portion of Lots
37 and 38.
It is clear that A. H. McNeill’s record
title must have been superior to all of
Lots 37 and 38 to the record title of J. M.
Monger,- from whom the defendants claim
title, if the plaintiff’s record title is su-
perior to that of the defendants. If A. H.
‘McNeill claimed title to all of Lots 37 and
38 at that time, it is difficult to under-
stand why he released all of Lots 43 and
44 and a portion of Lots 37 and 38 to D. A.
McDonald, from liens he held against
McDonald’s predecessor in title, J. M.
Monger. Certainly if A. H. McNeill
owned all of Lots 37 and 38, as contended
by the plaintiff, his liens against Monger
would not have been a lien against his own
property: Furthermore, if all of these lots
belonged to McNeill, or his predecessor in
title, why was a portion of them allotted
to J. M. Monger as a part of. his home-
stead? 5
[4] We think on this record, the de-
fendants’ have shown a superior record
title to the property in dispute.
([5] The defendants also except to the
refusal of his Honor to charge the jury
that since they hold the superior record
title to the land in dispute, the plaintiff
cannot recover unless he-shows by the
greater weight of the evidence that he has
obtained title thereto by adverse posses-
sion or that his predecessors in title have
done so, The exception is well taken, and
must be upheld.
[6] Whether the plaintiff and those un-
der whom he claims have obtained title to
the land in dispute by the adverse posses-
sion thereof for twenty years, or by ad-
verse possession under color of title for
seven years, is a question about which we
express no opinion. That is a question
for the jury on appropriate issues and
63 S.1.2d—54
under proper instructions. But for the
reasons herein pointed out, the defendants
are entitled to a new trial, and it is so
ordered.
New trial.
w
© E KEY NUMBER SYSTEM
T
230 N.C. 561
STATE v. REID.
No. 76.
Supreme Court of North Carolina.
June 16, 1949.
{. Criminal law €=1158(3)
Where trial court’s findings of fact
that there had been no improper discrim-
ination, in support of his overruling Negro
defendant’s challenge to entire array of
petit jurors on ground that couiity officers
had systematically, over a long period of
years, excluded Negroes from juries sole-
ly on account of their race or color, were
supported by evidence, such findings were
conclusive on appeal, since exception to
failure to sustain defendant's challenge
presented no reviewable question of law.
G.S. §§ 9-1 to.9-3, 9-9, 9-14.
2. Criminal law C>1178
An exception brought forward in
brief, to which no argument was made or
authorities cited in support thereof, was
abandoned. Rules of Practice in Supreme
Court, rule 28.
3. Burglary €=45
Evidence was sufficient for jury under
allegations in indictment charging defend-
ant with burglarious entry with felonious
intent to ravish and carnally know prose-
cutrix, forcibly and against her will, as
against defendant’s contention that evi-
dence tended to show only an intent to
commit a crime against nature. G.S. 14-
177,
4. Burglary C>32
Evidence as to defendant's conduct
after breaking and ‘entering may be con-
sidered by jury in ascertaining defendant's
6
&
Ay
5
My
©
&
i
|
=
4
=
He
B
b
%
(35) (Cont.) encouragement he has received since his commencing business in this
town, and begs leave to inform them that he has removed his shop next door to Mr.
John EATON's... August 29, 1792.
Wednesday, September 5, 1792. [No. 8.
(36) Philadelphia, August 13. «- August 18.-On Monday, the 6th day of this inst.
the Supreme Court of the United States met.. The Attorney-General of the United
States gave notice, that he should move the Court on the Wednesday following for a
mandamus to the Circuit-Court of Pennsylvania, commanding them to proceed on the
petition of William HOGBURNE, a claimant of a pension, in which they had refused to
proceed, from a supposed nullity of the pension law. «--
(37) August 22.-From the various. circumstances which are related as attendant on
the death of Elizabeth REEVES, we believe that the following particulars respecting
that atrocious murder may be relied on as facts. Miss REEVES had on Wednesday
evening been on a short visit to a relation in COOMBS" Alley, which she left about
eight o'clock, to go home, alone, and without any thing uncommon having occurred;
from that time she was not seen or heard of until early on Thursday morning, when
her body was discovered lying on the mud with the face down, in the dock near
WARDEN's wharf. On examining, it was found that the most brutal violence had been
committed on her person and a large wound on the left side of her mouth, and bruises
on other parts, shewed that she must have suffered much from the most shameful abuse;
several of her teeth were loose.-It appeared, from marks of her feet in the mud,
that she had moved several steps from the place where she was first thrown, where
her comb and a ribband were found. Nothing has yet appeared to detect the villain-
rators of this infernal deed.. Miss REEVES was about 17 years of age,
ous perpet
and apprenticed to a mantua-maker; and when it 4s considered that she bore a very
good character, and was remarkable for her amiable deportment and pleasing manners,
the loss to society must be the greater... Her remains were decently interred on
Friday afternoon, in St. Peter's Church-yard, attended by a great concourse of
people of both sexes.--
Wednesday, September 12, 1792. [No. 9.
(38) Halifax, September 12. A Proclamation was issued by the Governor of Pennsyl-
vania, on the 22d ult. offering a reward of three hundred dollars to any person
who shall discover and apprehend the perpetrators of the murder of Miss Elizabeth
REEVES. The Governor of the state of New-York has issued a Proclamation, dated
August 16, offering five hundred reward for apprehending Jacob VALENTINE, lately of
Herkemer county, labourer, who has absconded, and is charged with having killed an
Indian chief of the Onandago nation, on the 27th of July last.
(39) Fayetteville, August 28. On Saturday last a court of oyer and terminer was
opened in this town by their Honours Judges WILLIAMS and MACAY, for the trial of the
following, viz. Simon HADLEY, William COOK (late of Georgia) John RICH, (blank
LASSITER, William MATHEWS, and Kintchen KITCHENS. The grand jury have not yet had
all their cases under consideration. ---
Wednesday, September 19, 1792. [No. 10.
(40) Philadelphia, Sept. 1-5. .. The completion of the third century since the
discovery of America, by Christopher COLUMBUS, will be celebrated by the Historical
Society, on Tuesday the 22?d day of October next, at Boston; when a discourse..will
be delivered by the Rev. Jeremy BELKNAP, D. D. at the Meeting house in Brattle-street,
he being elected by the Society for that purpose.
19 September 1792
(10. Pe
eat eee Me tn ae .
fi
SE ETH
Seasteapae ts
LOE aes
1 a pad
vA
ig
x
%
a
+
te
. Y
i
3
oa
bd
de
.
Ld
&.
A
Be
=
|
ii
ee
fe
H
49
3s
aw ‘
~~
um,
ca aa
ee eo
eee
a
'
fi
id
850 N.C.
intent at time of the breaking and enter-
ing.
5. Burglary C2
‘Where there is a breaking and enter-
ing into dwelling house of another in the
nighttime with intent to commit felony
therein, the crime of burglary is consum-
mated, even though accused by reason of
unexpected resistance or outcry of his in-
tended victim may abandon his intent to
commit the felony.
6. Criminal law €=752'
A motion for judgment as of nonsuit
in criminal prosecution is properly denied
if there is any competent evidence to sup-
port allegations of indictment.
7. Criminal law 752!
On motion for judgment as of non-
suit, all evidence tending to sustain allega-
tions in indictment upon which defendant
is being tried will be considered in light
most favorable to’ state, and state is en-
titled to every reasonable inference to be
drawn therefrom.
8. Burglary €=41(1)
_ Evidence supported conviction of bur-
glary in first degree based on bill of in-
dictment charging defendant with bur-
glarious entry with felonious intent to
ravish and carnally known prosecutrix,
forcibly and against her will.
———
Appeal from Superior Court, Wilson
County; W. H. S. Burgwyn, Special
Judge. ;
Allen T. Reid was convicted of burglary
in the first degree, and he appeals.
No error.
Criminal prosecution tried upon indict-
ment charging defendant with the crime
of burglary in the first degree.
When the case was called for trial, and
before the trial jury was chosen, sworn or
impaneled, counsel for the defendant filed a
motion challenging the array of petit jurors,
upon the ground of disproportionate repre-
sentation of Negroes on petit juries in Wil-
son County, and long, continuous and sys-
tematic exclusion of Negroes from petit
juries solely and wholly on account of their
53 SOUTH EASTERN REPORTER, 2d SERIES
race and color, contrary to the laws of the
State of North Carolina and.the United
States.
The defendant offered evidence in an ef-
fort to sustain his challenge to the array of
petit jurors. Upon the evidence produced
by counsel for defendant, the Court found
as a fact that the officers whose duty it was
to prepare the jury list and draw the panels
of veniremen to be summoned by the Sheriff
of Wilson County “from which petit jurors
were drawn, have not selected and sum-
moned jurors for the December 6 Term,
1948, in violation of G.S. of 1943 Chapter
9, Sections 1, 2, 3 and/or 9, and the Consti-
tution and Laws of the United States, with
the unlawful and avowed purpose of dis-
criminating against persons of the Negro
race; and that there is no evidence before
the Court to show that the said officers have
been systematically and) continuously, over
a long period of years, excluding Negroes
from said juries in said county solely on
account of their race or color; to the con-
trary, it has been effectively shown that
there are the names of Negroes in the jury
boxes of Wilson County, and that one mem-
ber of that race was drawn and served as
a member of the Grand Jury which returned
the Bill of Indictment in this case, and that
four or five members of the colored race
were drawn for the special venire and sum-
moned for the purpose of the trial of this
case.” Whereupon the Court overruled the
motion, and the defendant excepted. Ex-
ception No. 15.
It is disclosed by the evidence that Mr.
and Mrs. James Barnes, at the time the al-
leged crime was committed, were living in
a ground floor apartment, at 204 Park Ave-
nue, in the City of Wilson.
The night of the alleged crime Mr.
Barnes was in Washington, D. C., and Mrs.
Barnes retired in the early morning of 2
September, 1948; no other member of the
family or guests being in the apartment at
the time. About 2:30 a. m., she was awak-
ened by someone placing a hand on her
shoulder. She was on an antique bed about
three and a half fect high. The person who
touched her was on the far side of the bed
and when she realized that the hand was on
her shoulder, she immediately got off the
STATE vy, REID N.C. 851
Cite as 53 S,.1.2d 849 :
bed away from the person. The person
grabbed her wrists and ordered her to be
quict and not to scream. She asked the per-
son who he was, and he replied, “Never
mind who I am.” She asked him how he
entered the room and he said, “That’s all
right;. I got in here.” The prosecuting
witness managed to free her right wrist af-
ter several minutes. The person then or-
dered her to get back on the bed. She asked
him what he wanted. He stated that he
wanted to commit an act, which would have
been, if accomplished, a crime against na-
ture. He also said to her several times:
“If you scream, you know what I have.”
She told him to leave and he told her if she
would just get back on the bed it wouldn’t
take long. She would not get back on the
bed and he began twisting her left wrist.
She testified that she realized something had
to be done, and she yelled for Mrs. Mayo,
the lady in whose home the apartment is lo-
cated. The person then jumped out the
bedroom window, head first. Mrs. Barnes
further testified she did not know who the
party was, except her assailant was a male
person; that when she went to bed the win-
dow in her bedroom was approximately
two-thirds raised; that there was a screen
in the window which hooked into the side
of the window and it was in good condition
when she retired.
Mrs. Sarah Mayo testified that when she
heard Mrs. Barnes scream “Sarah,” she im-
mediately got out-of bed, called her son and
went into Mrs. Barnes’ apartment, and
found her at the telephone. She noticed
that the screen was cut but did not see any-
one leave the house.
A witness who lived next door to Mrs.
Mayo testified she was reading in bed and
heard Mrs. Barnes scream about 2:30
a.m.; that she looked but did not see any-
one but heard “footsteps running.” She
then heard a car start.
A member of the Police Department of
the City of Wilson, in response to a call,
went to the Barnes apartment. He ex-
amined the window and found that the
screen outside the window had been cut all
the way from the top to the bottom with
some sharp instrument. He found two
razor blades just underneath the window on
the outside. The razor blades were “Trect”
blades. -He also found a paper wrapping
that goes on razor blades. Shortly there-
after police officers found a wrecked Chev-
rolet car on the railroad track of the Nor-
folk & Southern Railroad, four blocks from
the Barnes apartment. In the car the of-
ficers found a wrapping from a “Treet”
razor blade, which was on the floorboard of
the front seat. The wrecked car belonged
to the father of the defendant. The father
testified the defendant took the car on the
night of September Ist, and said he wanted
to go to a show; that he did not see the car
any more until it was pulled in after the
wreck. The-husband of the prosecuting
witness testified he had never used ‘“Treet”’
blades, and had no such blades in his home.
Between 8:30 and 8:45 on the morning of
2 September, 1948, A. J. Hayes, Jr., the
identification officer of the Wilson Police
Department, who was found by the Court
to be a fingerprint expert, went to the
Barnes apartment and made an investiga-
tion for fingerprints. He testified that on
the inside of the window through which the
entrance to the Barnes apartment had been
made, he found a fingerprint on the lower
right-hand corner of the window sill and
bottom section of the window; and he
photographed the fingerprint. At the trial
this witness, and two other witnesses who
are with the State Bureau of Investigation
and were qualified as fingerprint experts,
compared the fingerprint found in the
Barnes apartment with fingerprints of the
defendant made after his arrest in Norfolk,
Va., on 25 October, 1948, and each one of
them testified that the fingerprint found on
the window sill on the inside of the Barnes
apartment was identical with the fingerprint
of the right index finger of the defendant.
The defendant offered no evidence.
From a verdict of guilty of burglary and
sentence of death by asphyxiation, the de-
fendant appeals and assigns error,
Attorney General Harry M. McMullan
and Assistant Attorneys General Ralph
M. Moody and T. W. Bruton, for the State.
Herman L. Taylor, Raleigh, and C. J.
Gates, Durham, for defendant,
waa hag Saya
byderkea
4 host cheb Fe.
Steaphan
Gadbete ice $9 gM nda?
852 N.C.
DENNY, Justice.
[1] The exception to the failure of the
Court to sustain defendant’s challenge to
the emtire array of petit jurors is not
brought forward, as required by the Rules
of this Court, Rule 28. However, the de-
fendant discusses the exception at some
length in his brief. Consequently, we have
considered the exception and find it with-
out merit.
His Honor’s findings of fact are support-
ed by the evidence and are conclusive on
appeal, since the exception presents no re-
viewable question of law. G.S. § 9-14;
State v. Davenport, 227 N.C. 475, 42 S.E.2d
686; State v. Lord, 225 N.C. 354, 34 S.E.2d
205; State v. DeGraffenreid, 224 N.C. 517,
31 S.E.2d 523; State v. Wall, 211 N.C. 487,
191 S.E. 232; State v. Cooper, 205 N.C.
657, 172 S.E. 199; State v. Daniels, 134 N.C,
641, 46 S.E. 743. The question raised has
been considered in a number of recent cases
before this Court and no useful purpose
would be served by a further discussion of
the subject here. See State v. Speller, 230
N.C. 345, 53 S.E.2d 294; State v. Speller,
229 N.C. 67, 47 S.E.2d 537; State v. Brun-
son, 229 N.C. 37, 47 S.E.2d 478; State v.
Koritz, 227 N.C. 552, 43 S.E.2d 77, cer-
tiorari denied 332 U.S. 768, 68 S.Ct. 80,
92 L.Ed. 354, and a rehearing denied 332
U.S. 812, 68 S.Ct. 106, 92 L.Ed. 390; and
the cases cited.
-[2] Exception No. 16 is brought forward
in the brief, but no argument is made or au-
thority cited in support thereof, hence it
will be considered as abandoned. Rules of
Practice in the Supreme Court, Rule 28, 221
N.C, 546.
[3] The defendant moved for judgment
as of nonsuit at the close of the State’s evi-
dence, on the ground that while the bill of
indictment charges the defendant with burg-
larious entry with the felonious intent to
ravish and carnally know Mrs, James
Barnes,-forcibly and against her will, the
evidence he contends, tends to show only an
intent to commit a crime against nature,
condemned by G.S. § 14-177.
The conduct of the defendant in. breaking
and entering the bedroom of the prosecutrix
in the night-time, and under the circum-
53 SOUTH EASTERN REPORTER, 2d SERIES
stances disclosed by the evidence, indicates
the extent to which he was willing to go to
accomplish his purpose. He might have
preferred and intended to commit a crime
against nature, or his statement in that re-
spect might not have been indicative of his
actual intent. We think the evidence was
sufficient to carry the case to the jury under
the allegations contained in the bill of in-
dictment, and it was for the jury to de-
termine, under all the circumstances, wheth-
er or not the defendant had the ulterior
criminal intent at the time of the breaking
and entering, to commit the felony charged
in the bill of indictment. State v. Allen,
186 N.C. 302, 119 S.E. 504; State v. Boon,
35 N.C. 244, 57 Am.Dec. 555.
The trial judge charged the jury on the
defendant’s contention in this respect, and
instructed the jury to acquit the defendant
if it found as'a fact that the defendant en-
tered the home of the prosecuting witness
with the intent to commit a crime against
nature and not with the intent to commit
rape, as alleged by the State in the bill of
indictment.
In State v. Boon, supra, Pearson, J., in
speaking for the Court, said: “The evidence
of the intent charged is certainly very
slight, but we cannot say there is no evi-
dence tending to prove it. The fact of the
breaking and entering was strong evidence
of some bad intent; going to the bed and
touching the foot of one of the young
ladies tended to indfeate that the intent was
to gratify lust. * * * And the hasty
retreat without any attempt at explanation,
as soon as the lady screamed, was some eVi-
dence that the purpose of the prisoner, at:
the time he entered, was to gratify his lust
by force. It was, therefore, no error to
submit the question to the.jury. Whether
the evidence was sufficient to justify a ver-
dict of guilty is a question about which the
Court is not at liberty to express an
opinion.” ;
In the instant case, it is clear the defend-
ant wanted the prosecutrix to know he
would resort to. other means if she
screamed. Whether he had the intent to
commit the crime ,of rape, as charged,
or the intent to commit a crime against na-
ture, at the time of breaking and entering,
STATE v, FOWLER N.C. 853
Cite as 53 S.E.2d 853
was a question of fact to be determined by
the jury.
[4,5] Evidence as to the conduct of the
defendant after breaking and entering may
be considered by the jury in ascertaining
the intent of the accused at the time of the
breaking and entering. But where there is
a breaking and entering into a dwelling
house of another, in the night-time, with the
intent to commit a felony therein, the crime
of burglary is consummated, even though
the accused person by reason of unexpected
resistance or the outcry of his intended
victim, may abandon his intent to commit
the felony. State v. Hooper, 227 N.C. 633,
44 S.E.2d 42; State v. Allen, supra; State
v. McDaniel, 60 N.C. 245; State v. Boon,
supra.
Exceptions 65 and 67 are directed to the
refusal of the Court below to grant the de-
fendant’s motion for judgment as of non-
suit, challenging the sufficiency of the evi-
dence to warrant its submission to the jury.
The appellant: is relying largely on the
case of State v. Minton, 228 N.C. 518, 46
S.E.2d 296, where the defendant’s finger-
print was found upon broken glass from
the front door of a store that had been un-
lawfully entered. That case is distinguish-
able from the present one. The defendant
in the Minton case was lawfully in the store
in the afternoon of the day on which the
crime was committed, and he may have
made the fingerprint at that time.
[6-8] We must keep in mind that a mo-
tion for judgment as of nonsuit in a crimi-
nal prosecution is properly denied if there
is any compétent evidence to support the
allegations of a bill of indictment; and all
the evidence tending to sustain the allega-
tions in the bill of indictment upon which a
defendant is being tried, will be considered
in a light most favorable to the State, and
the State is entitled to every reasonable in-
ference to be drawn therefrom. State v.
Braxton, 230 N.C.~ 312, 52 S.E.2d 895;
State v. Gentry, 228 N.C. 643, 46 S.F.2d
863; State v. Webb, 228 N.C. 304, 45 S.E.2d
345; State v. Hough, 227 N.C. 596, 42
S.E.2d 659; State v. Ewing, 227 N.C. 535,
42 S.E.2d 676; State v. McKinnon, 223 N.C,
160, 25 S.E.2d 606; State v. Brown, 218
N.C. 415, 11 S.E.2d 321. Here the defend-
ant was never lawfully in the apartment of
the prosecutrix, and the presence of his
fingerprint on the inside of the window sill
in the sleeping quarters of the prosecutrix,
when considered with the other evidence,
was sufficient to carry the case to the jury.
The defendant has abandoned the remain-
ing sixty-seven exceptions set out in the
record.
The exceptions brought forward and
argued in the defendant's brief fail to show
any prejudicial error in the trial below.
No error.
Ww
‘© © Key NUMBER SYSTEM
renee ery
230 N.C. 470
STATE v. FOWLER.
No. 577.
Supreme Court of North Carolina.
May 25, 1949.
1. Criminal law €=369(1)
Generally evidence of a wholly dis-
connected offense is not admissible to prove
another and independent crime.
2. Criminal law €=365(1), 369(2), 370, 371(1)
The general rule that evidence of a
wholly disconnected offense is not admissi-
ble to prove an independent crime is subject
to the exception that proof of the commis-
sion of other like offenses is competent to
show the quo animo, intent, design, guilty
knowledge or scienter or to make out the
res geste or to exhibit a chain of circum-
stances in respect of the matter on trial
when such crimes are so connected with the
offense charged as to throw light upon one
or more such questions.
3. Criminal law €=374
In determining whether evidence of
a wholly disconnected offense should be ad-
mitted the failure of the defendant to tes-
tify must be considered,
bagi Rit
apie pel tb Aes,
ing ene Bib baths, Pe ee
4 :
mead Miia bes Hk Rhea Speakers phd APS ae PR PRES ORT IESE SAS
ees oe aoe
| I ges 72 pe a RRA tag cm yain agi
mt tee
ee #
tah)
ae U7
aber pe nesting ae
Ramragr oman ote
ARTE be ttre
dane
{aye sett oyretes
Barred in)
eat
abe
3 See pone: gh Sein case earthed oeapten, Sa:
2S ante mie where) ge Rae ERT a LIMO
Spores Sep wera Ose” Meare nehes tpenpinrat salego eis ome: ip yern, Sate opty
ful + * Capra 8 SOs :
2 at ate Robes Sas Gas me tcalin T etd aaaamie ose Ts
o berbeber en ster !
re
omual chyareh Chir featirn,
HO" gy North Carolina colles
uditoriam, we vl
4 VA
rh ate:
salle pdtrea. ve
i Bi ro! 4 f a
et thal unbapCoee
ju Spr! PH Hey: ‘tt vie Bee phiaaiae?. i oni zt
1 ¥ a ede ci NAM tide, epi 2 Ph vee, Fees he R
. ers 104 bp toh tt y Peetvag Seaiahenseh : ty
con ‘patignaly Tie tia in Ot tice phe, @ | igs be had fe Sop te nits
‘ saree Ams. at the <ibhel oti nuieiviese iad: ae pees zit! Balt
‘While 1s" the ph tie ak rinpital abs! (‘Mreay, ‘ahd SSES19» wins” ii Seid ne Dr
Sdhuping wit pe the, guest of cert ae Rei) fas; of th ‘
; J. W.: Bailey; He, Swill remain, ighay to &
gh Washiogton for ted meet! re
seinen. sbhectog
The reaiieation| ee as tte!) cepa
fi
san that heed
ent rhe esthg
We Peper
wai Tkten aid: Asher Ring that
yaw one thé aphe that Kitled
bhas < lala seotiettinedt wtad!
Fy
sections of North Carolina tn”
Democratic, Victory | Pond ee : ; ihe bas: ——.
orlc 4 WOR? a “4
Ip quiteevident(” at oki eo! ror FRIDAY ra wy = Gen HE
nd ler Serengeti | * Raleigh ae Ain Pear he
the name tmplidw) a! victory fund ‘Rehaprin, -admiicted adeh of) eign pert |
paign.” It te poe nrastind na? beat ence: hairs Atte’ tn
to note ‘the theta Used in. Ste! deltvery | }
iit ‘Amerienn ; i
set
¥
ia
ne
Democratic: '
Well as the state, this ‘Fear. i Pr
fod tn arian a a
hed 1 ed by, loners ot eon
ite i fauesitn Gener, or the) tank: a
Fg SUBUL | fti had. been (adyiistea aid n=
HE es it ee tyiemecs
\, who’ éaime: to! Greena- | Tue,
fternodn. ‘for! Wet, a
oe 3 ees = Bray, jocal com~4 je
sean eeighte: dnd -measarse;
){ Pemained: tn ithe seitye until Wediex~
fF Faisa
Tne deterinin ing tactors in deh: a
(however, te een fe? ant i socapardonii
ts, Was, found thag?
| mabjeer: ere So pail wrsea wie iy cl a, iat irs se Of guno='}
Se om an Hie con i tanelee The two end com: i
Were each found to have over
inne “capacity oy an arte oni ‘gallon nnort ‘and the two! «
it ses i
inot: av ‘apts re soelarnt tice thie! Kis sieht TAlddlé “cétnga énte : leach two, ety, ae, a
a Fr ares ten a reat lous ‘short. fe : an
: ; with oe oieet WHT be |
ny Mo Pe Honeveiitt ‘about! 1 Die comipantie’ i112 itis city as woot ad sl:
in, contetng ht he aj tio Bray} goth’ thes proper equipment, tt"
why! he ‘killed therm, ‘ Brinig The city: inspector; who _
; The, jexecutive | Ne \proveaes Ignorance of, thet: ifs ie made numerous
counsel's word rater final. in} ever, (and assum: & iblank: jeXpreasion’ ‘
Deprtontencie tye} pi | Seber, uestioned, He ia, ai 3 & set_of aw Peligistia: |
of, to a bite ey iss
= porter: -walke;
ty: 4 meditend|* trit wt
By ‘the company, and | Oe. Smiiti
“iterfertnce’ with ‘thd sooth Fine ack inj tha> city’ uttimtately | that es
Mi wilt be thecked, by iMc. Bray,: tt Feat
ate bie At he Ay ald! Arréate “wiil be Madéiwhere there
ap xf Bre ‘grotinds. for.‘ belleving the! short.
FIVE. DAY, Y. WEEK SEEN qiaken ies ieawureinert: Were. the “de-
h dee ee aions +f bleh ofthe ‘deéter, “accord: ane 2 to! the
ata Pike 00 : apuies comnilasfoner.
% i hoy h
MRS, ee
«PRAISE,
‘night ty .,Weat fer
neyatd es Ot lait year! Whidh, te! tose’ attended by. jpromi. h ladieatis
1m) schedule haa two: adit: Democrats robe jak sections of ;
Lie had i ry county | rh ry ; eS!
; Piatt alia! ‘acuta ona debra that White “tnt shbiciabn' i naajoe. Stel
a rire nnn would ; fnan’ Awl i dotatees Wwites dbipporteta’ nt: eeice ny
"one Naren Stolen in |. miafntainedd uir wary | February | ‘Goy.} Praiiklin _D. Roosevelt.) Of (New 2) @ middie:
ies Tuseday Night.)| 204 that posstbty. 40). morease, In’ pro- | Yorks ta regutd to ne Roosdveit- ees fund ada
ptr lor | diction: Wot be ecanpary, after tnd Ped tite. the eae wa ea ve
Police yesterday had onder trivestt< advent: Ob Pebrhary.”) Bile : passant steraaue Hs bY chee Seareiae!
Pation. “a mumper |i of Tobberies | com~f*" Viewhhg 1) | the’ ‘whole pictire ee FERGose Vole gre hae jaeebias
mitted Tuesday nnghte (oy [pi 4 eeeititt toced “a taltty. favorable! "pear re Ng waves, vetigy
The residence of Mrs. AJ, Barbaur,| thd: Ond-ins which WO CaN: make tet | yeahs Ay <a oh pes
: “4610 Wright. avenue, wag feported! sa ge , worse” ment onin: Mia ronsdh hs
‘Nefed, reneacked and Mev mens
ouiintrance- wel
{lwo recent,
18 PO oe A a ha La ethic ere
A z : ‘ % :
gomee ie | ke a
Wok of innocence If the ois)
Mit now in the bearts of tr«
| people ADows in & refuses
to, .eteept thew iseder
ae ECs
Cites Ported ot Betrayst, >
Davia! watalogued tte. Harare
Coailag® and Mwwer adm. nisivatees
ag the erag of “DElreye hens tac wre
j
ety Mite aie tinasian benassi pt sm si
te ” :
° 7a, “s bes? +
¥ aI
ate Ct OPT: ot LOS 85
¥
eRe ees
1 JASE i CDT
yo ASBUN PYFHY |
| HWS
jars tripe
;
OER PY
4 SO
in; my! pocket
Sasa the:
a anores
MerE I” cat
a ete ahi
ee wieder 5
> ema 2 “
: “a
Hee 1
PRE 4 se abel Steal
Cota aihiPe
Lhe: negro’ ret is. dea
4 Agere.
“ mt ay St
onraee
ner. ty,
+ |
Sr
ae) :
Beier tel Subeipr
it. oy!
Aa. ‘ .
A care Pont as were i
wom,
haa, rich al:
asked » for
; SDd mow American factories
| abroad.”
Cow paid of the farm boerd
SUSThe gorernmetita; attemps *
Pda beg ‘Bve tatitt athet ty
WA
ufo, t ai
42” -
wpnere § a poo oO plood pack
Le nard stil} a at him,
; a olive! who was gtand-
poe mgnincanhy, i
mer schoo spe gaid ;
ay: when ne te- f |
son Was rest- ‘
Hey
: ae
“Rt
Yc =
. ere rae
Pad
' charred re-
80 FRONT PAGE DETECTIVE
worked at the Blue Bell Overall Company in Greensboro.
The Leonards had two children, Fred Banks, four years
old, and Vera, a.nine-year-old girl.
'-On that morning of impending tragedy, Mrs. Leonard
had already departed for her work in Greensboro when
her husband started towards the farm of the Isleys, a
neighboring family, with little Fred. Vera was standing
on the porch, coat on, books in hand, waiting for the
school bus. However, she had never reached school. Did
the pool of blood indicate that violence had been done?
Had she really died a horrible death in the flaming inferno
that had once been a happy home?
We soon had the sickening answer. Someone in the
crowd spied a thigh bone in the’ smoking wreckage. I
requested the onlookers to pour water on the spot. Soon
gallons of
water drawn
from a nearby
well. were
poured over
the hot emb-
ers, and the
thigh-bone be-
came _ horribly
visible,
In a few
minutes wehad
removed the
FORMER SHERIFF
TELLS STORY
DO. B. Stafford was
sheriff of Guilford
County, North Caro-
lina, at the time the
Leonard case broke. It
was his persistent de-
.tective work that
trapped the vanishing
monster after a thirty-
‘year reign of -terror
and bloodshed,
mains of what
had been an in-
telligent, fun -
loving girl. On
seeing the
flame-de-
voured body of
his little child,
Robert Leon-
ard sobbed un-
restrainedly, |
while women
began to cry.
softly, and men
shuffled in em-
barrassment at
the tragic
scene.
The lower
part of little ;
Vera Leonard was simply a few cracked and blackened
bones. Strangely enough, the head and torso, wrapped _
in a heavy quilt, had not been entirely consumed by
flames. Evidently the thick blanket had partially pro-
tected her body from the licking: tongues of fire and the
intense heat. : i
HREE QUESTIONS became immediately important.
Was Vera Leonard the pitiful victim of foul play? .
Was this the work of the phantom butcher? Or was the
destruction of the girl simply an accident after all?
Coroner W. W. Harvey, who arrived on the scene
shortly after our appearance, provided a definite answer
to the first and last. Vera Leonard had been cruelly mur-
dered.
“The entire left side of the skull has been crushed,”
Coroner Harvey informed me ‘after his examination of
the pitiful remains.
“Could she have suffered that by falling—or running _
into a bed or doorway in her excitement to escape the
flames?’ I asked him, anxious to be sure.
“Impossible,” replied the coroner in positive tones.
“The fracture was made by an unusually hard blow—in
fact, a very powerful blow struck by the assailant”)
News of Harvey’s belief that the girl had been brutal
murdered and burned in the flames of her own home’
swept through the crowd. From a pack of curious onlooks:
ers they became a grim-faced, vengeful unit. I heard
waves of low, muttered conversation, like the rumble of
distant. thunder. ems
However, there was no one upon whom they could vent’*
their rage. The fiend was still a phantom. Everything
pointed to the fact that Vera*Leonard had died’ at the
hands of the super-killer. Who was he? What manner of
man or madman washe? “~.*: 1 ga
Were we, like countless other North Carolina officers ©
who had hunted the deadly will-o-the-wisp, destined for es
ignominious failure? Silently I vowed that I’d get him it>
take it took the r
ge of my life. «
ther loss of:
time we began
to hunt for»
clues. Starting” ~
at the pool of —
blood — pools, ©
rather, for we
had quickly ©
found two ad=.
ditional pud- ft.
dles—the dep-=
uties fanned out.
in an intensive
examination of 4
the premises, +
There were no.’ i
immediate ree
sults. Then,, |
warning the |
crowd not to #
. wander, we. sy
‘began to wid r e
sour search, “71
Fully an®
hourlaterDep-=) |
uty Benbow =|
called to me
from the edge ©
of a nearby s
cornfield. Hur- >
rying toward
him I saw him ‘hold aloft. a’ “ploodstained cloth bel
“No question but that-it came from her coat,” he said.
“And look here, Sheriff, the girl was dragged through,
the cornfield by her feet!’”’ Horror at the attacker’s ees”
ity caused his voice to grate. re
Benbow was right. Several long strands of hair, cecal 4
in the end of a sheared corn-stalk, bore mute confirmatio
of his theory. There were no shoe marks on the ground,.
only the flat swatch of a dragged body.
We followed the blood-speckled path to the edge of
small wood a hundred yards west of the Leonard hom
There we found shocking evidence of another attac
upon the young girl. Nearby we spied a tiny bundl
Hurrying over, we saw it was the child’s bleod-stainaay a
coat, apparently cast away by the murderer.
“If the killer tried to conceal the crime by burning the
girl, why the devil did he eave the belt and the coat?
ruminated Benbow.
“They all make mistakes,” 1 ‘told him. “In his excite-: | i
ment he probably forgot all about the coat. Anyway, I’m
calling Brown at Granite Quarry for bloodhounds. Get
back and tell Murrow and Apple to keep the crowd fro!
wandering all over the place. mea onsnued on page 129
HE
Exc
gan
Street to «
wildcat an
tion schem
ful crooke:
gan lookin;
which they
a perennia
Attempts
SEC itself
reprisals th
ers realize
have to w«
Several sc
the most si
til recently,
bucket sho;
border in ‘11
Canada «
_ tion of vii
States secu
this extrat:
look like a
could reach:
letter and
from punis!
they had co
Amazing
across the
culated to Ic
of the flin:
the manipu)
having itsel
This made
most too pe
little fault
it directs a ;
their own s:
they built
“around the
some of the
The leger
broker whc
gold mine
cards is on
Straight to t
thing for nc
us that is tk
tion.
The brok
bought this
a cent as
Christmas c:
vestment of
was able to
and thus rer
entire list <
and busines
Then, the
the last ¢
SS FRAT ey ht Maan
78
ORTH CAROLINA'S most diabolic killer commenced
his career of lust and murder at the turn of the
century—1900. Young and strong then, with the patience
and cunning of a fox, he began to select his victims.
Until the outbreak of the World War, they were mostly
women, well-proportioned and ample in figure. In the
charred remains of cabins and houses, in furrowed lanes
beneath a canopy of snow-white cotton, in fields of golden
tobacco, in dark, dense forests, they were found nude,
ravished, mysteriously slain.
Despite the fact that police had striven to trap the
mysterious assailant by every means and method at their
command, they met with complete failure. For three
decades the murderous phantom had successfully defied
detection,e watching with mocking derision as the ace
sleuths and man-hunters of North Carolina vainly sought
to track him down.
From 1913 to 1916, central North Carolina, where the
super-butcher had waged the major portion of his death-
dealing campaign, remained unusually quiet and peace-
ful.
But, on January 14, 1918, the hand of death once again
cast its shadow in sensational fashion over the district.
And the victim was a woman of considerable prominence.
On that morning, James Gilbreath, wealthy farmer and
landowner, residing near Greensboro, sect out for the city
on business. Waving good-bye to his wife, who was pre-
paring to spend the day with friends, Gilbreath drove
down the short dirt lane to the highway.
Concluding his affairs in Greensboro, he started home
A short time later he turned into the lane—but instead
of the trim green and white house reposing in welcome
at the end, a pile of blackened timbers and smoking bricks
met his gaze.
Horrified, he ran towards the smouldering ruins. Sym-
pathetic neighbors, who had vainly endeavored to put
out the flames, offered condolences and told him his wife
evidently had not been in the house when it caught fire.
A cursory search of the ruins had revealed no charred
remains.
“No,” responded Gilbreath dully, depressed at the real-
ization of his financial loss, “she is supposed to be visiting
some friends.” But almost immediately some sixth sense
sounded warning. How could he be sure
that——-? The terrifying possibility
caused his heart to miss a beat. ,, Quickly
he shouted to the neighbors ‘standing
around, “I’m going to find out for sure
whether Mary was away!” eae
Thirty minutes later James Gilbreath’s
worst fears had been realized, Tragedy
crowded upon tragedy... . Informed
that Mrs. Gilbreath. had never reached
the place of her intended visit, nor had
she been seen by neighbors, a new search
of the scorched ruins uncovered a pus of
blackened bones,
“My God! Mary! What happened?”
sobbed Gilbreath, distracted. But no *
answer could be found in the tragic little
heap of blistered bones. It was, it seemed,
an accident, Finally the police were
forced to write in their files: “Accident
or death from causes unknown.”
OT FAR from the pyre which had
consigned Mrs. Gilbreath to a mys-.
terious death nestled the tiny bungalow
of Mrs. Eunice Stevenson. Mrs. Steven-
son was familiarly and affectionately
known to her neighbors as “Aunt Lou
Bobby.” Although she was eighty-two
years old, Aunt Lou was quite active and managed to ~
derive a living from the raising of poultry and tiny vege-
table beds. Often kind-hearted neighbors would send — |
Aunt Lou samples of the preserves, bits of clothing and
cakes and pies, and with this help the aged recluse man- |
aged to get along.
One hot July morning in 1925, little Willie Newman,
ten years old, whistled gaily as he carried a pail of milk
through the fields. The milk was intended for Aunt Lou
Bobby. Reaching the bungalow in the grove of pines, the ~ a
youngster called for her. There was no answer.
Puzzled, he walked up to the door and pushed it open. i
Instantly the blood drained from his face. With a shriek +
of terror he dropped the pail and fled headlong.
N ages dolls,
of evidence that. nabled
$e
Sa fie ea! Brenig:
Ti
Deputies .
aided She:
list of cri
“Aunt Lou!”
hung herself! S}
bungalow, wher
the low rafters
a woman hung r
around her nec
formed the ceili
pad
Jone chimney. 6
sre all that re
after the mad kil
Re
,
79
| But they were quick to see that Aunt Lou Bobby had
not committed suicide. It was impossible in that low-
ceilinged kitchen. Her body partially reclined on the
floor, clearly indicating that death had not resulted from 8 a
strangulation. Moreover, blood covered her face and neck | ‘ b]
‘ and stained her hair. e 4
In the investigation which followed it was established wa ;
that she had met death at the hands of a fiendish killer. ae
A knife had cut her throat. Finger marks indicated she. Ws
had been viciously choked before the knifing. Her skull oe |
had been crushed. And a coroner’s examination estab- , #4
lished the fact that she had been lustfully assaulted. An ag ¥
82-year-old victim of rape! . ee
From the condition of the home, it was concluded that
Mrs. Stevenson had been surprised by the killer as she i
was preparing to retire. One shoe stood beside the bed, ; ‘
the covers of which had been turned back. Apparently wy
she was half undressed when the murderer stalked in ‘ota oe
and perpetrated his dreadful deed. :
Authorities were quick to voice puzzlement at the crude
attempt to fake suicide. Had the killer really intended ~
that the death of Aunt Lou Bobby should be declared
self-inflicted? Or was the crude hanging the whim of a pe
“a
'
i
te Sree arden nee
macabre and savage humor? : a
Memories of these ghastly crimes kept us silent until .
we drew up to the charred ruins of the Leonard home. . 7 ;
We were obsessed with one thought and one desire; to i
ie i get this vicious murderer and attacker of old ladies and i
4 a eee ' _ children. , " ey
ianaged to ¥ However, we had to be certain that this was murder. he AS}
tiny vege- THEY TRAILED A KILLER Pushing through the crowd to the stricken Leonard, I $a 4
ny eee MM = Depres J., menat ond Ov, Arne woe.” called Him ade our daughter Gi
i aide er afford to put an end to et ‘ : ‘ ; Ry Pea
_ eons list of crimes that raised over a period of Rs - ease ia or pane could ge eal if 4 i
§ three decades. a and run off to play w! some girl friends? =
: Newman, » & fh “No, Sheriff, she wasn’t like that,” he replied. “She was . “a Be
ailof milk (9 “Aunt Lou!” he cried to startled neighbors. “ghe’s bright for her age, and really liked school. There wasn’t « ]
Aunt Lou “4 hung herself! She’s killed herself!”.Men ran towards the anything distasteful in it for her. No, she would hardly “cf
‘ pines, the “bungalow, where a gruesome sight met their eyes. From do that.” ; ee, ’ Pe
sai @ the low rafters of the kitchen the partially nude body of In a few minutes of questioning I had gained the back-
ied it open. @ a woman hung motionless. A tow sack had been fastened ground of the Leonards. Thomas, the father, derived a
thashriek * 4@ around her neck and tied to one of the rafters which frugal living from his small farm. During the off season Po 4
he aided his neighbors in odd jobs, while Mrs. Leonard
1 7 formed the ceiling of the room,
oe wy
a es 4 Bp Yo
PUTY OFFICER :
Greensboro, Murray Benbow was one of the many
Ided Sheriff ut reless efforts finall
the Inu. bro Bouth’s’ most, fiendish:
ty
if
‘
a
a F
:
i
i
t
oN
eet Sat
*
-
ht
RICHARDSON, Barry and SHARP, Aaron, blacks, elec. NCSP
(Wilson Co.) on Sept. 26, 1930,
Trlal Judge Not Disposed To) \
I» Mh a 0 k % B tm ty §
Favor Pardon Fer Wyignt
‘ a¢ ebinds
Bynum and War. ganda
Wilson, June 18.—Judge Monry A.
Grady, of Cilaton, belioviug the four
Nogroop he sestsuced to die in tho
electrio chalr-fur the murder of Cal-
le O Williford, 70-yoar-old) Sugar
Will farmor, equally guilty, tutimates
' : he will not recommend a pardoa ‘for
Wright Bysum and William Nandall
on the etrength of recent confessions
by Acryon Hharp and Berry Kishard-
nom, confessed sleayers, who wow
exonerate the former pair of the]!
rime, :
Solicitor Gilliam also is inclined to
iscrodit tha truth of the recent con-
essions and sald that he would make
Hho ve¢ommenudatious for a pardon
ntil he had fully investigated the
Yeualbility of the confesslons, The .
rial jurlet jn a lotter to Moilleitor
Filliam, eald “this ninth hour con-
easion smacks of dupheity to me.
These med have been yprillod by 2
Nogro preacher fa Haleigh, aud it
may be that they ere luboring under
a fear of torment in the hereafter,
You and I cannot ait by aud évo two
pgullty mea escapes absolutely, whiils
two others, who {nm the vaine degree
of guilt, go to the ehairr, Jammy
apresent frame of mind st seems to
ine that $f two ara to esespe, then
pall ought to do likawiae,
“You know with what cara wé took
thia case under advisement, and
how hard wo worked to get at the
jftruth; and you know that the etata-;
ment of Gharp and Richardson Jn
the room, after I told them they
wore poling to tha eloctria chaly was
most Impresvive, L felt then, xu I
foc! now, that all of them were
guilty.”
Judge Grady requested of Solieitor
Gillam ag “full’ and frank = state-
ment,” in regard to the case. .
ee
een a a a A ace
Set teal Dnt
oy
A COLORED ANGEL.
Stephen Richardson, colored, was hanged at Wil.
mington, N. C., last week for the murder of his |
mother-in-law, Lucy Phinney, on the night of July
19. The death was slmost instantaneous, the physi- |
cians pronouncing him dead at the end of twelve
minutes. The execution was strictly private, only |
those allowed by law being admitted inside the en-
closure. At 12:12 the prisoner mounted the scaffold
and after a hymn had heen sung and a prayer offered,
made a statement to the effect that he had made his
peace with man and God; had forgiven bis enemies,
and while he was provoked to do the deed and thought
the witnesses bad not told the whole truth on the
| trial he was ready to go. He asked a blessing on the
ministers and all present, bade them farewell and at
| 12:39 the trap was sprung. His death was almost in-
| stantaneous. The body was delivered to his friends:
He was calm and cool to the last and perfectly com-
posed, and . from all outward appearances met his
death ferrlessly and resignedly. .
National Police Gazette Sept. 18, 1880
3-16-99—
NORTH CAROLINA: (inmate volunteers for execution)
James David Rich, the death row prisoner who volunteered for execution
then changed his mind and hired a lawyer, again has asked the state to
kill him.
Rich is scheduled to be executed by lethal injection at 2 a.m. March
26. He was convicted Aug. 28, 1995, in Greene Superior Court of
1st-degree murder in the stabbing death of 45-year-old Paul Sanford
Gwyn. Rich and Gwyn were both inmates at Eastern Correctional Institution
in Maury.
Rich, 26, who pleaded guilty to 1st-degree murder, also represented
himself at his sentencing hearing. After flirting briefly
with appeals, he volunteered to be executed.
Hours before Rich was scheduled to die Sept. 18, U.S. District Judge
Terrence Boyle stayed the execution. He ordered that Rich undergo a
psychiatric evaluation. State doctors found him competent to stand trial.
in February, when the March execution date was set, he agreed to fight
the execution.
But on March 11 in Greene County, Rich fired Lewis and told Superior
Court Judge James D. Llewellyn he once again was volunteering for
execution, Lewis said Monday.
(source: News & Observer)
>>
Thursday March 14, 1996 America Online: Galba33 Page: 1
» consta-
m guilty -
t life im-
ntiary at
22, 1914,
ison.
ter term
| to the
ned his
so easy, . °°
his saws
.oldover.
ided out ©
to make
George |=
‘ayear’s
lance,
mber 12, —
is usual
pped be-
confined
thing on
isturbed.’ . :
absence
sed sher-
e was of
the pris-
eir cells,
cortar ly-
ce of the
een put.
emoving
and his
y.
his tele-
deputies
ich they
ty. Next,
3utler. A
3 succeed
»dom—or
eaded by
nend to ,
series of
| ties by a
| the en-
ring kill-
ng is un- .
annals of
st of the
10. would
sentences
vper gang
issue of
). Follow =<!
| destruc-
| th police, /.
! ippens to oi.
2 defiance ©
‘ment of
e Decem-
DETEC-
all. news-
‘der your >
ow!
FRONT PAGE ‘DETECTIVE
THE CRIME OF THE VANISHING MONSTER
(Continued from page 80)
I stooped to pick up the little coat,
“ covered with dust and blood. Suddenly
~I saw what I had ardently hoped we
would eventually find—a tell-tale foot-~
“print. Although the path through the
- field to the woods contained the visible
tracks of the killer, they were all with-
out distinguishing marks,
Now, in the soft ground, I saw the
instep of a single track, which had
sunk deep. It showed. in high relief
- two letters—"U. a ” J hurried back to
my Office. teas,
brought me to attention. A voice, high-
over the wire. It was Deputy Apple.
~~. “Sheriff! he cried, “get out here
right away! We've found the letters
_ ‘U. S.’ on. the shoes of a man named
Will Moore. Got him as he was leav-
ing!”
“Be there in~ fifteen minutes!” I
*: shouted back, slamming the receiver
* down. A few seconds later Chief .Caf-
+ fey and myself were speeding back to
Sumner township. «
: As we drew to a halt beside Ben-
bow’s car Deputy Apple jumped out
-’ and hurried over; “He’s in the car
now,” he said excitedly.
-, him away before the crowd got wise.
* Says his name is Will Moore . and
- that he lives near Goshen school. That’s
about a half mile from the Leonard
» home..
+ “He’s wearing shoes now with the
‘U. S.’ trademark. He admits knowing
the Leonards but claims he was all
over the township collecting debts
when the girl was murdered. ~
WALKED over to the car. Between
Deputies Benbow and Donnavant
sat a thin, elderly-looking Negro.
“Your name is Will Moore?” I asked
» him.
‘ “Yes, boss,” he replied quietly.
“Moore, have you got a pair of white
> overalls?” I shot at him.
* these blue ones.”
“All right, we'll see.” I countered.
“Show us how we get to your house.”
“Okay, boss,” the Negro said amiably.
Ina few panies we were at Moore’s
house.
“Search it—top to bottom,” I told my
men briefly.
A quarter of an hour later we had
-uncovered vital evidence. A pair of
~ in burlap bags were: Concealed in an
- old organ!” :
We walked back to the car.
“Are these your overalls?” I asked
the Negro, pulling them from behind
my back. Moore licked his thick lips
~ and shifted between the two officers.
-. “Yes, boss, they’s mine,” he admitted.
“Then why did you Hie to us?” I de-
ervey ‘i
“<|“They’s old ones, bobs I just forgot.”
The ring of my office telephone
' “OK God! Take me away!”
‘pitched and excited, came ‘crackling
“We got.
He shook his | head.. “No, boss, just .
We rushed him to the county jail and
commenced pounding at him.
In the midst of our interrogation
Deputy Sheriff W. T. Butler rushed into
the room, his face tense and white.
“Sheriff,- we’re going to have
trouble!” he cried. “There’s at least
five hundred mobbed together already
over in Sumner Township!’ They’ve
heard about Moore. There'll be a thou- °
_ sand more by tonight.”
‘Suddenly. a_ piercing, hysterical
scream rang out. “Let me out of here!
Get me out of here!” shrieked Moore.
I bent over the terror-stricken sus-
pect. “You're lying, Moore,” I shouted.
But Moore, shrinking back, whim-
pering, shook his head, refused to
crack. Then he whispered through’
trembling lips: “Sheriff, you all go out
and leave me alone to think awhile.”
I motioned to the officers. We left.
Five minutes later we reentered the
room. The Negro looked at us.
“I killed the girl,” he remarked.
We then rushed the confessed killer
to the state penitentiary at Raleigh.
Fs Neagle at the state prison, Warden
H. H. Honeycutt met us and issued
an official receipt. His first words pro-
vided the first inkling that we had
trapped the most outrageous killer in
the crime history of North Carolina.
Peering hard at the scrawny negro,
Warden Honeycutt suddenly rasped: |
“You’re not Will Moore! You’re Asbury
Respus! You escaped from here in 1916
after serving three years for the mur-
~ der of Edward Wynn!”
Moore broke into a cackling laugh.
“What a memory you has, Warden!”
he smirked.
“Yd remember you to my dying
day,” returned Honeycutt grimly. Then
he turned to me. “Sheriff, this man was
sentenced for murder in 1913. He es-
caped in 1916,” |
But Respus made no attempt to deny
he was the escaped Asbury Respus.
“Sure I killed more than Vera
Leonard and this Wynn man. I don’t
know exactly how many people I’ve
killed. Ever since I was a little boy I’ve
wanted to kill. I had spells. I just
. wanted to kill. I’d run. If you ever saw
_ a dog with running fits, that’s like me
when I was in a spell.”
He confessed to the brutal murder
' and hanging of Mrs. i
bloodstained white overalls; wrapped i dng ee wames GlOrgath
of Summer Township in 1918.
He confessed to the ghoulish murder
and hanging of Mrs. Eunice “Aunt
Bobby Lou” Stevenson on July 18
1925, and many others.
The trial took place on October 29,
1931, at Greensboro,
On January 8, 1932, Respus walked
his last mile. As the straps were being
adjusted, he grinned malevolently and
smirked:
killing!”
rath n
£1 g
ou i plo
hn 15
jobs, OF nigh as $ gio station
Thave M's, LEWIS. RA miinols-
Many Radio Experts
Make $30, $50, $75
a Week—Malil Coupon
Do you want to make more money?
Hroadcasting stations pay Madle
Experts up to $5,000 4 year. Spare - -
time set servicing pays many $204
to $500 a year--full time servicing
gaye many $30, $50, $75 a week.
fany Radlo Experts are opening ae
Radio man- National Radio
ufacturers and jobbers pay up to Institute
$6,000 « year. Automobile. po- Established 1934
lice, aviation, commercial Radio, .
SMITH, Pres.
their own businesses.
and Loud Speaker Systems offer opportunitic- Teles
vision promises good jobs soon, Men TE trained held good
jobs in all these branches of Radio. My G4-paxe Book
points. out Radio's spare time and full time opportunities
and, those coming in Television; tells about my training:
+ how’ to make extra money while learning; shows letters
from 131 N. OR. 0. graduates telling what they are doing.
earning; shows my Money Back Agreement. Get @ copy
FREE. MAIL COUPON NOW tn envelope ot waite on
penny postal,
J. SMITH, President
National Radio Institute, Dept. 7m03
Washington, D. C.
Mail this Now
Get 64-page Book FREE d
J. E. Smith, President,
National Radio Institute,
Dest. 7MY¥3,Washington, D.C.
Dear Mr. Smith: Without
obligating me, send “Riehl
Rewards in Radio.’ whieh
points out spare time and full
time opportunities in Radio
and explains how you train men at
hume to be Radio Experts.
CUB 66.09 091 Sia olen ve ewes s etl
“I guess I won’t do no more
IN
or me
his term
murderers
» thousand
: convicted
od!
mere run-
race. While
orged from
raced far
stakes and,
» of Gover-
indred and
‘na guber-
»m—during
unistration,
auary 15th,
of her term
icy reached
ousand one
ic an effec-
nodern pe-
obstacle of
“system
to its
years
ge in
4d and
workers—
ernor Earle
nnel of the
s the mem-
clerks and
of adminis-
h the elec-
. as this is
ersonnel is
sunpowder,
is sure to
make way
Needless to
even hon-
under such
page 120)
/YRORIES
AL ULL DTU OWN 4 Wed, ddd & y
MERICA as a
whole staged
a business
recovery in
the past fiscal year
but the dope-ped-
dlers reached new
depths of depres-
sion and despair.
Between the
Treasury Agents of
the Narcotics Bu-
reau, the Customs
Bureau and_ the
Coast Guard, five
times as much con-
traband was seized
as in the previous
year. The drive
forced dope to be-
come scarce and its
price high. As a
result, the peddlers
have even turned
to robbing drug
stores and forging
doctors’ prescrip-
tions in desperate
attempts to carry
on their vile busi-
ness.
“When they start
doing that,” Nar-
cotics Commission-
er Harry Anslinger
tells me, “they are
definitely on the run.” :
Some reasons for the narcotics traffick-
ers’ woes:
The conviction of Solomon Gelb,
whom Uncle Sam called “America’s No.
1 drug addict and drug distributor.” He
was a man of many names, using at least
four fraudulent American and one Ca-
nadian passport on his drug-importing
trips. The passports led to his trial for
perjury—and sentence to a Federal pen-
itentiary for three years.
The 10-year sentence imposed on
Yasha Katzenberg, who bore the League
of Nations title, “International drug
menace.” This is the one-time bootleg-
ger who took charge of dope smuggling
for the notorious racketeer, Louis
(Lepke) Buchalter. And a bloody gang
jt was—four members were found mur-
dered in five years.
The smashing of the dope ring oper-
ating out of Kansas City, Missouri,
where political boss Tom Pendergast
also went to prison. No less than forty-
one of the dope gang’s members were
convicted, including its leaders, Angelo
Donnici, notorious “Mayor of Ninth
Street,” and Angelo (Bossie) Nigro.
An even greater number, forty-eight,
were imprisoned after the smashing of
the Miller Brothers ring working out of
‘Dallas, Texas. Among them was a
gangster who tried to dynamite his way
to safety while fleeing in an automobile.
Pursuing Narcotics Agents saw him hurl
an object into the ditch. Suspecting it
was a bundle of drugs—evidence they
needed—they ran to the ditch. The par-
cel wasn’t dope, but a spluttering dyna-
mite bomb. In the nick of time, one
of the Agents tore off the detonator cap
and fuse. Then they sped on and
caught their quarry.
Thus it went all through the year.
gaANuUAnY, 1040
BY WILLARD MANN
Little wonder that the drug-smuggling
business is in bad shape.
Federal spy-fighters now have a re-
serve force of 406 trained sleuths, grad-
uates of the FBI National Police Acad-
emy. Most of these local law officers
who studied FBI methods were brought
back to Washington recently for a
week’s advanced and specialized train-
ing in fighting espionage and’ sabotage.
FBI Director J. Edgar Hoover wel-
comed them back with an appeal to
protect “America from internal com-
bustions engendered by the fires of
hate.”
“You are a reserve force of the FBI,”
he said. “In an emergency, you will be
called to a new and broader assignment—
the purpose of which will remain the
same—the protection of the public. We
are preparing in a sane and intelligent
manner for any emergency.”
Attorney General Frank Murphy
stressed the same point in his address
to thirty-six new Academy graduates:
“T do not believe we would serve de-
mocracy by standing apathetic while
the agencies of autocracy plan and
scheme and work to establish a system
that would mean the end of democracy
and freedom.”
He warned against reckless spy hunts,
declaring, “We remember twenty years
ago when some awful things were done
in the name of justice—some cruel and
inhuman things. We don’t want that
to happen again and the best guarantee
that it will not is the fact that this work
now has been localized in the Federal
Bureau of Investigation.”
Police Chief Edward B. Hansen of
Duluth was elected president of the
Academy’s alumni. In gratitude to Mr.
Hoover, the graduates invited him to
their reunion ban-
quet—and then sur-
prised him with a
gold honorary
medal.
More straws in
the wind, indicating
Attorney General
Murphy’s intention
to clamp down on
trouble-makers in
this country.
Extra precau-
tions were taken
when President
Roosevelt made his
historic speech to
Congress on Ameri-
can neutrality.
Treasury Agents
were out in full
force to guard the
Capitol. Other Fed-
eral sleuths and
even out-of-town
private detectives
were on hand. For
the first time in the
Capitol’s history,
the Secret Service
took over the duties
of its doormen.
Admission was by
card only, and
guests were careful-
ly scrutinized. Corridors were barri-
caded at strategic points; not a nook or
cranny was left unwatched. ,
Sightseers to the Capitol are under
new restrictions and their packages are
being examined carefully. This is to
prevent any repetition of the attempt
a fanatic made to blow up the Capitol
during the last war, when America was
neutral.
An executive order by President
Roosevelt’ has added 150 men to the
FBI. And all last year, Director
Hoover’s Special Agents were quietly
streaming into Washington for special
counter-espionage training.
Mr. Hoover has received hundreds of
pledges of aid in answer to his appeal
to law-enforcement officials, civic and
industrial groups for cooperation in the
drive to keep America safe and free
from hysteria.
This case gave an FBI Police Acad-
emy graduate a real workout. A bur-
glar: named ‘William Richardson entered
a home in Rocky Mount, North Caro-
lina. Interrupted in the act, he escaped
after bludgeoning his victim over the
head with a club.
He was arrested on suspicion but de-
nied any guilt. Meanwhile, the Rocky
Mount Police Chief, an FBI NPA grad-
uate, was busy applying his Washington
training. He picked up all the clues he
could find and drove to the FBI Tech-
nical Laboratory, at Washington.
He brought:
Some of Richardson’s clothes, on
which were specks of blood, which the
suspect claimed was only chicken
blood. FBI scientists made their tests
and revealed that some of the stains
were from a chicken, but that others
(Continued on page 102)
75
fox VFFO
Eve DEVECHIV
Washington Headquarters
came from human blood.
A blonde hair removed from the club,
and another taken from the prisoner’s
sweater, Comparing these with the vic-
tim’s hair, they were found to correspond
microscopically. '
Measurements of the rubber heels of
shoes found at Richardson’s home. FBI
experts showed that these matched per-
fectly the measurements of a heel print
found on a piece of paper, on which the
suspect had accidentally stepped in the
victim’s home.
Soil specimens from the suspect’s hat,
trousers and shoes. They matched soil out-
side the victim’s home.
All this completed an air-tight. case and
Richardson’s conviction followed ‘quickly
—another tribute to FBI science.
“Some criminals commit suicide; others
fool with the U. S. Immigration Border
Patrol.” '
That’s the compliment paid to_ the
shooting ability of the 850 men that Chief
Supervisor W. F. Kelly has stationed |
our borders. There was a 10-year peri
when the Patrol averaged one gunfight
every twelve days. But outlaws are more
reluctant nowadays to fight it out with
Kelly’s men. Much of the Patrol’s shoot-
ing ability is due to Charles Askins, Jr,,
its firearms instructor. Down at El Paso,
where the gest fr Service has its
training school, Askins spends three months
on each batch of rookies, There’s a lot
they can learn—from him,
Each Federal agency has crack shots
who teach the others. And Askins is just
about tops. He was national pistol champ-
ion in 1936, and took the national all-
round pistol and revolver championship
the next year. Last year, against the na-
tion’s best free pistol shots at Camp Perry,
(Continued from page 75)
he casually took first honors again. When
he wears his medals, he’s like a medieval
knight in armor.
The head man at Washington of the
six Treasury enforcement agencies is El-
mer Lincoln Irey. The same need for co-
ordination out in the field has been met
by Treasury Secretary Henry Morgenthau,
Jr. Sixteen men, all possessing executive
ability, have been notified to handle co-
operative cases out in the country and
report to Irey. The men will serve for
four months, and then be succeeded by an
agent of another Treasury outfit.
The idea is to give each agency a chance.
For instance, an Intelligence (Income tax)
Unit man, Special Agent in Charge Hugh
McQuillan, takes over New York, New
Jersey and Delaware. And District Super-
visor E, C, Dougherty, of the Alcohol Tax
Unit, binds the Treasury activities together
at Philadelphia. Kentucky and Tennessee
are handled by Supervising Agent G. W.
Cunningham of the Narcotics Bureau, at
Louisville; and Supervising Agent F. V.
Sorrels of the Secret Service, at Houston,
governs Texas, Louisiana and Mississippi.
The Northwest goes to Supervising Cus-
toms Agent Joseph L. Green, of Seattle;
and Hawaii becomes the responsibility of
conor nad G. F. Finley of the Coast
uard,
Should Uncle Sam do something for the
widows of Federal Agents killed in line of
duty? | }
Special Agent William Ramsey, Jr., of
the FBI, was on the trail of Joseph Early-
wine, twice-paroled convict and bank rob-
ber. He finally caught him—on a farm near
Penfield, Illinois. Instead of surrendering,
Earlywine whipped out a gun and began
shooting. As he fell wounded, Ramsey re-
“Some criminals commit suicide; others fool with the U. S. Immigration Service
Border Patrol.” Here are some of the outfit’s crack shots and a few of their trophies.
(Lett to right) Inspector Paul K. Crosby; Senior Inspector Louis D. Kneek; Fire-
arms Instructor Charles Askins, Jr. (many times a national champion); Senior
Inspector Michael T. Box and Physical Education Instructor Robert P. Jackson
102
turned the fire. The gangster died instant-
ly from a@ bullet in the forehead. But his
own gunfire had taken effect—the Special
Agent died the next morning.
In such cases, Congress has usually
passed a special bill providing $5,000 for
the widow. This time, however, the bill
was killed on the ground that it wasn't
proper for Congress to pass such private
bills. It was suggested that one general law
take care of such pensions, instead of a
special claim bill each time.
This is why FBI Director Hoover now
wants such a law. He says, “I feel that
when men in our work are killed by
criminals, there should be some special
provision made for the widow and chil-
dren.”
He points out that twelve of his Special
fuente have died in line of duty since
1925.
Washington is waiting to see how Michi-
gan’s new murder law will work out. It’s
aimed against killers who dodge justice by
pleading insanity. Under the new law, a
slayer acquitted by a jury because of “in-
sanity” is automatically committed to an
asylum for life. . , . The Department of
Justice is celebrating its 150th birthday.
The nation’s first Attorney General had a
one-room office and one clerk, whom he
paid out of his own pocket. Now, the
Attorney General has 9,000 employees,
many of whom may be seen hurrying
through the Justice Building’s vast corn-
dors. . . . Real federal sleuths don’t often
use disguises nowadays. Captain William
Jarrell, head of the Secret Service in the
Pacific Northwest, says that in his twenty-
five years of service he has seen only one
Agent wear disguises—and that sleuth got
into trouble. “He had three sets of false
whiskers,” says Jarrell. “One day, while
making a quick change of mustaches, a
policeman spotted him and arrested him
as a suspicious person!”
One of FBI Director Hoover’s former ad-
ministrative assistants now has a job in
the field. He’s Robert A. Guerin, who has
taken charge of the New Jersey FBI head-
quarters at Newark... . Martin T. Manton,
the Federal judge who sold justice, has
been convicted; but_many a problem he
created lingers on. One of these has just
been settled. Back in 1936, the manufac-
turers of Schick electric shavers sued the
Dictograph Products Company, who also
were putting out electric shavers, for in-
fringement of patent rights. Dictograph
appealed the case, which it lost in a lower
court. But Judge Manton cast the decid-
ing vote in an Appeals Court decision
which cleared the Dictograph people. How-
ever, Manton was unmasked and brought
to trial in 1939. And testimony showed
that he had received vast bribes, including
one from Archie M. Andrews (now dead),
who was Dictograph’s head. So the Circuit
Court of Appeals unanimously threw out
the Manton decision. And now Dictograph
has withdrawn its appeal entirely and has
consented to pay heavy damages to the
Schick people. .. . When the 13th session
of the FBI’s National Police Academy
opens this January, it will occupy a newly-
constructed barracks at Quantico, Virginia,
near the national capital, This marks an-
other step. toward realization of Director
Hoover’s. dream. In years to come, he
says, he wants the Academy to be the
same sort of center for law-enforcement
training that West Point and Annapolis
now are for training officers of the Ameri-
can Army and Navy.
TRUB DETECTIVE MYSTERIES
the Unite:
cent thro
loss is bor
possessor
tween goo
Triply
special ink
States cu
safeguards
that of an
out the g
facture 0!
This soun:
is that th
the steel.
the paper
at the po
is sharp
distinct +,
which is
appearane {
HEN
form:
and whic!
on all no
show off-
dull aspe:
ine pape:
colored
has neve
bills can
that the;
lack the '
money.
Forme:
common,
and mor
old-time
the maj«
tion are
through
cordi ~
lace
ecre
men ..
Printing
means 0
the bogu
For an
Dollar ©
the face
portrait
printed i
word Fix
a fine gi
appears °
and the
tom but
this extr
seem suy
every itc
ease the
added br
counterfe
they wo)
color bu!
ly the ba
a@ gray ¢:
lines wi!
filmed. |
ever cau
|
JANUARY,
"SA,
Untvumsitt OF AL”
tala
+
SCHOOL CF
2
216 N.C. 304
STATE v. RICHARDSON.
No. 74.
Supreme Court of North Carolina,
Oct. 11, 1939.
1, Burglary €=41(7)
Evidence was sufficient to make out case
of burglary in first degree, notwithstanding
that there was no proof that goods alleged-
ly stolen had value of more than $20, since
statute dividing larceny into two degrees
has, by its terms, no application to a charge
of burglary. ©.S, § 4251.
2. Criminal law @=531(1)
Unless challenged, the voluntariness of
a confession will be taken for granted.
3. Criminal law G=531(1)
Ordinarily, a confession is to be regard-
ed as prima facie voluntary and admissible
in evidence.
4. Criminal law €=519(3)
The statements made by defendant, al-
though in custody or in jail, are competent,
if made voluntarily and without any induce-
ment of hope or fear.
5. Criminal law €=532(!)
_ Defendant’s objection to introduction in
evidence of alleged confession made by him
to state’s witnesses on ground that he was
in penitentiary at time was without merit,
where defendant did not request that con-
fession’s voluntariness be determined before
its introduction, and confession did not ap-
pear involuntary from state’s evidence.
—_—_+._—
Appeal from Superior Cotirt, Nash
County; C. E. Thompson, Judge.
Willie Richardson was convicted of bur-
glary of first degree and he appeals.
No error.
Criminal prosecution tried upon indict-
ment charging the defendant with burglary
in the first degree.
Verdict: Guilty of burglary in the first
degree.
Judgment: Death by asphyxiation.
The defendant appeals, assigning errors.
O. B. Moss, of Spring Hope, and N, M.
Batchelor, of Nashville, for appellant.
Harry M. McMullan, Atty. Gen., and T.
W. Bruton and George B. Patton, Asst.
Attys. Gen., for the State.
4 SOUTH EASTERN REPORTER, 2d SERIES
STACY, Chief Justice
It is in evidence that on the night of 10
February, 1939, the defendant entered the
home of Mr. and Mrs. Frank Butler, Rocky
Mount, N. C., which was occupied at the
time by Mrs. Butler, with intent the goods
and chattels of the owners therein felon-
iously to steal. Upon the discovery of de-
fendant’s presence in the house, which was
made known to him, he engaged Mrs. But-
ler in an altercation and escaped through
the kitchen door. It was later found that
he had taken a pocket book and a package
of cigarettes from the living room. On 16
February, following the arrest of the de-
fendant, he confessed to entering the But-
ler home on the night in question, taking a
lady’s pocket book which he threw away
as he found no money in it, and a package
of Chesterfield cigarettes which he carried
home with him. The empty pocket book
was found in the yard of the Butler home
and the cigarettes in the home of the de-
fendant.
[1] The point is made arguendo on de-
murrer to the evidence, that as the value of
the goods stolen is less than $20, or not
shown to be more than this amount, the evi-
dence fails to make out a case of burglary
in the ‘first degree. State v. Morris, 215
N.C. 552, 2 S.E.2d 554. It was said in
State v. Spain, 201 N.C. 571, 160 S.E. 825,
that the value of the goods stolen was not
material on an indictment for burglary, the
statute, C.S. § 4251, dividing larceny in
two degrees, the one a misdemeanor and
the other a felony, having, by its terms, no
application to a charge of this kind. The
argument is unavailing. Statev. Shuford,
152 N.C. 809, 67 S.E. 923.
[2-5] The defendant objects to the in-
troduction in evidence of an alleged con-
fession or statements made by him to the
State’s witnesses on the ground that he was
in the Penitentiary at the time. He did
not ask that its voluntariness be determin-
ed before its introduction. State v. Al-
ston; *2197N:G:: '713;.3:- Sab2d Th... This,
however, might not have been fatal to his
objection, had the involuntariness of the
confession appeared from the State’s evi-
dence, which it does not. State v. Ander-
son, 208 N.C. 771, 182 S.E. 643. Unless
challenged, the voluntariness of a confes-
sion will be taken for granted. State v.
Sanders, 8+ N.C. 728, 729. Ordinarily a
confession is to be regarded as prima facie
voluntary and admissible in evidence.
State v. Moore, 210 N.C. 686, 188 S.E. 421;
SA Ten NE TE de ce
COLTRAIN vy. ATLANTIC COAST LINE R. CO. N. G. 853
4 S.E.2d 853
State v. Christy, 170 N.C. 772, 87 S.E. 499.
“This court has held, consistently and uni-
formly, that statements made by defendant,
although in custody or in jail, are com-
petent, if made voluntarily and without
any inducement of hope or fear.” Connor,
J., in State v. Rodman, 188 N.C. 720, 125 S.
E. 486, 488.
Where there is no duress, threat or in-
ducement, the fact that the defendant was
in prison or under arrest at the time the con-
fession was made, does not perforce ren-
der it incompetent. State v. Stefanoff,
206 N.C. 443, 174 S.E. 411. “We are not
aware of any decision which holds a confes-
sion, otherwise voluntary, inadmissible be-
cause of the number of officers present at
the time it was made; norhasthe diligence
of counsel discovered any.” State v. Gray,
192 N.C. 594, 135 S.E. 535; State v. Cald-
well, 212 N.C. 484, 193 S.E. 716; State v.
Exum, 213 N.C. 16, 195 S.E. 7.
There are other exceptions, more or less
of a technical nature, all of which have
been examined without discovering any of
serious moment, and none has been found
to warrant elaboration or discussion. The
case seems to have been tried in conformity
to the applicable decisions, and the judg-
ment appears to be such as the law com-
mands. The verdict and judgment will be
upheld.
No error.
216 N.C, 263
COLTRAIN v. ATLANTIC COAST LINE
R. CO. et al.
No. 99.
Supreme Court of North Carolina,
Oct. 11, 1939.
1. Trial G=165
On motion to nonsuit, evidence which
makes for plaintiff's claim and which tends
to support his cause of action, whether of-
fered by plaintiff or elicited from defend-
ant’s witnesses, will be considered in its most
favorable light for plaintiff, and plaintiff 4s
entitled to benefit of every reasonable intend-
ment upon the evidence and every reason-
able inference to be drawn therefrom. C.S.
§ 567,
2. Negligence €>136(5)
Negligence and contributory negligence
are for jury if there is any evidence more
than a scintilla.
3. Railroads €=350(22)
In action for injuries to truck driver
resulting when struck by train at crossing,
evidence that driver, before going on track,
stopped 15 feet from track, looked both ways
and did not sce or hear train, that he start-
ed off in low gear, going about five miles
an hour, and that driver’s view of train was
obstructed by pine tops partly lying on rail-
road's right of way, presented question of
driver’s contributory negligence to jury.
4. Railroads €=301
Where railroad track crosses public
highway, both traveler and railroad have
equal rights to cross, but traveler must yield
right of way to railroad in ordinary course
of railroad’s business.
5. Railroads ©=301
While train has right of way at cross-
ing, it is duty of engineer to give signals
and exercise vigilance in approaching cross-
ing.
6. Rallroads €=301
A railroad company and a traveler on a
highway approaching a crossing are charged
with mutual duty of keeping a careful look-
out or danger, and the greater the danger,
the greater the care required of both.
7. Raliroads €=327(5)
On reaching a railroad crossing, and
before going upon the track, a traveler on
highway must look and listen in both direc-
tions for approaching trains, if not prerent-
ed from doing so by fault of railroad com-
pany.
8. Railroads €=350(16)
The duty of traveler to look and listen
when approaching railroad crossing is not
always an absolute one, but may be so qual-
ified by attendant circumstances as to re-
quire issne as to traveler’s confributory neg-
ligence, by not taking proper ieasures for
his safety, to be submitted to jury.
9. Rallroads 335.5)
If traveler fails to exercise proper care
to look and listen when approaching rail+
road crossing, it is sueh negligence as will
bar his recovery, provided it is proximate
cause of his injury.
"6E6T S12 x0q09°O (USEN) GSON *xAudse “6T SyoeTq SoTTT'M ‘NOSCUVHOIY
36?
ieee
Hi
it
iHGN
*
siti
i
7
re
+
THT
ro j
ee,
bay
PAE Saw ot
270 N.C.
and motion for judgment as of nonsuit
overruled as to the other defendants. The
trial resulted in a verdict and judgment for
‘the plaintiff for $250 and interest, and de-
fendants appealed.
Hartsell & Hartsell, of Concord, for ap-
pellants.
H. S. Williams, of Concord, for appellee.
PER CURIAM.
We have carefully examined the record
and the exceptions of the defendants and
find no error. The judgment of the court
below is, therefore, affirmed.
fp ress
214 N.C. 365
STATE v. ROBINSON.
No. 361.
Supreme Court of North Carolina.
Nov. 2, 1938.
{. Criminal law ©1077
Where affidavit upon which order per-
mitting defendant in criminal prosecution
to appeal in forma pauperis was made, was
affidavit of attorney for defendant and not
of defendant as required by statute, Supreme
Court did not acquire jurisdiction of appeal,
since requirements of statute were manda-
tory and not directory. C.S. § 4651.
2. Criminal law €=1077
The requirements of the statute provid-
ing that a convicted defendant shall have
right to appeal without giving security for
costs upon filing an affidavit that he is un-
able to give security, ete, are mandatory
and not directory. C.S. § 4651.
3. Criminal law €=1130(4)
Failure of convicted defendant to file
brief on appeal in compliance with Supreme
Court rule would work an abandonment of
assignments of error, except those appearing
on face. of record, which are cognizable on
motion, notwithstanding record and case on
appeal had been docketed in Supreme Court.
Supreme Court Rule 27.
—__—.———
Appeal. from Superior Court, Iredell
County; Wilson Warlick, Judge.
199 SOUTH EASTERN REPORTER
Ed Robinson was convicted of rape and
he appeals. On motion by state to dismiss
appeal.
Judgment affirmed and appeal dismissed.
Motion by State to dismiss appeal of de-
fendant. ;
No counsel for appellant.
Harry McMullan, Atty. Gen., and Wade
Bruton, Asst. Atty. Gen., for the State.
PER CURIAM.
The defendant was tried upon a bill of
indictment charging him with the crime of
rape. There was verdict of guilty of rape
as charged in the bill of indictment, and
judgment of death by asphyxiation. De-
fendant gave notice of appeal to the Su-
preme Court.
[1,2] Thereupon the court below made
an order permitting the defendant to ap-
peal in forma’ pauperis. It appears, how-
ever, that the affidavit upon which this
order was made is that of the attorneys
for the defendant, and not of the defendant
as required by statute. C.S. § 4651. The
requirements of that statute are mandatory
and not directory and unless there is a
compliance therewith this Court does not
acquire jurisdiction. State v. Stafford, 203
N.C. 601, 166 S.E. 734; State v. Holland,
211 N.C. 284, 189 S.E. 761, and cases cited.
[3] The record and case on appeal were
duly docketed in this Court, but defendant
has not filed brief, which, if this Court had
acquired jurisdiction of the appeal, would
work an abandonment of the assignments
of error, State v. Hooker, 207 N.C. 648,
178 S.E. 753. State v. Dingle, 209 N.C.
293, 183 S.E. 376; State v. Robinson, 212
N.C. 536, 193 S.E. 701; State v. Hadley,
213 N.C. 427, 196 S.E. 361; State v. Brice,
214 N.C. 34, 197 S.E. 690, except those ap-
pearing on the face of the record, which
are cognizable ex mero motu. State v.
Edney, 202 N.C. 706, 164 S.E. 23.
The Attorney General moves to dismiss
the appeal for that defendant failed (1) to
file affidavit as required in appeals in forma
pauperis, C.S. § 4651, and (2) to comply
with Rule 27 of this Court as to filing
briefs. This motion is allowed on the au-
thorities hereinabove cited.
However, as is customary in capital cas-
es, we have examined the record and cas¢
on appeal to see if any error appears. The
record is regular. The exceptions present-
ed are without merit. The case on appeal
ue Pore i eer aati wo ea
SEAGLE v. HARRIS
199 8.E. RQ 2h
reveals competent evidence sufficient to
sustain the verdict. The charge of the
court below clearly, fully and fairly pre-
sented the case to the jury. We find no er-
ror.
Judgment affirmed and appeal dismissed.
>
© £ KEV WUMBER SYSTEM
T
214 N.C. 339
SEAGLE v. HARRIS et al.
No. 305.
Supreme Court of North Carolina,
Nov. 2, 1938.
1. Conversion €=>15(2)
The direction in a will that testator’s
lands should be sold and the proceeds of
the sale, after payment of debts, should be
divided among the testator’s three children,
constituted an “equitable conversion,” un-
der the maxim that equity regards that as
done which ought to be done.
(Ed. Note.—For other definitions of
“Equitable Conversion,” see Words &
Phrases,]
2. Conversion =!
“Equitable conversion” is a change of
Property from real into personal, or from
Personal into real property, not actually
taking place, but presumed to exist only by
construction or intendment of equity.
3. Conversion. >!
Land directed to be sold and turned in-
to money is considered as that species of
Property into which it is directed to be con-
verted, and the rights of the parties are re-
Sarded as subject to the rules applicable to
the property in its changed and not in its
Original state, although the change may not
have actually taken place.
4. Conversion G=21(I)
Persons claiming property under an in-
‘trument directing its conversion must take
't In the character which the instrument
has impressed on it, and its subsequent dis-
Position will be governed by the rules appli-
cable to that species of property.
5. Conversion €=22(1)
The doctrine of “reconversion” 1s the
Imaginary process by which a prior construc-
tive conversion is annulled and the property
restored in contemplation of equity to its
original actual quality.
{Ed. Note—For other definitions of
“Reconversion,” see Words & Phrases.]
6. Conversion €=>22(1, 2)
Reconversion may be accomplished when
the direction to convert is revoked by act of
law, or where the parties entitled to the
property elect to take it in its original form.
7. Conversion €=22(2)
Reconversion can be effected where all
those beneficially interested in the property,
by some explicit and binding action, direct
that no actual conversion shall take place,
and elect to take the property in its orig-
inal form.
8. Conversion €=16(1), 22(3)
In order to render the principle of con-
version applicable, the power to sell and
convert must be imperative, and when a
conversion has been effected, the election of
the parties to take the property in its orig-
inal form may be inferred from acts and
conduct which manifest an unequivocal in-
tention to do so.
9. Conversion €>22(1)
Reconversion is the result of an elec-
tion expressly made or inferred by a court
of equity.
10. Conversion €>22(2)
Where testator devised the remainder
of his real and personal property to his ex-
ecutor to sell and, out of the proceeds, to
pay certain debts and obligations, and then
divide the balance among testator’s three
children, one of testator’s children was not,
without the consent of the other two chil-
dren, entitled to have one-third of the lands
allotted to her in severalty.
——__>————
Appeal from Superior Court, Catawba
County; J. A. Rousseau, Judge.
Action by Mrs. Bertha Harris Seagle
against George Harris, executor of the will
of H. W. Harris, and others to restrain
the sale of certain lands by George Harris,
executor of the will of H. W. Harris, and
for the allotment of one-third in value of
those lands to the plaintiff in severalty.
From an adverse judgment, the plaintiff
appeals.
Judgment affirmed.
atites |
“Sa ee ny
*QC6T QT dequieAeN (TT@petI) *d *S °O °N *xkudse “EE “HOeTa “PH ‘NOSNTAOU
a
se J failed) however; and
2 Sheriff. Jackeon went. toi Raleigh =
wr 1 Wages an éffort to get.a full confession,-| :
possibly involving other crimes fn
rj the, neighborhood of.the one Rob-
, Oct. ee nee? wee son viewed: of Dergetras:
een, of the
“ ‘or, :an-
_seement} son Thursday, Robinson Baid:
e jurigdic- » “Shertft, eg vou say I done it, rt
the brick-j{ ain’t: £ to -@eny. it. Yon: and
ions, which Mr. Tindaly been too @00d to me.” -
in construc- ‘. Robinson’. was. ‘In a wmitifnl conal-
' ss ton: when | he entered the death
was signed ehamber, said : Sheriff Jacksdn.:
unions 284! Trembling and _ ‘shakins, he - ~ pre:
t hostilities] sented ‘@ worry. picture. Of three
and that 30) etectrocutions which the sheriff has
at once. . vs ‘witnessed, he said that Robinson
sue will was inthe worst condition of any
, whose as. man: he had seen die.
i by both} Three Shocks: Necessary
“Robinson was taken into: “the
> | death: i thamber at 10:30 o"aléck.
tJust before the straps were ad-
justea he asked to be allowed to
make “ones: more statement” which |
twas ‘allowed:, He gaid he had made
peace with God, ‘Dut again asserted
his .finniocence. © ‘The! straps “were
——s
ce.
General. fi nite. “Robinson. ‘had pata With, his
lifes PA dake
‘Three ‘Bhocks | were. mecessayy to
text nguish | life in ‘the negro. One
them sli¢htiy. more. than a. min-
= I site's duration. _
t] *According to “Sheritt ’ Sank een:
# [ Robineon had never. denied his
re sil ened until about & week ago when
one iof the lawyers. who: defended
+ Robinson was in’ Raleizh attend-
jing to ‘some other- business. While
there he virted the prison and talk-
Pea ‘@ith. Rodinéon =. Robinson
ay 6 have asked him ‘if: there
) wasn't: something he could: do: for
him, and. the lawyer: replied: -° “No.
: Fom.”- “ou confessed’ and © thére’s.
PSDERIS a AIRE: ‘F can: @o."*
_ Feplied the ‘neera.: ‘and
then. hevhas Cipstenaly, fonted,
beaters, the ogrithe, Tee 3
Fackpon.:, Ds ay:
ity” wil,
attract-- }
then: adjusted and the current ap-{
ASE didn’t}
€4 oY De
re g
pertain? ‘that. Shs ‘beas| Shep
ne t unldeafea” tox ound foxt+}<
Body Found. Wet. ‘Bie ¥
‘Sheritt Jeckson,. when. ipskok ‘Taat luctance: ur
night, was of the opinion: that, tWe{ and: Was accom
found In FYisBing: Creak . Was, that. she. in
aoe that of Mr, Lawhon? < Tt. Dobra an’. :
found about the ‘time: the: vet s
disappeared : and ‘scpording. ta.
‘sheriff: had beén” in the... water:
a long time- being jn. "sults Aly
‘decomposed con that. ie Demand
necessary to buryit’ near. ,
ers Neat Nee creek. : ee om
i r. ‘Baldwin describes: th castes
fea as being: about” 85
age, of medium’ build ang "halah [ES
‘weighing about 150° to: een Tage
and, very gotive end mieiligent
| would like, if possible, :te -Gbtains.
| some information - concerning: At
METHODIST:
NASHVILLE, “Tenn., “Oct: : a
The aggregate! vote in the: seat.
odist: Episcopal ‘church now “qtanda |
1,132: for, ‘nnd 622° exainat ; Size
tions: 2.
The Holeton’ conference :: +
at Chattanooga, today, wated.: . wO reey
for and 150 ‘ageinet, - . Thay Nai
fourths o ¢the: ‘total vote of alt ae ee
conferences is mag A er fo ee
cation. of. the. pign;”
iJority. 0: tthe South
are yet to Vote.
oe ee
OW.
lain Mltche)he
am D4 ! ‘Winds
age ‘ategiaged: tir ta rey
ents; * RS
‘thfitence. ctv.
a in tep ieee “?
>
Libis
= 8a ee
= ost
> tay ad
he
ie
a eins cea
ee
not :
tZ a
oa ete see —
ROBERTSON black, electrocuted Wa Ce Se Fe (New Hanover) on Oct. 25 19256
“~T ELECTRIC vir a DIG. WAY 70
Death LUCA Confes-|":
«sion Made Here Following ;:
‘His Conviction.’
ALMOST ‘COLLAPSES
) 7 POISON. GAS RO
F | 3
AT. DOOR | OF DOOM! i : RESCUING © I
| Sheriff Jackson Who | Wit-}
ae =}; messed Execution, Describes!
aes . Condition as Extreme Case}
es ai} of Fright. Aes e
RALEION, Oct. 2. ()—Tom Rob-
inson, nezro of New Hanover coun.
by, went, to his death in the elec-
; i ‘Various Degrees; | :
tric chair here today, denying guilt en his latest gineer Tom Mason is.
er a gay. have been killed, and
of the crime for which ‘he was ¢on-
bs” of the: workmen are missing as
victed — an attack upon a white Sete “b> ' Oy had Othe: Slot! th i f*th
Woman. John ,Mitchell, another |< ing. * eer, CMs DLR elf conti est:
Seats: mT “-) “Sand Ohio railroad tunnel! |
negro, was also electrocuted today, ’ ; SORGehEe,
paying the death penalty’ for al: f -: : i see ees heosat here . this . _afteenos
ce en ome eenpenceesiarn
similar. crime. =
i MoMillan, who. seemed composed, | IED r Yr ‘4 40. ; " ie ce cae paren of two
tela: the spectators, itn’ an ‘even A rc Bey; a
bp t toms theta Sars het 3 fg ” byhiilee
| ay : Ppges bm Nem ) £ S 4 4 . £ if f/f
LAS Yi At. Lf SRA fa a -t a
| hare, -| M08TO, was also electrocuted today, |.
} TES. Of Be, paying the death penalty for) a} }
pe navy of thei similar crime. - Vee yes AEST eg ke
Aight drew. a!) MoMillan, who seemed composed: |
_ today ‘from|] told@’ the spectators, in’ an even
of the expedi-| Voice, that’ he was guilty, and ex-
ftehell © eo = ‘ber at the time of. MoMillan's elec- i 3 My ;
he, President’s/ trocution. was the’ husband. of the Re een
Ker Rodgers,} Woman he attacked... 1.
Mitchel). “by Robinson entered. the chamber!
‘regardless of followed, taking jhis -seat in ‘the! % >
pats before oFjelectric chair at 1042 3!
> PREVIOUSLY Coyressen {OR
mmander also .. The crime. for which ~ Robinson}; 23.
the Colonel's! ‘tortelted: hia life wan wommittea| fe?
ments for the! on the nicht of August 12." A stu:{ From.
reer” ee dent murgsé at a local hospital was!) =}:
fall: abtidca on: her way:trom attending church } ‘
f aeronautics |
trip ané@ that’
ve he was a”
iF. eek Be 3
sserted, “how:
can’ b@: helt’ ie elginc: Mowtins: Snir iat!
( Ks ‘done that eet: Bent mber. 13, - after baying! acon: 3
a ee ies pee explained’ to his landlady, a ‘Mrs. | im tiq tar
i} |e pay Stata | shotean that he would return, with- peste’
3 | eerie as ae a | ina. short timé, a Conféderate::vet-
|| asked: for. :| Bs | @ran named:Lawhon has beén miss-.
| yess yr Bite Since that time and fear az to”
Monday -. ; His gafety is expressed by ‘frien is in
) |b when it wll He came to -Wilmingtén ‘several
f | Hon of navel =
| pe was taken! & sochae 4
if members -to}: Was in Columbia, &.-C.,' and .
/ | ha to” private that prior to going ‘to Columbia’ he}.
B Peter ieee | ;had lived near Fayetteville. Whes'!-
|| agreea with! Fort’ Bragg was. established by the; !
| esterday - by: _Bovernment he ts said to have old“
tan urging 4: his land to the govergment at @
| tation of. the: g00d price and moved to. the South
| Inebesaary - to, Carolina city, beg Poe ee |
fits personnel. |, Had $1,200 bn Person: | Lips
| Jariance with. He is known to have had about|: a
establishing. : ‘ $1,200 when he first came here. and | we PIs:
| Jor the navy. ‘ . as Arated to Dr. A. M Baldwin, another VAL .
fedarate bud-/ °°." ROBINSON: =< © | Contederate veteran, with whom ne| Ud
| | £6r-the set-top ee . phecame acquainted that; he planned |./%:
'— such corps|@ negro. Robinson's arrest follow- (to take a years’..vecation,” allowing |.
. | pie fe@ shortly and“he was convicted ; himself. $100 a pay te Abus sanpry
f || Rodgers has| and sentenced “to death. . | .On the morning ‘of Beptem jes, ele
ik Captain Aj »He confessed a few.minutes after he told’ Mrs; “Morgan aetneiers showed ae aes!
tant » naval} sentence had: been passed’ and rick peat on a trip..to. Sou t (He) ae
; | Ption of thal immediately taken to Raleigh to/left his clothing and baggage.inj.
| merely, stat-/ await his execution «| Als room and since then yo ‘word!, a
| pet assigned| On the train ‘which carried him | has deen revejved: from‘ him,” : S| 7 ane
| Prailan flight} to death row; Robinson is said to | Morgan, ‘fearing, for his sa Oty BPs oo Gs:
'|ty to appear| have promised Sheriff Jackson x, Pesied to Dr. Balgwin for aid.) An{.~
| te -{fult confession» which would be |} fort is being made by Dr, Baldwin: + yy
RES Sous Pais fromthe’ pent- | tO-communicate: with a gor of Fj). Seay
| Pa SL werttten’ and mailed from: the’ pent- Spo pape
Pa 4 tentiary. Efforts to xet thjs- letter | ew non whe is said: to. fye.at Peq SAG
fh © | [tailed “nowever, and Thursday | Dee, 8 C80 far no reget nas been]
iff +.) Sherift, Jackeon went; to: Raleigh in[ atentigets ae obi Rade en
‘ one : pe ta | ‘Thinking’ perhaps the body} > Ey
W @g' an effort. to get. a full confession,.{ *o" : ee 2
= YW Ages, 2h “eNort: to : “crimes in | Of 80 Unidentified: man g>und: foxt~{ heen:
o 2S < -possibly involving other. cr ing in Fishing Creek, ay few-.miles| 2% °°
“i 4.5 (| the! neighborhood. of. the one Rob-| 2% IN city: might infisome’ way |’ #2 i:
Oct. 3.—4) | ison, wen ,convicted of .verpetrat:,) » Ccnwected with-.thenaipepbedte ic
een, of the ee ee Le sar ea ete eet cre Ane ae Bs ry Ry 5 ial oe th a tage BF &
fu Lt
=
;
@urveasire OF ALABAma
IN
a“
ay
SCHCOL CF
498 N.C,
It is alleged in the complaint:
1. That the plaintiff is indebted to the
defendant in the sum of $229.08 with inter-
est from February 18, 1938, for building
materials and lumber purchased on credit
and used by the plaintiff in the construction
of a building on a lot of land, specifically
described, situate in Moore County.
2. That on March 4, 1938, the defendant
filed material furnishers’ “lien on said land
and building, and brought action to enforce
said lien, exclusive of homestead to the said
plaintiff.”
It appears from the “facts agreed”:
3, That judgment by default was ren-
dered in said action, “purporting to perfect
said lien and declared it to be a specific lien
on said lands, and directed that said lands
be sold under execution free of defendant’s
homestead”.
* That no appeal was taken from said
judgment, and no order has been entered
setting it aside, modifying or altering it in
any way.
5. That execution was issued on said
6 SOUTH EASTERN REPORTER, 2d SERIES
125, 98 S.E. 280; Note, Ann.Ca ;
15 R.CLL. 839, mom
(1, 2] The plaintiff is entitled to prevail
only in case the judgment assailed is void.
Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350.
No appeal lies from one Superior Court to
another, State v. Lea, 203 N.C. 316, 166 S.
FE. 292, and cases there cited. The proper
way to review an erroneous judgment of
the Superior Court is by appeal to the Su-
preme Court. Finger v. Smith, 191 N.C.
818, 133 S.E. 186; McLeod v. Graham, 132
N.C. 473, 43 S.E. 935; Henderson v. Moore
125 N.C. 383, 34 S.E. 446,
[3-5] It may be conceded that the order
of sale “free of defendant’s claim of home-
stead” is discordant with the law on the
subject. Cumming v. Bloodworth, 87 N.C.
83. The court doubtless had in mind that
the plaintiff was asserting a “mechanic's
lien” which is superior to homestead, rather
than a lien for materials furnished which is
inferior to the homestead exemption of the
owner. Broyhill v. Gaither, 119 N.C. 443,
26 S.E. 31. It is the function of the Su-
— gry the sheriff to sell the preme Court to correct such errors when
~~. ee eae oo of home- properly presented for review. But unless
ig A e language of the aaron of the appellate court is
: invoked in some appropriat i
The court being of opinion “that the por- appeal or secon aie lg rc ad
tion of said judgment * * * which ad- rendered within the trial court’s jurisdic-
judges that Babcock Lumber Company is tion, regardless of their correctness in law
entitled to have Benj. Z. Cameron’s land become final and are binding on the parties.
sold free of homestead is void”, entered Southern Distributing Co. v. Carrawa 196
judgment for plaintiff restraining the sale N.C. 58, 144S.E. 535. :
except upon allotment of the homestead. ,
From this order, the defendants appeal,
assigning errors.
[6] It is provided by Art. X, Sec. 2, of
we Constitution that “Every homestead
* * not exceeding in v -
W. Clement Barrett and H. F. Seawell, sand dollars * * “4 ab he tone
Jr., both of Carthage, for plaintiff, appellee. from sale under execution or other dank
Hoyle & Edwards, of Sanford, for de- Process obtained on any debt”, save-and ex-
fendants, appellants. cept sales for taxes and purchase-money
obligations. Hence, had the judgment not
STACY, Chief Justice. ss. the ae Sg pe or had
; not been in issue, the case i
- the present proceeding, the plaintiff Bloodworth, supra, would be bah eater Ds
ne ae annul that part of the judgment ren- ity for the plaintiff's position. But with the
— 2 ma oe Babcock Lumber question of homestead admittedly at issue
ie p 4 v. Benj. Z. Cameron” which or- and decided adversely to plaintiff's claim
ers a sale of certain lands to enforce spe- though erroneously perhaps, it does not fol-
cific lien thereon “free of defendant’s claim low that the judgment, unappealed from and
of homestead . The character of the attack, unchallenged, is void, either in whole or i
whether direct or collateral, may be treated part. “A regular judgment against him dis.
with indifference in the view we take of the posing of his homestead, would not be
mi Sorcha Land & Finance Co. v. void or even irregular, but at most only
ie Poni Trust Co., 213 N.C. 369, 196 crroneous, and to be corrected, if wrong, by
3 “3 iver v. Hood, 209 N.C. 291, 183 appeal”. Simmons vy. McCullin, 163 N.C. ,
S.E. 657; Craddock v. Brinkley, 177 N.C. 409, 79 S.E. 625, 627, Ann.Cas.1915B, 244,
es
‘Lg BS graTe vy. ROGERS *% 7F2" * N.C. 499
6 8.E.2d 49%
The authority to hear and determine car- Wr it, 5
mat? <r is concluded by the former judgment.
ries with it the power to adjudge erroneous-
ly as well as correctly. Hart v. Smith, 159
Ind. 182, 64 N.E. 661, 58 L.R.A. 949, 95
Am.St.Rep. 280. This is a postulate of juris-
diction. . King v. R. R. 184 N.C. 442, 115 S.
E. 172; same case sub nomine, North Caro-
lina R. R. v. Story, 193 N.C. 362, 137 SE.
166. “A judgment not appealed from,
however erroneous, is res judicata”. North
Carolina R. R. v. Story, 268 U.S. 288, 45S.
Ct. 531, 69 L.Ed. 959. If this were not so,
why have a court of review or one for the
correction of errors?
[7] Given jurisdiction and the power to
decide, it is not perceived upon what prin-
ciple a mistake in constitutional law should
be visited with more or. less, serious conse-
quences than a mistake in common or statu-
tory law. Treinies v. Sunshine Mining Co.,
60 S.Ct. 44, 84 L.Ed. —, filed November 6,
1939; Simmons v. McCullin, supra; Koepke’
v. Hill, 157 Ind. 172, 60 N.E. 1039, 87 Am.
St.Rep. 161; 15 R.C.L. 861.
[8] Moreover, it is the general rule,
subject to certain exceptions, that a de-
fendant may waive a constitutional as well
as a statutory provision made for his benefit.
Sedgwick, Stat. and Const.Law, p. 111. And
this may be done by express consent, by
failure to assert it in apt time, or by conduct
inconsistent with a purpose to insist upon it.
State v. Hartsfield, 188 N.C. 357, 124 SEs
629.
[9] The right to claim a homestead may
be lost by failure to assert it in apt time, by .
waiver, or by estoppel. Pence v. Price, 211
N.C. 707, 192 S.E. 99; Duplin County v.
Harrell, 195 N.C. 445, 142 S.E. 481; Sim-
mons v. McCullin, supra; Caudle v. Morris,
160 N.C. 168, 76 S.E. 17; Wilson v. ‘Taylor,
98 N.C. 275, 3 S.E. 492; Hinson v. Adrian,
92 N.C. 121. The holding in Lambert v.
Kinnery, 74 N.C. 348, is not at variance
with this position. Nor is the decision in
Dellinger v.. Tweed, 66 N.C. .206, contra.
[10] Having omitted to assert his right
to a homestead in the particular land, when
the matter was in issue, we think the plain-
tiff is now estopped to relitigate the ques-
tion. Ladd v. Byrd, 113 N.C. 466, 18 S.E.
666. He may have preferred a homestead
in other lands, or at least it did not then ap-
pear that the claim of homestead would be
asserted against the enforcement of the licn
nt, 113 N.C. 537, 18 S.E. 691.’ The
[..] A judgment regularly entered by a
cous: having jurisdiction and authority to
act ‘2 the premises, from which no appeal
is taken, operates as an estoppel upon the
partizs thereto and those claiming under
them, though the judgment may be errone-
ous in law. Northcott v. Northcott, 175 N.
C. 148, 95 S.E. 104; Moore v. Packer, 174
N.C. 665, 94 S.E. 449; Gold v. Maxwell, 172
N.©. 149, 90 S.E. 115; Propst v. Cald-
weu, 172 N.C. 594, 90 S.E. 757; White v.
Tayloe, 153 N.C. 29, 68 S.E. 907; Weeks v.
McPhail, 128 N.C. 130, 38 S.E. 472; Land
Co. v. Guthrie, 123 N.C. 185, 31 S.E. 601.
“The logic of the decision in Simmons v.
Mccullin, supra, is in full support of the
def-ndant’s view.
216 N.C. 731
STATE v. ROGERS. }
No. 722.
Supreme Court of North Carolina.
a Jan. 3, 1940,
1, Homicide @151(2, 3)
* In homicide prosecution, burden was up-
c.. defendant to sustain his pleas of self-de-
¢ ise and insanity.
2. Criminal law €=519(3)
A confession made by defendant to of-
firs was not incompetent as evidence for
“reason that it was made while defendant
was in jail.
3. Criminal law €=538(3)
A free and voluntary confession is de-
serving of the highest credit because it is
presumed to flow from the strongest sense
of guilt, but an involuntary confession is
‘madmissible in evidence and merits no con-
eration.
Criminal law €=736(2), 1158(4)
The voluntariness of a confession, and
‘erefore its competency, is a preliminary
suestion for trial court, and trial court's
on the specific property for materials fur-
nished and used in the construction of the
building erected thereon. Ferguson v.
ealing thercon will not be disturbed, if sup-
yorted by any competent evidence.
Ov-6TI-T ‘(weurnd6 ButToreg uyuon seS ‘yoetq ‘soueretTo fauqnoy
WN
a
Coe
@urversity OF AL Anama
SCHRCOL OF
‘
600 NG 6 SOUTH EASTERN REPORTDR, 24 sHRIES
5. Criminal law @=>818 ;
The use by trial court in beginning of j
charge of an inadvertent expression in pis hg Ele es Sant OE aici
nection with quantum of proof required of : :
defendant, who admitted an intentional kill- [2] It is contended that the confession
ing with a deadly weapon, to rebut presump- made by the defendant to the officers while
tlon of murder in second degree, did not * Jail was incompetent as evidence against
constitute reversible error, where inadver- im and should have been excluded. No
tent expression. was later corrected by the ‘¢#50n is assigned for this position, and its
self-defense and insanity were rejected by.
CODY REALTY & MORTGAGE oS pod OF WINSTON-SALEM N.O. BOL
6 8.EB.24 Ge
"216 N.C. 742
_ WHITMAN et ux. vy. PILOT LIFE INS. CO.
No. 757.
Supreme Court of North Carolina.
Jan. 3, 1940.
Insurance €>668(8)
trial court.
SaaS linemen
Appeal from Superior Court, Durham
County; Q. K. Nimocks, Judge.
Clarence Rogers was convicted of mur-
der, and he ->peals, assigning errors.
No error.
Criminal prosecution tried upon indict-
ment charging the defendant with the mur-
der of one Howard Moore.
Verdict: Guilty of murder in the first
degree.
Judgment: Death by asphyxiation.
The defendant appeals, assigning errors.
Harry McMullan, Atty. Gen. and T. W.
Bruton and G. B. Patton, Asst. Attys. Gen.,
for the State.
Sigmund Meyer and C. W. Hall, both of
Durham, for defendant.
STACY, Chief Justice.
The record discloses that at an early hour
in the morning of November 19, 1938, the
defendant induced Howard Moore, a boy
about seventeen years of age and employed
as a news carrier, to go with him into a
wooded area in the City of Durham for the
purpose of -fellation. This accomplished,
the defendant then slew his victim by strik-
ing him over the head with a stick and cut-
ting his throat with a razor, according to his
later confession made to the officers while
in jail. In this confession, the reason as-
signed for the killing was, that the defend-
ant “was afraid he would tell it on him”.
[1] On the trial, the defendant testified
that he slew the deceased in self-defense,
and because of his perverted mind or mental
irresponsibility. The defendant’s pleas of
~~
tenableness has not been made to appear on
the record. State vy. Stefanoff, 206 N.C.
443, 174 S.E. 411; State v. Jones, supra.
[3] _A free and voluntary confession is
deserving of the highest credit, because it
1s presumed to flow from the strongest sense
of guilt. State v. Moore, 210 N.C. 686, 188
S.E. 421. An involuntary confession, on
the other hand, is inadmissible in evidence
and merits no consideration. State vy. Gib-
son, 216 N.C. 535, 5 S.E.2d 717.
[4] The voluntariness of a confession,
and therefore its competency, is a prelimi-
nary question for the trial court, State v.
Andrew, 61 N.C. 205, to be determined in
the manner pointed out in State v. Whiten-
er, 191 N.C. 659, 132 S.E. 603, and the
court's ruling thereon will not be disturbed,
if supported by any competent evidence.
State v. Alston, 215 N.C. 713, 3 S.E.2d 11.
[5] In the beginning of the charge the
court used an inadvertent expression in
connection with the quantum of proof re-
quired of a defendant, who admits an inten-
tional killing with a deadly weapon, to rebut
the presumption of murder in the second de-
gree. State v. Gregory, 203 N.C. 528, 166
S.E. 387. However, this was later cor-
rected, and we perceive no harm as having
come to the defendant in this respect.
Jones v. R.R., 194 N.C. 227, 139 S.E. 242:
— v. Baldwin, 178 N.C. 693, 100 S.E.
A careful perusal of the record leaves us
with the impression that the case has been
tried without material error. The jury re-
turned a verdict of murder in the first de-
gree, and the judgment of death as the law
commands has been entered thereon. Upon
the record as presented, the verdict and
judgment will be upheld.
No error.
In action on life and disability policy
“-ed M. Parrish, of Winston-Salem, for
pla atiff-appellant.
Smith, Wharton & Hudgins, of Greens-
be, and Manly, Hendren & Womble and
I. 2. Carlyle, all of Winston-Salem, for
de“ =ndant-appellee.
PER CURIAM.
~he evidence on this appeal fails to show
jums approv- eedzts
providing for waiver of premiums on app t=. plaintiff filed proof of total and perma-
al vf satisfactory proof of total and perma-
ment disability while policy was in force,
evidence that insured defaulted on premium
due September 15, 1936, and subsequent pre-
miums, that insured filed proof in January,
1939, and that, while insured was disabled
prior to September 15, 1936, he thought it
temporary, and did not discover until De-
cember, 1938, that disability was total and
permanent, authorized judgment as of non- -
suit.
ell
‘Appeal from Superior Court, Forsyth
County; A. Hall Johnston, Judge.
Action on a life and disability policy by
Robah JAmes Whitman and wife against the
Pilot Life Insurance Company. From.a
judgment as of nonsuit, plaintiffs appeal.
Affirmed.
. disability while the policy of insurance
w effective, and lacks sufficient excuse for
st. « failure. The judgment as of nonsuit
mst be affirmed,
oR
216 N.C. 726
3SODY REALTY & MORTGAGE CO. «
CITY OF WINSTON-SALEM.
No. 760.
Supreme Court of North Carolina.
Jan. 3, 1940.
. Municipal corporations €=57, 59
A municipal corporation has only the
Civil action for recovery of benefits un- powers granted to it in its charter or by
‘der disability provision in policy of life in-
surance.
On September 15, 1925, defendant issued
a policy of insurance upon thé life of plain-
tiff Robah James Whitman, for two thou-
sand dollars, in which his wife, Nellie Viola
Whitman, was named as beneficiary. This
policy contained a provision for payment of
benefits for total and permanent disability
as therein defined, and for waiver of pre-
miums during such disability, “upon receipt
and approval of proof satisfactory to the
company, while this policy is in full force
and effect * * *.” Evidence for plain-
tiff tends to show that the premium due
‘September 15, 1936, was not paid, nor was
“any premium thereafter paid; that plaintiff
‘filed with defendant proof of disability in
January 1939, and that while he was dis-
abled prior to September 15, 1936, he
thought it temporary, and he did not then
‘know, and did not discover until December
1938 that his disability was total and perma-
ment. ;
At the close of plaintiff's evidence the
court granted motion for judgment as in
-case of nonsuit. Plaintiff appeals there-
from to Supreme Court and assigns error.
general statutes and can exercise only such
‘overs and those necessarily incident there-
but a municipal corporation may exercise
aii powers within the fair intent and purpose
¢t its creation which are reasonably neces-
acy to give effect to powers expressly grant-
and in doing this municipal corporation
. y exercise discretion as to the means to
.> end,
_. Municipal corporations €=214(!)
As incident to the power granted to a
city by statute to sell at public auction city
realty, city had authority to employ broker
on a commission basis, to secure a responsi-
ble bidder at a public sale of tax forfeited
realty. ©.S. §§ 2688, 2787(2); Priv.Laws
‘1927, c. 232. '
z § ee
Appeal from Superior Court, Forsyth
Sounty; Felix E. Alley, Judge.
Action to recover for services rendered
by Cody Realty & Mortgage Company
against City of Winston-Salem. From a
judgment for the plaintiff, defendant ap-
peals.
Affirmed.
ees
“SS
a
ch Bb Rb ae 3
—
~~
wr
i
576 - N.C. 64 SOUTH EASTERN REPORTER, 2d SERIES
proof that on a previous occasion he has may tend to arouse prejudice will poker,
made statements corresponding to the tes- render it incompetent to be . a) Wes
timony given by him at the trial. State v. asmuch as the testimony o oe “&
Tate, 210 N.C. 613, 188 S.E. 91; State v. witness, James Bradshaw, ih ; a
McKeithan, 203 N.C. 494, 166 S.E. 336; condition of the deceased’s 8 * =
State v. Rhodes, 181 N.C. 481, 106 S.E. place where it was found nee re =
456, The trial judge restricted the evi- upon the crucial issues in t 6, oer ae
dence of Jordan to corroborative purposes ee aba ce Le
F i i issi : ence for >
elias Pa ei reer en tion or illustration. State-v. Chavis, 231
ee ses N.C. 307, 56 S.E.2d 678.
[3] The testimony for the State tended = Pye sules of law germane to the excep-
to show that the wrist watch was worn by tions reserved by the prisoner to the ad-
the deceased at the time of the homicide, mission of the confessions allegedly made
and that it was subsequently found de- by him in the presence of Sheriff Locker-
tached from her person at the place where 24 and Deputy Sheriff Weeks are sum-
the death-dealing blows were apparently marized in the next paragraph.
truck by her slayer. This being true, the © eee Sickion of
State ee entitled to offer the watch in [6-12] An extrajudicial confe
evidence and to exhibit it to the jury in guilt by an accused aren y ite
the courtroom to enable the jury to under- ae yar eae hry ee Thousbeon:
stand the evidence, and to realize more ELC ae 40 S.E.2d 620: State v.
ee ae hee are 4 “204; Moore, 210 N.C. 686, 188 S.E. 421; State
peller, ced ’ <3 :
S Vv Y/ mo and 2 Oe 90 0 Vv. Anderson, 208 N.C. ae 182 S.E. 64:
ae ee = ; es nee ; os A confession is presumed to be voluntary,
however, until the contrary appears. State
[4,5] ,The State laid a proper founda- v. Mays, ees N.C. ‘ae ae el
tion forr the introduction of the photo- State v. Grier, 203 N. = os “ -
graphs by the testimony of James Brad- 595; State v. Christy, 2 , s- :
shaw, the person who made them. He S.E. 499. _ When the a — ee fg Ge
identified them, and stated that they were confession is challenged on the groun es
correct and true representations of the it was induced by improper means, a
body of the deceased, and of the place trial Judge is required to determine ee
where it was found. The photographs question of fact whether it begat 3
were then admitted in evidence by the not voluntary before he oe eae a.
trial judge for the restricted purpose of to the jury. State v. See eet .
enabling the witness to explain or illustrate 527, 43 S.E2d 845 State v. 3 n¢ ds >
to the jury his testimony as to thé condition N.C. 205. In making this us = <u “
of the deceased’s body and as to the place quiry, the judge should afford bo =
where it was found. The prisoner insists prosecution and the defense a raer ce
that the reccipt of the photographs even opportunity to present evidence in ..
for this restricted purpose constituted sence of the jury showing the circums aA
error because of their shocking nature and es under which the pautisees Sent
their tendency to arouse passion or preju- State v. Gibson, 216 N.C. 535, : * i 46
dice. A similar argument was rejected in State v. Alston, 215: <NRC. 71 ; ee
the recent case of State v. Gardner, 228 11; State v. Smith, 213 N.C. 299, ye ie
N.C. 567, 46 S.E.2d 824, 828, where Mr. 819; State: v. Blake, 198 N.C, be oe
Justice Winborne declared that ‘Gf ‘the S.E. 632; State v. hernia Hepa
testimony sought to be illustrated or ex- 132 S.E. 603. The te es 0 er
plained be relevant and material to any is- fession is to be aes: de py
sue in the case, the fact that an authenticat- appearing in peeps Be r 3 ar
ed photograph is gory, or gruesome, and or rejected, and not by the
:
:
. STATE v, ROGERS. ® N.C: 577
Cite as 64 S.E.2d 572
ing in evidence at a later stage of the of human beings for the purposes of identi-
trial. State v. Richardson, 216 N.C. 304, fication at various schools, and had had
4 S.E.2d 852; State v. Alston, supra. ten years of practical experience in that
When the trial court finds upon a consid- work. The trial judge thereupon found,
eration of all the testimony offered on in substance, that Bradshaw was qualified
the preliminary inquiry that the confession to testify as an expert in fingerprinting
was voluntarily made, his finding is not and footprinting, and permitted him to
subject to review, if it is supported by any give the following testimony over the ex-
competent evidence. State v. Hairston, ception of the prisoner: That the Korne-
222 N.C. 455, 23-S.E.2d 885; State v. gay store: was locked up from the time
Manning, 221 N.C. 70, 18 S.E.2d 821; of the discovery of the body of the de-
State v. Alston, supra.’ A confession is ceased until the morning of June 16, 1950,
not rendered incompetent by the mere fact when he and others entered and inspected
that the accused was under arrest or in the building; that he found a newspaper,
jail or in the presence of armed officers at to-wit, the “Sampson Independent” dated
the time it was made. State v. Litteral, at Clinton, North Carolina, on June 15,
supra; State v. Bennett, 226° N.C. 82, 36 1950, lying beside a puddle of blood on
S.E.2d 708; State v. Thompson, 224 N.C. the floor of the store; that he observed
661, 32 S.E.2d 24; State v. Wagstaff, 219° the imprint of a bare foot on the exposed
N.C. 15, 12-S.E.2d 657. front page of the newspaper, and made
: j enlarged photographs of it: that six dav
[13] The record discloses that the trial ide a ae wae 2b vee by
; oe Sees t later he took the print of the corresponding
judge made due preliminary inquiry. into :
: : bare foot_of the prisoner, made enlarged
the voluntariness of the. confessions al- hotographs of it, and by that m
legedly made by the prisoner... After hear- e eS seeps Ae ips terre
: : : : pared the footprint on the newspaper with
ing the State’s: witnesses, Sheriff Locker- that of the prisoner; and that the fricti
man and Deputy Sheriff Wecks, who tes- _. a Rie saa Bias rene
; ; es ridges on the two footprints were identical.
tified to specific facts pointing to the The enlarged photographs of the footprints
single conclusion that the prisoner made oe Bie sere ech
th ‘ : ae were received in evidence over the excep-
e confessions of his own volition, the .. : ee
: ’ , tion of the prisoner for the limited pur-
trial court expressly extended to the pris- . : .
‘ E pose of. enabling the witness to explain or
Oner the opportunity to present evidence * : : :
wees : illustrate to the jury his testimony as to
showing that the confessions were not vol- ae :
: Z the characteristics of the footprints.
untary on his part, and was expressly in- :
formed by counsel for the prisoner that [14] Diligent search has failed to un-
the prisoner did not have any testimony to COver a single decision in any jurisdiction
offer upon the preliminary inquiry then in involving the admissibility of this precise
Progress. The trial judge thereupon found type of footprint evidence. It is a matter
that the confessions were voluntary, and Of common knowledge, however, in the
adjudged that they were admissible in evi- fields of crime detection and medical juris-
dence. This ruling can not be disturbed on Prudence that the permanence of the fric-
this appeal because it is supported by all tion ridges on the sole of the foot makes
the facts appearing in evidence at the time 4 naked footprint a means of identification.
of the admission of the confessions, State. See these publications: O’Hara and Oster-
v. Alston, supra; State y. Perry, 212 N.c, burg: An Introduction To. Criminalistics,
533, 193 S.E. 727, 729. pages 112-114; and Herzog: Medical Jur-
; ; WAS lence, Section 244, _Moreover, Brad-
This brin i , am < 5 Be :
A epee Pech &S_us fo the neesison whether shaw testified with positiveness that the
ne trial judge committed error in admit- eae :
ti . f : friction ridges on the soles of the feet of
ng. the footprint evidence given by the : indivi
Seats Sy human beings are as individual and per-
state's witness, James Bradshaw. i
manent as those on their fingers, and that
‘ Bradshaw testified in specific detail that the technique used in identifying naked
¢ had studied the science of taking and footprints is the same as that employed in
comparing the fingerprints and footprints identifying fingerprints.
64 S.E.2d—37
AD AMSBSA RAN”
WAN GNA
he
PURE
572. NC.
233 N.C. 390
STATE v. ROGERS.
No. 363.
Supreme Court of North Carolina.
April 11, 1951.
John Henry Rogers was convicted in the
Superior Court, Sampson County, J. J. Bur-
ney, J., of murder in the first degree, and
he appealed. The Supreme Court, Ervin, J.,
held that evidence was sufficient to sustain
conviction, and that admitting evidence of
similarity between defendant’s footprint and
a footprint at scene of the crime, was not
error.
No error.
!. Homicide €=253(6)
Evidence was sufficient to warrant
inference that defendant killed victim in
an attempt to commit a rape and robbery
upon her, and hence sustained defendant’s
conviction of murder in the first degree and
death sentence. G.S. § 14-17.
2. Witnesses C318
Where state’s witness gave evi-
dence of statements made by victim’s hus-
band. before trial,as to relevant things he
observed at scene of crime after husband
had already testified for state concerning
same matters, evidence of state’s witness
was rightly received under rule that wit-
ness may be corroborated by proof that on
a previous occasion he had made. state-
ments corresponding to testimony given
by him at trial.
3. Criminal law €=404(4)
In prosecution for murder, where evi-
dence tended to show~that wrist watch
was worn by victim_at time of homicide
and that it was subsequently found de-
tached from her person at place where
death dealing blows were apparently struck
by her slayer, state was entitled to offer
watch in evidence and to exhibit it to jury
to enable jury to understand evidence and
to realize more completely its cogency and
force.
4. Witnesses C252
In criminal prosecution, where photog-
rapher-witness identified photographs of
victim and stated they were correct and
true representations of victim’s body and
64 SOUTH EASTERN REPORTER, 2d SERIES
of place where it was found, .a proper
foundation was laid for introduction of
photographs into evidence for restricted
purpose of enabling witness to explain or
illustrate to jury his testimony as to con-
dition of victim’s body and as to place
where it was found.
5. Witnesses €=252
If testimony sought to be illustrated
or explained be relevant and material to
any issue in case, fact that an authenti-
cated photograph is gory, or gruesome,
and may tend to arouse prejudice will not
alone render it incompetent to be so used.
6. Criminal law €=517(1)
An extrajudicial confession of guilt by
an accused is admissible against him when,
and only when, it was in fact voluntarily
made.
7. Criminal law €=531(1)
A confession is presumed to: be vol-
untary, until contrary appears.
8. Criminal law €=532
When admissibility of a confession is
challenged on ground that it was induced
by improper means, trial judge is required
to determine question of fact whether it
was voluntary before he permits it to go
to jury.
9. Criminal law €=671
In making a preliminary - inquiry
whether confession was voluntary, judge
should afford both prosecution and defense
a reasonable opportunity to present evi-
dence, in absence of jury, showing circum-
stances under which confession was made.
10. Criminal law €=532
Admissibility of a confession is to be
determined by facts appearing in evidence
when it is received or rejected, and not
by facts appearing at a later stage of
trial.
11. Criminal law C=1158(4)
When trial court finds upon considera-
tion of all testimony offered on-preliminary
inquiry, that confession was voluntarily
made, his finding is not subject to review
if it is supported by any competent evi-
dence.
STATE v. ROGERS N.C. 573
Cite as 64 S.E.2d 572
12. Criminal law @=519(3, 4)
A confession is not rendered incompe-
tent by mere fact that accused was under
arrest or in jail or in presence of armed
officers at time it was made.
13. Criminal law €=531(3)
In prosecution for murder evidence
was sufficient to support finding that de-
fendant’s confession was made voluntarily.
14. Criminal law €=304(3)
It is a matter of common knowledge
in fields of crime detection and medical
jurisprudence that permanence of friction
ridges on sole of foot makes a naked foot-
print a means of identification.
15. Criminal law €=339
Proof of fingerprints corresponding to
those of accused, found in place where
crime was committed, under such circum-
stances that they.could only have been im-
pressed at time when crime was perpe-
trated, is receivable in evidence to identify
aceused as person who committed crime
charged.
16. Criminal law €=339
In prosecution for murder, ‘evidence
of defendant’s footprint at scene of crime
was properly admitted.
17, Criminal law €=393(1)
Where defendant voluntarily allowed
his footprint to be taken, he could not
complain of admission of evidence of foot-
print, on ground that he was forced to
submit to taking of it against his will.
18. Criminal law @=393(1)
In murder prosecution even if de-
fendant’s footprint was procured by com-
pulsion so as to compare it with foot-
print found at scene of crime, testimony
by witness, identifying similarity of two
footprints, could not be precluded on
ground that taking of defendant’s foot-
Print violated a constitutional guarantee
that accused shall not be compelled to
testify against himself. Const. art. 1, § 11.
19. Witnesses €=292, 298!
The scope of the privilege against
self-incrimination, only includes process of
testifying by word of mouth or in writing,
that is, process of disclosure by utterance,
and has no application to such physical,
evidential circumstances as may exist on
accused’s body or about his person. Const.
art. 1, § 11.
20. Criminal law €=519(1)
A confession made under circumstanc-
es that would reasonably lead person
charged to believe that it would be better
to confess himself guilty of a crime he
had not committed, is an “involuntary con-
fession”.
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of “Involuntary Confession”.
21. Criminal law €=519(1)
Involuntary confessions are deemed to
be testimonially unreliable and are rejected
because they are likely to be false.
22. Witnesses €=292
The constitutional privilege against
self-incrimination, bars introduction of all
statements falling within its scope without
regard for their truth or falsity. Const.
att. 21; °§ -11- 4
a Sane
Criminal prosecution upon an indictment
charging the prisoner with the murder of
Mrs. Eunice Kornegay.
The facts shown by the State’s evidence
are as follows:
1. Mrs. Kornegay, a white woman,
lived with her husband, Lester B. Korne-
gay, near the Piney Grove School in a
rural section of Sampson County. He
operated a small store, which stood near
his residence and fronted on a paved high-
way. On the opposite side of the highway
was a field, which had a depth of 100
yards or more and ended at a ditch on the
edge of a dense wood. The prisoner, John
Henry Rogers, a negro man, who some-
times traded at the Kornegay store, lived
about a mile away as the crow flies.
2. On June 15, 1950, Lester B. Korne-
gay put Mrs. Kornegay in charge of the
store, and went to Carolina Beach to fish.
He left some sixty-five dollars in silver
coins in a money box in a show case
inside the store. Mrs. Kornegay was last
seen alive by the State’s witnesses just
weawiy 30 ALMSHSBAIN|G
.S
wy
*TS6T- Le] we (Aqunep uesdwes) *d °S °D *N peqerxdydee ‘yoeTq ‘Axuoy uy®p SumpOU
nok!
714 NO.
64 SOUTH EASTERN
e
after 3:15 P.M. unlocking the front door
of the store for the apparent purpose of
selling merchandise to the prisoner, who
‘was standing nearby. The prisoner wore
khaki pants and was barefooted. He was
next seen between 5 and 6 P.M. a mile
and a-half away, coming out of some
woods from the direction of the Kornegay
Store.
3. Lester B. Kornegay returned about
7 P.M., found the store locked up, and
could not locate Mrs. Kornegay or the
key. Becoming alarmed, he called on oth-
ers for assistance, and a search ensued.
The searchers discovered a fresh trail on
the opposite side of the highway from
the store, which had patently been made
by dragging some object through the
field, across the ditch, and into the dense
wood beyond the ditch. They observed the
imprints of bare feet at two or three places
along the trail in the field, and found “a
large quantity of blood and hair in the
ditch.” Nearby lay a wrist watch habitu-
ally worn by Mrs. Kornegay, and several
broken pieces of wood “two or two and
a half feet long,” whose heavy ends were
sticky with blood and hair.
4. The trail ended in the dense wood
25 yards beyond the ditch, Here the body
of Mrs. Kornegay was found. Her skull
had been fractured, and her left arm had
been broken between the elbow and the
hand. The left side of her head had been
beaten until it was “just a mass of hair,
flesh, and blood.” “She had evidently
been dragged across the field, feet first.
All her clothes were rolled up around her
breasts, and she was completely nude from
there down.” When discovered, her body
rested on the back with the legs extended
and widely separated. A sanitary napkin,
which had apparently been removed from
her person, lay beside the body. Medical
examination revealed that death had re-
sulted from the fracture of the skull.
5. On the morning of the next day, i. e.,
June 16, 1950, the store was opened and
inspected by Lester B. Kornegay, Sheriff
P. B. Lockerman, and James Bradshaw,
a representative of the State Bureau of
Investigation. The inspection disclosed
REPORTER, 2d SERIES
that a portion of the silver coins had been
removed from the money’'box; that there
was_a puddle of blood, “five by eight or
ten inches” on the floor “next to the
icebox,” which contained beverages; that
a bag of onions had been placed upon the
puddle of blood; that a copy of a news-
paper, to-wit, the “Sampson Independent,”
dated at Clinton, North Carolina, on June
15, 1950, lay on the floor “twelve or
eighteen inches from the puddle of blood”;
and that the exposed front page of the
newspaper bore the imprint of a bare foot.
Subsequently, to-wit, on June 21, 1950,
James Bradshaw took the footprint of the
prisoner, who was then confined to jail
on the present charge, and compared it
with that found on the newspaper, and
ascertained that the two footprints were
identical. —
6. Meanwhile, to-wit, immediately after
the discovery of the body of Mrs. Korne-
gay, peace officers of Sampson County
visited the prisoner at his home, and ques-
tioned him concerning his activities and
whereabouts on the preceding afternoon
and the source of a small quantity of silver
coins he had in his possession. The prison-
er stated that he had borrowed the coins,
that he had not been near the Kornegay
store for many days, that he had worn
blue pants during the afternoon, and that
he had spent the entire afternoon working
for Percy Flowers. The falsity of these
statements was disclosed by subsequent
investigation, and the prisoner was arrest-
ed and jailed to await trial for the murder
of Mrs. Kornegay.
7. For sometime next succeeding his
incarceration, the prisoner made contra-
dictory and sometimes fantastic state-
ments either disclaiming all knowledge
concerning the death of Mrs. Kornegay, or
charging various others with perpetrating
the homicide. On June 22, 1950, however,
he told Sheriff. Lockerman that “he was
guilty of murder, but * * * was not
guilty of rape and robbery.” On Septem-
ber 25, 1950, he made the following con-
fession to Sheriff Lockerman and Deputy
Sheriff Weeks in the Sampson County
jail: That he went to the store on the
STATE v. ROGERS N.C. 575
Cite as 64 8.B.2d 572
afternoon of June 15, 1950, wearing khaki
pants and carrying a wrench in his pocket;
that after buying a beverage from Mrs.
Kornegay, he struck her with the wrench,
knocking her to the floor in an insensible
state; that he picked her up, and “toted”
and dragged her to the ditch, where she
regained consciousness; that he thereupon
heat her into insensibility with pieces of
wood, which he left on the ditch bank,
and dragged her onwards into the dense
wood, where he abandoned her; that he
returned to the store, took “two dollars
in change” from the money box, and placed
a sack of onions on a puddle of blood,
which marked the spot where Mrs. Korne-
gay had fallen to the floor; and that he
then locked the store up and departed
from the premises.
8. Immediately after making these
statements, the prisoner piloted peace of-
ficers to places where he said he had put
the wrench and khaki pants, and produced
a wrench and unearthed a rotting pair of
khaki pants, which he identified as the
wrench and khaki pants mentioned in his
confession. While on this trip, the prison-
er stated to three of his acquaintances in
the presence of Deputy Sheriff Weeks
“that he was the one that killed Mrs.
Kornegay, and that he didn’t know why he
did it.”
The prisoner testified in his own be-
half that he wore shoes on the afternoon
of June 15, 1950; that he was not in the
Kornegay store on that day; that he did
not kill Mrs. Kornegay; and that he was
afraid and “didn’t know what he was do-
ing” when he allegedly confessed to the
officers. Witnesses for the prisoner de-
posed that they saw him between 5 and
6 o'clock on the afternoon of the homicide,
and did not observe any blood on his per-
son or clothing.
The jury returned a verdict finding the
prisoner guilty of murder in the first de-
gree, but did not recommend that his pun-
ishment should be imprisonment for life in
the State’s prison. The trial court en-
tered judgment that the prisoner suffer
death by the administration of lethal gas,
and the prisoner excepted and appealed,
assigning errors.
Harry McMullan, Atty. Gen. and ae
W..- Bruton, Asst. Atty. Gen., for the
State.
James F. Chestnutt and Robert C. Wells,
Clinton, for the prisoner, appellant.
ERVIN, Justice.
[1] The prisoner insists primarily that
he is entitled to a reversal for insufficiency
of testimony. This claim is insupportable.
The evidence for the State warrants the
inference that the prisoner killed the de-
ceased in an attempt to commit a rape and
a robbery upon her. Hence, it sustains
the verdict and the resultant judgment, for
the relevant statute expressly provides
that “A murder * * * which shall be
committed in the perpetration or attempt to
perpetrate any arson, rape, robbery,~ bur-
glary or other felony, sha¥ be deemed to
be murder in the first degree”. G.S. §
14-17 as rewritten by Section 1 of Chapter
209 of the 1949 Session Laws of North
Carolina; State v. Streeton, 231 N.C. 301,
56 S.E.2d 649.
The prisoner contends secondarily that
he is entitled to a new trial because the
trial judge erred in permitting the State’s
witness, Alton J. Jordan, to testify as to
extrajudicial statements made to him by
Lester B. Kornegay; in admitting the
wrist watch of the deceased; in receiving
photographs of the body of the deceased,
and of the place where it was found; in
permitting Sheriff Lockerman and Deputy
Sheriff Weeks to testify as to extrajudicial
confessions made by the prisoner in their
presence; and in permitting James Brad-
shaw, the representative of the State Bu-
reau of Investigation, to testify as to the
footprint found in the store and the foot-
print taken from the prisoner.
[2] The State’s witness, Alton J. Jor-
dan, gave evidence of statements made by
Lester B. Kornegay before the trial. as
to relevant things he observed at the store
and in the field and wood upon his return
from Carolina Beach. Kornegay had al-
ready testified for the State concerning
the same matters, and the evidence of
Jordan was rightly received under the
rule that a witness may be corroborated by
qWO ALISHSAIN|A
wiNvayviy,
578 N.C. 64 SOUTH EASTERN REPORTER, 2d SERIES
[15,16] Asa consequence, the action of footprint to the State sens ge mae
the ‘trial judge in admitting the footprint The point in sa hg is at _
evidence given by Bradshaw is sanctioned the prisoner in the fo oe aang
by this well settled rule of evidence: That lina cases: (1) O55 v. pe ge VS
f of fingerprints corresponding to 591, 172 S.E. 400, where it wa :
acne of the accused found in the place the constitutional eget _ ps ket
ou
where the crime was committed, under such cused shall net Fe eo ee poe
circumstances that they could only have against nae oes wey eee
been impressed at the time when the crime tnany.y a witness as : pica s
7 is receivable in evidence cused’s body tending to identify
Serie Gait as the person who the perpetrator of nae ae Sa a
committed the crime charged. State v. v. Graham, 74 N.C. 64 if as 8 2
Helms, 218 N.C. 592, 12 S.E.2d 243; and State v. Thompson, a ae .
v. Huffman, 209 N.C. 10, 182 S.E. S.E. 249, where it was decided that
eR ey c be 200 N.C. 671, 158 violation of the constitutional privilege
es oo Moon State 22 Ariz. 418, against self-incrimination was eaten
8 R. 362. ission of the testimony of an of-
rkpmeacnn so oe : outa ste the accused in custody, that
We; have’ got geesyaehed 2 ge at he tade the accused put his foot in tracks
of the defense that the footprint evidence fan ck ‘ha acked ok tet’ caman antt Yoat
ought to have been excluded without re- ae REE Gcied deck tcasicx: and (3) State
gard to its probative value because of the Se bvicl FL NSS RS. cibee tk ead 288-
circumstances under which the prisoner’s
: ituti inhibition
f i btained by the prosecution. judged “thay the: -commapitiorint., tas
ootprint was 0
. i self-incrimination was not in-
Thi tention is as follows: The prison- against es iin’ ckenike Gb aia acheme i
" oP d to submit to the taking of fringed by the h y iti Pack
Lava apekte eto i as to the condition o -
er Ww : ntly. the introduc- witnesses epee
lity’ Spotprinky « Panera ee cused’s hand at the time of the
tion of evidence of its correspondence wit of the coroner’s inquest, although the ac-
the footprint fouhd at the scene of the scisads aa. deen chenpulioa’ exh tee
crime violated Section 11 of Article I of
: the witnesses by the coroner
the Constitution of North Carolina, which oe tees ee aoe
provides that the accused in a criminal #8°
: . cases are in accord with well considered
case can not be compelled to give evidence
decisions in other jurisdictions to the ef-
ageing Disha. fect that the constitutional ae
[17] This contention is untenable for against self-incrimination is not ee,
the very simple reason that its underlying by the introduction of ee % sd
remise, i. e., that the prisoner’s footprint prints to identify the accused, 1 Secs
va aiotied by compulsion, has no factual the fingerprints of the accuse ane oa
foundation. The prisoner ree, 29 payed ect ii nckee fis
fered his footprint to be taken, and for tt at Ark. 658, S.W. ; ai em -
a an not complain of the admission 112 Cal.App. 68, 296 P. 317; Bar
OF the gRriee Ladchee on the ground McFeeley, 107 ay res eel i
now assigned. State v. Cash, 219 N.C. Conners v. State, ex. Cr KR: t Su
18, 15 S.E.2d 277; State v. Eccles, 205 S.W.2d 681; McGarry v. State, a
455 825 172 S.E. 415; Garcia v. State, Cr.R. 597, 200 S.W. ere ehes st )
26 Ariz. '597, 229 P. 103; Moon v. State, monwealth, 186 Va. 689, 43 S.E. :
22 Ariz. 418, 198 P. 288, 16 A.L.R. 362; 19) Sifon Greenleaf’ ‘a iiaster of the
State v. Watson, 114 Vt 543, 49 A2d law of evidence, explained the reason sup-
174; State v. Johnson, 111 W.Va. 653, porting these and like holdings in substan-
Meo tially these words: The scope of the ae
é Dey ae ‘ P
[18] But the prisoner’s standing would lege against ee eee ge rt
it i id i d in principle, includes only ;
bettered a whit if the record did in an pr pare
ed cig that he had furnished his of testifying by word of mouth or in
STATE v. RUSSELL N.C. 579
Cite as 648.E.2d 579
ing, i. e. the process of disclosure by
utterance. It has no application to such
physical, evidential circumstances as may
exist on the accused’s body or about his
fears, no hopes, no will of the prisoner to
falsify or to exaggerate could produce or
create a resemblance of her finger pritits
or change them in one line, and therefcre
person. Greenleaf on Evidence (16th Ed.), there is no danger of error being commit-
section 469e. See, also, in this connection:
State v. Cash, supra; State v. Riddle,
supra; Wigmore on Evidence (3rd Ed.),
section 2265.
[20-22] Although judicial utterances
often commingle-and confuse the two ex-
clusionary rules, there is a basic distinction
between the rule rejecting involuntary con-
fessions and that excluding statements in-
hibited by the constitutional privilege
against self-incrimination. An involuntary
confession is “made under circumstances
that would reasonably lead the person
charged to believe that it would be better
to confess himself guilty of a crime he had
not committed.” State v. Grier, [203 N.C.
586, 166 S.E. 597.] supra. For this rea-
son, the law deems involuntary confessions
to be testimonially unreliable, and rejects
them because they are likely to be false.
State v. Patrick, 48 N.C. 443. The consti-
tutional privilege against self-incrimina-
tion, however, bars the introduction of all
statements falling within its scope without
regard for their truth or falsity. People
v. Fox, 319 Ill. 606, 150 N.E. 347.
This being so, the footprint evidence in
the instant case can not be likened to an
involuntary confession for reasons similar
to those invoked by a New York court in
sustaining a statute which provided, among
other things, that no person convicted of
Specified crimes should be sentenced until
fingerprint records were searched “with ref-
erence to the particular defendant,” Laws
N.Y.1916, c. 287, for. the purpose of as-
certaining whether or not there had been
@ prior conviction. “No volition—that is,
no act of willing—on the part of the
mind of the defendant is required. Finger
Prints of an unconscious person, or even of
a dead person are as accurate as are those
of the living, * * * By the require-
ment that the defendant’s finger prints be
taken there is no danger that the de-
fendant will be required to give false tes-
timony. The Witness does not testify. The
physical facts speak for themselves; no
ted or untruth told.” People v. Sallow,
100 Misc. 447, 165 N.Y.S. 915, 924. See,
also, Inbau: Self-Incrimination, pages 32-
41.
When this case was heard in this court,
the prisoner moved in arrest of judgment
on the supposition that the grand jury
which indicted him had not been sworn.
This motion is disallowed because the rec-
ord proper reveals that the requisite oath
was administered to all the grand jurors.
As the trial judge did not commit error
in any matter of law or legal inference,
the proceedings had in the coyrt below
must be upheld.
No error.
°o KEY NUMBER SYSTEM
“ume
233 N.C. 487
STATE v. RUSSELL.
No. 74,
Supreme Court of North Carolina.
April 18, 1951.
Johnny Russell was convicted in the Su-
perior Court, Buncombe County, J. C. Rudi-
sill, J., of murder in the second degree and
defendant appealed. The Supreme Court,.
Stacy, C. J., held that the evidence was suf-
ficient to sustain conviction as against claim
of self-defense,
No error.
1. Criminal law €=519(1)
In murder prosecution, where the rec-
ord failed to disclose any challenge to the
voluntariness of defendant’s confession,
either before or after its reception in evi-
dence, nor was there any repudiation,
disavowal, or denial of the statements con-
tained therein, fact that defendant stated
that he was all upset and worried. to death
at the time of making confession did not
render confession inadmissible.
“AO RESRARINN
YAN BG
ee RR i Aan Nn
oe
jn fo eal eee
peieer
Seat ee pawn
Re itil
858 =+(N.C. 70 SOUTH EASTERN
Upon the trial in Superior Court, the
State offered evidence tending to show this
narrative: Mrs. Beulah Miller Hinshaw, a
widow, 65 years of age, residing alone in
her home on South Main Street in the city
of Lexington, North Carolina, came to
her death at some time on Sunday night,
August 12, 1951, after the hour of 9 o’clock.
Her body, practically nude, and battered,
bruised and cut, was found about 8 o’clock
on the morning of August 13, 1951, in the
back hall of her home, lying on papers,
books, and other contents emptied from
nearby trunks, and covered with a counter-
pane or bedspread. Blades of grass and
trash were on a garment upon which her
body rested. Autopsy revealed, and medi-
cal expert expressed opinion, in summary,
that the primary cause of her death was
traumatic shock from trauma consisting of
numerous abrasions and contusions on the
body, laceration of the left side of neck,
stab wound of left chest wall, four frac-
tured ribs over left side, and stab wound of
left lung with hemorrhage,—that all con-
tributed to and caused her death. There
were wounds and abrasions indicating, in
opinion of medical expert, that “her vagina
had been entered by some means.”
The screen door at the back porch of
her home had been cut, at a point where
the inside latch could be reached, and the
back door was unfastened. Her ear-bobs
were found on the back steps.. In the north-
west corner of her back yard the grass was
trampled down. At this place her glasses,
in broken parts, were found. So were torn
pieces of her under garments. A left foot
boot, with top cut off, was found between a
little building, just back of her back door,
and the north corner of the yard.
Inside the house and in one of the opened
trunks in the back hall, there was a small
metal box, which bore indications of finger
prints. Dresser drawers were opened and
contents strewn about. A purse of money
was not missing.
Mrs. Hinshaw owned a wrist watch. She
also had her deceased husband’s watch and
pistol.
Defendant worked for an ice company.
His duties were pulling ice and tending the
REPORTER, 2d SERIES
platform after the plant closed in the even-
ing until the next morning. He wore boots
—with tops cut off. On Sunday night, Au-
gust 12, 1951, about 8:30 o'clock, he left
the ice plant in one of the plant trucks, say-
ing that he was going to carry his wife
to the hospital. He was wearing cut off
boots. After 9:30 o’clock his wife was at
home and he was not there. He returned
to the plant around 11:30 o’clock that night.
He was barefooted. Later his right foot
boot, with top cut, was found at the plant.
The finger prints of the metal box, found
in the opened trunk of Mrs. Hinshaw were,
in opinion of expert, his finger prints. The
left boot, found back of Mrs. Hinshaw’s
house, in opinion of expert, matched the
right foot boot of defendant found at the
plant.
The watches and the pistol, above re-
ferred to, were found a day or so later ina
pack house across the street from the ice
plant,—to which pack house defendant
alone at the time had a key.
And there was evidence of other circum-
stances,
Defendant did not testify, nor did he of-
fer evidence upon the trial. But officers
testified that he proclaimed his innocence.
Verdict: That the defendant, John An-
drew Roman, is guilty of the felony of
murder in the first degree as charged in the
bill of indictment.
Judgment: Death by inhalation of Icthal
gas as required by law.
Defendant excepted thereto, and appeals
to Supreme Court, and assigns error.
Hosea V. Price, Winston-Salem, for de-
fendant-appellant.
Atty. Gen. Harry McMullan, Asst. Atty.
Gen. Claude L. Love, for the State.
WINBORNE, Justice.
The record of case on appeal discloses
that defendant groups his exceptions under
eleven assignments of error. In his brief
here he states four questions as being in-
volved on the appeal. But he confines his
argument exclusively to the assignment of
error based upon exceptions to failure of
the trial court to charge the jury in accord-
Misieien ne nrreries:)
- STATE v. ROMAN
N.G = 859
Cite as 70 S.H.2d 857
ance with provisions of G.S. § 1-180, as
amended by Chap. 107 of 1949 Session
Laws of North Carolina.
[1] Hence, those exceptions, in support
of which no reason or argument 1s stated
or authority cited, will be taken as aban-
doned by him in accordance with provisions
of Rule 28 of the Rules of Practice in py
Supreme Court, 221 N.C. 544, at pages 56 —
563, Nevertheless, since this is a capital
felony, we have examined the matters to
which those exceptions relate, and find in
them no merit.
[2] Indeed, the incriminating circum-
stances, revealed by the evidence offered by
the State are “ ‘of such a nature and so con-
nected or related as to point unerringly to
the defendant’s guilt - hg ciel
ny other reasonable hypothesis.
State y. Stiwinter, 211 N.C. 278, 189 S.E.
868”. See State v. Fulk, 232 N.C. 118,
59 S.E.2d 617. Such evidence 1s legally
sufficient to take the case to the jury, and
to support a verdict of guilty on the charge
under which defendant stands indicted.
necessary to explain the application of the
law thereto; provided, the judge shall
give equal stress to the contentions of the
plaintiff and defendant in a civil action,
and to the state and defendant in a crim-
inal action.”
It is contended that the court stated the
evidence in too much detail, and too great
length,—so much so that it amounted to a
statement of the State’s contentions, rather
than of the evidence,—that this is true, par-
ticularly in view of the fact that the de-
fendant introduced no evidence.
[3] However, from a careful reading of
the charge, as given, in the light of the pro-
visions of this statute, and of the situation
in hand, it does not appear that the trial
judge transgressed either the letter or the
spirit of the statute.
[4] It is also contended that the trial
court, in charging the jury, erred in not
defining the crime of rape, in connection
with definition of murder in the first degree.
G.S. § 14-17. In the light of the testimony
offered by the State as to the cause of the
death of decedent, it would seem unneces-
And in respect of the exception peene sary for the court to ihie tee. The court
and argued by defendant, we turn to the Seanad thoroughly and seanty as °
provisions of the statute—GS. § 1-180 a5 iment of premeditation and deliberation.
so amended. It reads: “No judge, in giv-
And the bill of indictment is in compliance
ing a charge to the petit jury, either =.s with the form prescribed by statute, &S:
civil or criminal action, shall give an opin-
15-144. See also State v. Kirksey, 227
ion whether a fact is fully or sufficiently } G 44s, 42 S.E.2d 613.
proven, that being the true office and prov-
Finally, we say, and hold that error is
ince of the jury, but he shall Age: not made to appear in the record and case
explain the law arising on the bess ces aueeak i Sin oul = hand:
given in the case. He shall not be require
to state such evidence except to the extent
No error.
—*
856 = sON. GG.
on penalty of forfeiture, whether made on
probable cause or not, will furnish those
who would profit by a will procured by
undue influence, or made by one lacking
testamentary capacity, with a helpful cover
for their wrongful designs.”
In In re Kathan’s Will, supra [141 N.Y.S.
710.], the Court said: “We must remember
that the statute of wills is a part of the
public law, and a condition that an heir shall
not be permitted to show testator’s want of
testamentary capacity or his other non-
compliance with the statute of the state
without forfeiting the legacy is * * *
contrary to public order and_ policy
x * *”
In the case of Rouse v. Branch, supra
{91 S.C. 111, 74 S.E. 135.], the Supreme
Court of South Carolina said: “No case
has been cited, and we do not believe any
can be found, sustaining the proposition
that a devisee or legatee shall not have the
right, upon probable cause, to show that
a will is a forgery, without incurring the
penalty of forfeiting the estate given to
him by the will. The right of a contestant
to institute judicial proceedings upon prob-
able cause to ascertain whether the will was
ever executed by the apparent testator is
founded upon justice and morality. Ifa
devisee should accept the fruits of the crime
of forgery under the belief, and upon prob-
able cause, that it was a forgery, he would
thereby become morally a particeps criminis,
and yet, if he is unwilling to commit this
moral crime, he is confronted with the al-
ternative of doing so, or of taking the risk
of losing all under the will, in case it should
be found not to be a forgery. Public policy
forbids that he should be tempted in such
a manner.”
The Supreme Court of Iowa, in over-
ruling the case of Moran v. Moran, 144
Iowa 451, 123 N.W. 202, 30 L.R.A.,N.S.,
898, in the case of In re Cocklin, supra
[236 Iowa 98, 17 N.W.2d 135.], quoted with
approval the above statement from the
Supreme Court of South Carolina, and then
stated: “By the same token, if a will was
executed as the result of fraud, would not
a legatee, who knew of the fraud but stood
silently by fearing to risk loss of his legacy
70 SOUTH EASTERN REPORTER, 2d SERIES
and accepted the fruits of the. fraud, be
morally a party to it? Also, a will executed
by an incompetent is legally. no more his
will than if it were forged and a will se-
cured by undue influence is as repugnant
to the law as one secured by fraud... Public
policy forbids that one should be tempted
to let such wills prevail. The administra-
tion of justice should not be frustrated in
such a manner.”
In Calvery v. Calvery, supra [122 Tex.
204, 55 S.W.2d 530.], the Court said: “The
great weight of authority sustains the rule
that a forfeiture of rights under the terms
of a will will not be enforced where the
contest of the will was made in good faith
and upon probable cause”, citing White-
hurst v. Gotwalt, supra, and numerous other
decisions.
Those authorities that hold that a clause
in a will providing for the forfeiture of the
interest of a beneficiary contesting the in-
strument or its provisions, is valid and én-
forceable, even though such contest might
have been instituted in good faith and with
probable cause, adhere to the idea that a
failure to enforce the forfeiture would
result in thwarting the intention of the
testator and would tend to encourage liti-
gation in families. But, if a will has been
procured by undue influence or fraud, there
is no intent of the purported testator to
thwart, sustain, or defeat. Tate v. Camp,
supra.
In our opinion, a bona fide inquiry wheth-
er a will was procured’ through fraud or
undue influence, should not be stifled by any
prohibition contained in the instrument it-
self. In fact, our courts should be as ac-
cessible for those who in good faith and
upon probable cause seek to have the genu-
ineness of a purported will determined, as
they are to those who seek to ‘find out the
intent of a testator in a will whose genuine-
ness is not questioned.
Forfeiture clauses are usually included in
wills to prevent vexatious litigation, but we
should not permit such provisions to oust
the supervisory power of the courts over
such conditions and to control them within
their legitimate sphere.: Friend’s Estate,
supra.
oe ae pie it awe
COUT grate y, ROMAN
N.O. 857
Cite as 70 S.H.2d 857
There is a very great difference between
vexatious litigation instituted by a disap-
pointed heir, next of kin, legatee or de-
visee, without probable cause, and litiga-
tion instituted in good faith and with prob-
able cause, which leads the contestant to
believe that a purported will is not in fact
the will of the purported testator. We think
it is better to rely upon our trial courts
to ascertain the facts in this respect.
We, therefore, adhere and follow the
rule laid down by way of dictum in White-
hurst v. Gotwalt, supra, not under the doc-
trine of stare decisis, but by reason of its
soundness.
The judgment of the court below is af-
firmed.
235 N.C. 627
STATE v. ROMAN.
No. 654.
Supreme Court of North Carolina.
May 21, 1952.
The defendant was convicted in the Su-
perior Court of Davidson County, J. W.
Pless, IJr., J., of first degree murder, and he
appealed. The Supreme Court, Winborne, Jus
held that charge of the Superior Court did
not violate statute providing. that no judge,
in giving charge to jury, shall give an opin-
ion whether a fact is fully or sufficiently
proven.
No error.
{. Criminal Law €=1178
Those exceptions, in support of which
no reason or argument was stated or au-
thority cited by defendant, would be taken
as abandoned by defendant. Rules of Prac-
tice in Supreme Court, rule 28.
2. Homicide €253(1)
Evidence sustained conviction for mur-
der in the first degree.
3. Criminal Law €°762(1)
In murder prosecution, charge to Jury
did not violate statute providing that no
judge, in giving charge to jury, shall give
10 S.B.2d—54%
an opinion whether a fact is fully or suffi-
ciently proven, but shall declare and ex-
plain the law arising on the evidence given
in the case. G.S. § 1-180.
4. Criminal Law €=800(4)
In murder prosecution, evidence did
not require trial court to define the crime
of rape in connection with the definition of
first-degree murder. G.S. § 14-17.
——_———
Criminal prosecution upon a bill of in-
dictment charging that “John Andrew Ro-
man, late of the county of Davidson, on the
12th day of August, A.D. 1951, with force
and arms, at and in the county aforesaid,
unlawfully, wilfully, feloniously and of his
malice aforethought, did kill and murder
Mrs. Beulah Miller Hinshaw against the
form of the statute in such case made and
provided and against the peace and dignity
of the State.”
The record and case on appeal discloses
these facts:
Defendant, upon arraignment, pleaded
not guilty.
Defendant moved that the court in his
discretion, order a special venire of jurors
to be summoned from some other county
than Davidson County as provided by law.
The motion was allowed, and it was agreed
by attorneys for defendant and by the
solicitor for the State that a special venire
be ordered from Guilford County. And de-
fendant requested that the proper propor-
tion of Negroes be included in the venire
and suggested that this should be from 25
to 33 per cent, and this suggestion was ac-
cepted by the court.
The names of the 50 special venire jurors
from Guilford County were placed in the
hat by the clerk and child under ten years
of age drew their names from the hat in
accordance with law. The following named
jurors were selected and sworn and em-
panelled as jurors in the trial of this case:
C. R. Johnson, and eleven others, naming
them, four of whom were members of the
Negro race. And in like manner an alter-
nate juror was selected, sworn and em-
panelled, and thereupon the jury was agals
empanelled.
:
bab ie)
) ULION ses
UTTOIe
co-9-9 ‘yoetq ‘(uospTae)e
‘NT VWTOU
ee ee
Be! eee y
| eee,
ee re ee
be
ei eae ed
a Sag Gee OLS:
Bie
Sey 2 |
*
Fingerprints At Hinshaly Home
| {Match Those: Of Charged Man
| Accused ls Moved From County Jail a
~ For Safekeeping By Local Police —
A warrant, charging Jotfn Andrew. Roman, local Negro with
the murder of Mrs. Beulah Miller Hinshaw, 65-year old Lexing-
ton widow, here Sunday night, was sworn Out today: by Chief V.-
G. Price.
~} - Chief Price, in making a public statement in’ the case, snide:
charges against Ronian were official today. The Negra ice plant’.
worker has been.a Suspect ‘since Monday when he was picked up.
‘ ry ‘ t 4 ard Agyl? « i * 25 ki C7 ,
by police for ‘questioning.
in Riaking his statement to ‘The Dispatch this méeniag Chiet
Price said he had Kept the whereabouts of Roman secret due’ to,
Fy {the fact that he had reccived unidentified telephone ‘calls threate:
ing to.do bodily harm to Roman. He did not.
Statemenj, ae eens
5 te
Ws | Actual whereabouts of the Negro wat not. ‘made public thid’”
«| morning. Roman: did spend the “night in Davidson County. jaif
jy | Tuesday night afte ‘ 4 Negro. suspect was’
y {held, but he was fiot in jai night or last night,
f Price’ in’ his” statements
said © fj
z
esumption Of
FC Probe Is.
Ruite Possible
: - * +de
RY'ashin stone Senator May:
TE (DSC) seus poibitity’ that | .
¢ long drat nome InVestigaticn, of | 148
» séconstruction tihance cotpora~| fea
n-matabe resumed,
His view was disclosed as temp-| reporter that
“sharpened: today in # Senate
king . committee dispute “over
nether to eriti¢izé the’ White
Use “anew in a sreport on: politi-
influence in’ the REC,”
Senator Fulbright (D-Ark), de-
Tofax
| American: and Fili- ues “Were a pistol
Pino’ officials: hope’ to ches allegedly’ owned
treaty into shape in ti ‘victim: and. missing ‘from
| Signing ceremony at t use since the. time “of her.
| peace meetin sie :
Francisco: aw The. .38-calibre pistol, one Mra,
2 sive AS: similar” U.SAustralia-n y| Hinshaw kept in a drawer of ‘her
Incing ds unduly Schnee . * | Zealand defense ‘alliance is dig bedroom, her own ‘Watch’ and a2.
psi yb! nis Pas FC |be approved there Sept? L- Three | Pocket watch of het Jaté husband,
enahdsoecate me which | d0ys dater-some "30. nations wilt |H-W..Hinshaw, that the victim
f
ped the ‘document of. official
but;-it, may be only a
wing
POTS yom
folbright, himself st odds with open Branese arrangement {Ca Nas Fork
niget tO sign % final tapanese peace | *#tried with her, we
/tedty, | One-story “brick, dui
Ameri iH 204 ficials ‘tonfidently in. freat: of the
pident “Fruman, wants. the ‘cdby Will “be! cofiehitded “ater “to. give
ve fo stick tan eather’ A
hith it charged. the RFC
to political ‘pressures OF; :
ice, Ting with White House con- aty oinitly by the
vee
een. | first 4
‘
id. “3. in- god. sroupd pan
itt :
tepdrt pAmMecrican.” afmed forces © defense |,
peace
« BGfain, was |
; At the
itect, U.S,
\ John Foster Duttes,
pi Ore -for any - 4
ck :
Jones | Conim
while , the plant
cid sill alie haaes noms
His only
delivery
form to
the “plant for: it.
Roman's, age . is * pot -
known, but Chieg
ee".
rei
AY " iin
adpkyxiated NCSP (Davideon County) OG 0s para e
Ps
4
}
ri a}
fs rs
5 Tales
?
95
The fact that the widow had been
stabbed first and then beaten sug-
gested a vengeance motive.
“But a maniac would operate the
same way,” the Chief said. ‘And those
papers from the trunk all over the floor
—that could mean a robbery attempt.”
He summoned Sheets. “You knew Herb
Hinshaw pretty well, didn’t you?”
“For about twenty years. He was a
straight-shooter, very devoted to
Beulah. And she was crazy about him.
Why, he’s been dead eleven years and
she still puts flowers on his grave every
Sunday afternoon.”
Price considered this information.
“Every Sunday afternoon, eh? Yester-
day was Sunday. I wonder how she got
there. Know of anyone courting her
lately?”
Sheets shrugged. “I doubt it. Mrs.
Hinshaw had a lot of spirit and she was
a handsome woman, but I can’t picture
38
ae ES 5 me
» 25
5 een
*
3
¢
it. We might try to get a line on that
from the sisters.”
“That’s exactly what I’m going to
do now,” declared Price. “Suppose you
look that trunk over. The killer un-
questionably was hunting for something
in it. And see if anything else was dis-
turbed in the house.”
Price hurried to the home on Eleventh
Street where the widow's sisters lived
with their elderly mother, Mrs. R. B.
Miller.
The 92-year-old mother was more
composed than the daughters. Maude
and Hattie both broke into sobs when
the Chief asked if they had any idea who
might have murdered their sister. Mrs.
Miller had to answer.
“Chief,” she said, “I’ve heard a lot of
talk that Beulah kept ten thousand dol-
lars in cash in her home. That was
nonsense; Beulah kept her money in a
bank like most sensible people. But all
»
that talk might have been what killed
my daughter.”
The Chief realized it was entirely
possible that a thief, aroused by the
whispers of a lonely widow hoarding
such a large sum of money, was re-
sponsible for the vicious slaying.
“But we know Mrs. Hinshaw was un-
usually careful about letting anyone
in,” reminded Price. “There is no evi-
dence of a break-in. We were thinking
that she may have had a caller. Do
you know anyone who might have
visited her Sunday evening?”
One of .the sisters, Maude, replied.
“I was there from half-past eight until
about nine. I would have stayed longer
but a storm was blowing up and I
thought I’d better get home.”
“Then you were home when the storm
started?”
' Pg And Beulah was alone when I
eft.”
Price nodded. ‘Tell me, did Beulah
have any gentleman callers lately?”
The women were startled at even the
suggestion and positive that Beulah’s
interests had been confined to her work,
her club activities and her family.
Knowing little more than he had be-
fore, Price returned to the murder
scene. Sergeants Ed Weisner and
Clarence—Dusty—Cook had arrived
‘accompanied by Herman W. Zimmer-
man, city manager and a former agent
of the State Bureau of Investigation.
Weisner and Cook were in the rear
yard.
“They've found several things that
indicate ‘the killing took place. out
there,” Zimmerman declared.
These were a broken pair of spec-
tacles, clothing and a bloodstain in a
beaten-down patch of grass.
“How about inside the house?” Price
queried.
A preliminary search for clues had
been unproductive. “The killer went
through two trunks and a dresser,”
Zimmerman declared. “Sheets says he
knows the victim’s husband owned a
thirty-eight Smith and Wesson revolver
and a gold Hamilton watch. We
-didn’t find either one.”
THE Chief hurried to the back yard
where the two sergeants showed him
the bloodstain in the grass.
“That helps to establish the fact that
she was out in the yard after the rain-
storm,” Price said. ‘What was she do-
ing out here that late? The storm
didn’t end until after nine.”
“One of the neighbors says she al-
hee
Uy
ee eS
ee yp * ‘
OK
ways went out to pick up the pears that
fell from the tree,” put in Cook. “May-
be after the storm she came out know-
ing that the wind had knocked a lot of
’em down.”
Sheets returned soon. The question-
ing of several neighbors had been bar-
ren of any real leads. No one had heard
any screams or seen anything unusual
on the Sunday evening .of death. No
one knew anything about the gun or
watch Hinshaw had owned.
“Let’s hope the killer took ’em,” de-
clared Sheets.
No identifying numbers were avail-
able, but a brief description of the items
was teletyped to police departments in
the near-by cities of Greensboro, Char-
lotte, High Point and Winston-Salem.
Meanwhile, Chief Price began a
round-up of suspected burglars. A
team of officers was assigned to. ques-
tion the few shady characters in this
city of 13,000 to see if anyone had ex-
pressed interest in the gossip that the
Widow Hinshaw kept $10,000 in cash in
her home.
With the accumulated facts now
pointing to robbery, the investigators
bore down hard in this direction.
THEN. shortly before noon, they were
twisted back to the vengeance
theory by the discovery of two bizarre
clues.
One was a note scrawled in pencil on
the back of an advertising coupon and
reading:
“Keep out of my bisness. I don’t
bother you none. If you see me again
you keep your mouth shut.” This had
avec found in a china bowl on a kitchen
shelf.
The other strange clue was the print
of a bare foot, in the back yard, point-
ing toward the wooden wall of Holt-
Moffitt Field where the local baseball
team, the Lexington Indians, played
their home games. The left-field wall
of the sprawling stadium was approxi-
mately fifteen feet from the yard of the
murder bungalow.
Zimmerman and SBI Agent Louis
Williams made a plaster cast of the
foot-print, while other investigators
tried to trace the advertising coupon.
A short time later Weisner and Of-
ficer Kimbrell came upon another im-
portant find. This was the clear trail
of tires in a dirt ldne near the back
yard. Apparently some vehicle had
been parked close to Mrs. Hinshaw’s
home.
Chief Price was summoned.
ee ee
me
MNUMAIN, wO at |,
Mrs. Hinshaw locked the door to this home even when she br
ndrew, black,
(Davidson)
A
poyx,
6/6/1952,
ANAT
ought the newspaper from the porch. At right, the back steps, where Sgt. Weisner found an earring
But Why a Barefoot Killer?
No One Would Drive a Truck in His Bare Feet Through That Storm—No One
But the Man Who Killed Beulah Hinshaw in Lexington, N. C. Who? Why?
o’clock on the sun-splashed morn-
ing of August 13, the hysterical
summons reached the dispatcher at Po-
lice Headquarters in Lexington, North
Carolina:
“Send the police—Beulah has been
murdered!”
After a few calming words, the dis-
patcher learned that Beulah was none
other than Beulah Hinshaw, a middle-
aged widow and one of the town’s best-
known residents because of her civic
activities and church work.
Within a few seconds Chief Vernon
G. Price had been advised. A short,
powerful man, he plowed out of his of-
fice, bellowed for Sergeant Lester C.
Sheets and Officer Jim Kimbrell, then
steamed up the long corridor of the
Municipal Building, outside and to a
waiting police car.
The Chief didn’t have to ask for the
address of the victim; he knew it was on
South Main, at the edge of town. When
he screeched to a stop in front of the
white bungalow, shaded from the sun
by several trees, a crowd of spectators
already had gathered.
“Get ’em back, across the street! I
don’t want anybody on that lawn,” the
Chief ordered Kimbrell as the three
swung out of the car.
An ashen-faced woman who said she
was Mrs. Ethel Harrison, a neighbor,
told the Chief, “The front door is
locked; you better come around to the
— That's how we got in and found
er,” “
i Wordlessly, Price and Sheets followed
er.
At the rear, on one of the wooden
Je a few minutes before nine
steps leading to the rear entrance, Ser-
geant Sheets spotted a gold earring.
Even with the back door partially
open, it was dark in the hall. But there
was enough light to see an open trunk,
papers strewn on the floor, pressed and
faded flowers, bundles of documents
tied in rubber bands. _.-
And in the middle of the disorder was
a bulky object. wrapped in a pink
chenille spread.
“She’s in that—Maude thought it was
the laundry,” whispered Mrs. Harrison
from the doorway.
Sergeant Sheets pulled back the pink
spread. Not very far. Just enough to
see the lifeless body, an ugly, red slash
over the heart and dark bruises cover-
ing the woman’s neck and chest.
“It’s Mrs. Hinshaw, all right,” he told
the Chief huskily. ‘‘And she’s been
dead for a spell. I’d say several hours.”
A CALL was put in for the coroner
while Chief Price busied himself
trying to find out what had happened.
For one thing, he learned that the
Maude mentioned by Mrs. Harrison was
Maude Miller, a sister of the victim.
The fact that the victim, who lived
alone in the seven-room home, had not
lain there undiscovered for several days
had been due to Miss Miller’s knowledge
of her sister’s character. o
“You see,” explained the neighbor,
“ever since her husband died, Beulah
took her laundry every Monday morn-
ing to her mother’s home. There she
and Maude and Hattie, her other sister,
would do all the wash together.”
Beulah hadn’t missed a Monday for
nearly five years, and on this morning,
when Beulah failed to show up, Maude
was worried.
“She came over,” continued Mrs.
Harrison, “and asked me if I had seen
Beulah. I hadn't so we went over and
knocked but no one answered. The
back door was closed but unlocked and
we walked in and I saw the bundle on
the floor. I said, ‘Maude, there’s her
laundry, she must be around,’ I stooped
over it and then I saw some strands of
hair. I looked in the spread and saw
this white arm. Then I screamed. I
ran and told Mrs. Fred Disher to call
the police.”
“How did Mrs. Disher know she had
been murdered?” asked Price.
“A woman doesn’t wrap herself up
By Richard Cornwall
Special Investigator for
ACTUAL DETECTIVE STORIES
like that to~die peacefully,” retorted
Mrs. Harrison. “I might have been the
one to say it was murder.”
The fact that the back door had been
unlocked became the first in a series of
contradictions that soon confronted the
Chief. Although many residents of
small towns have an abiding faith in
their fellow-men, and leave doors and
windows unlocked during the entire
Summer, Mrs. Hinshaw never had been
so trusting. Neighbors informed the
Officials that the widow had been un-
commonly cautious. She always locked
the front door behind her, even when
she went out for the daily newspaper.
She followed the same procedure when-
ever she went into the back yard.
How, then, had the killer gained en-
trance?
A quick survey of the premises re-
vealed no signs of broken windows or
forced locks. Apparently the widow had
let the slayer enter, either because she
recognized him or because she had been
duped by some plausible excuse.
Doctor David Plummer, the Coroner
for Davidson County, arrived. He soon
reported that the woman had been
dead between ten and twelve hours.
“That would make it between half-
past eight and half-past ten last night,”
mused Chief Price. “Just about the
time a caller might come visiting on a
Sunday evening. Anything else, Doc?”
Nothing, reported the Coroner, ex-
cept that Mrs. Hinshaw had been sub-
jected to a terrific physical beating by
her slayer, after being stabbed in the
chest. “Some of her ribs have been
broken. Your killer must be a mighty
strong man.” ’
37
bs,
rata Oukies Coldnep 4
Bo slix: Kowe’s broths:
¥;
ing here the Lik ang
mm Asheyilic ta Vasil heen
Cabe Lowe <They ine
there to. Rusheriordion ‘igs Hedy. ie
ne family ‘of David Link Dpyiview. Bri
nat ote Colonel Land ine Chet Ae
se former college} :
vom Charlowe the F ° yig Nis
pere -anid thes rd lor air ey
ater Ceanty! Gy “visit ) 357 | Weste
‘Dan Tayiar both ' reli:
bere ALT ith F500 555
gyi, then Ploada, bas eg
sip Ue Ney Oren: ty
on [Mt inept
te ay¥ Witty reratves,
< he iahares: Tah.
1 an d
Ag to
votional ~
®
3 ‘ Wahine Senuor May.
«| DOK CEYSC) Nees 4 possibilit: that
e n
‘in the cold wated 4
an Egyptian: Utient of.
é Fisvotians ‘stick. ry Vv ER nee ats:
eener——} t-” Hassan} ight, hi f Vv rtinient |
who won. a simifar ‘Truman, w: Cs with It be Fata t
Paied El Araby and r ’
id——were oh bs: it thai ' round. orig 1 COOLET, which,
nchandy Spaced jed 10: polit db: nal” } Japanese peice the “watcher
SAL the fp
architect,-U-S,
hn Foster Dates, }:
apy Russian |
k the: peace confe
#Nia an | treaty and ing that it
wrcery fae niga tay i el not cea nee Lise
Obert" Jones: sc aoe i
-
ROOK, John W., white, leth. inj., NCSP (Wake) 9-19-1986
EXECUTION ALERT!
ohn Rook is scheduled to be executed in
Raleigh, NC on February 14.
ohn Rook was sentenced to death in Wake county in 1980
for the brutal murder of Dorothea Dix nurse, Ann Marie
Roche. Perhaps Ms. Roche’s murder might have been
prevented had the State done something about the severe
abuse and neglect it identified — but did not treat — when John
Rook was a child.
It is clear that John Rook suffered from severe emotional dis-
turbance as a child and adolescent. The abusive conditions of
his childhood years were, in fact, among the most aggravated
seen by all the mental health professionals who testified at his
appellate hearing. Because of these conditions, he was taken
away from his family at an early age and placed by the State
in a variety of residential settings — foster home, orphanage,
anu training school — where he received little or no treatment.
John Rook grew up and was a ward of the State during the
sixties and seventies (he was arrested at age 21). During those
years no treatment programs were provided for abused and
neglected children who demonstrated assaultive behavior. In
1980, the State recognized the existence of a class of children
— Willie M. children — for whom the state was not providing
adequate treatment. These children have mental or neurologi-
cal handicaps accompanied by violent or assaultive behavior. The
state now provides a substantial range of treatment programs
for such children where none existed previously. If John Rook
were gowing up today, he would clearly be identified — and treat-
ed — as a Willie M. child. Had these services been available dur-
ing John Rook’s childhood, Ann Marie Roche's death mighthave
been prevented.
Could these services have helped alter the assaultive behavior
John Rook exhibited as a child and adolescent? Experts at the
Megiiate hearing pointed to several instances in John Rook’s
mit indicated his amenability to treatment. They noted that
ildren like he was canbe treated and can be helped. One doc-
tor testified that treatment “could be very helpful, if not in some
cases preventive.” In short, with treatment John Rook would have
had a chance. Without it, he had none.
The State and its agencies were well-aware that John Rook
was at risk as a child. All the “red flags” are in the Department
of Social Service records: physical abuse, neglected and extremely
deprived home environment, and borderline intelligence and
retarded school progress. The Department of Social Service so-
cial worker noted that mental health evaluation and interven-
tion were needed back in 1968-69. No help was available. John
Rook’s grade school teachers, junior high school teacher, social
workers and training school teachers all noted that he needed
help and intervention. None was provided.
John Rook is the classic example of what happens when the
State fails in its responsibilities to neglected and abused chil-
dren. Since the State bears substantial responsibilitiy for how
John Rook turned out, the State should not be allowed to put
him to death. North Carolina now provides serves for Willie M.
children. It should continue in the direction of prevention and
treatment rather than in the direction of killing the adults it
identified, but failed to treat as children.
Activities Planned Across the State
By North Carolinians Against the Death Penalty
Asheville: A vigil will be held February 13 at 7:00 p.m. at All
Souls Episcopal Church. For further information call
704-253-1136
Charlotte: A Prayer Service will be held February 18 at St. Mar-
tin’s Episcopal, East 7th St. at 5:45 p.m. The group will then
march to the courthouse at 6:10 p.m. where various members
will maintain a constant vigil until 2:00 a.m. Informational
leaflets have been distributed at Trade and Tryon each Thurs-
day for three weeks prior to the execution.
Winston-Salem: A vigil will be held. Call Kay Vives at (919)
725-9166 for further information.
Raleigh-Durham-Chapel Hill: An educational forum will be
held at 7:30 p.m., February 13, in Raleigh, at Pullem Memori-
al Church, 1801 Hillsboro St. A religious service will follow
the forum.
A vigil will begin at 10 p.m. at Central Prison, 1300 Western
Blvd., and continue until 2:00 a.m., the scheduled time of ex-
ecution.
Members of NCADP have distributed information about the
death penalty from 12:00-1:00 at the Wake County Court-
house every Thursday for a month prior to the execution.
These events will not take place if a stay of execution is granted.
CALL OR WRITE GOVERNOR MARTIN
TO OPPOSE THE EXECUTION
Toll Free Hotline Phone Number: 1-800-662-7 952
. Address: Governor James Martin, 116 W. Jones St., Raleigh, NC 27611
Along the stadium wall the tire-tracks led
“That rainstorm was sure a big help,”
he declared.
“What do you mean?” Kimbrell
asked.
“If the foot-print and the tire track
were made by the killer, then he came
here before the rain, hid somewhere
until Maude Miller left, and went away
after the storm. He would have made a
double trail, both going and coming, if
he got here when the rain was over.”
After Zimmerman and Williams had
finished with the foot-print, they hur-
ried over and made casts of the tire-
tracks.
“Those angle stripes,” pointed out
Weisner, “look like they’re from a
heavy-duty tire. Maybe it was a truck.”
Kimbrell sighed. “A barefoot killer
in a truck! That doesn’t make sense.
Why would he be barefoot around here
anyway with all these rocks and broken
bottles from the stadium?”
“Ordinarily I’d say it might be a kid,”
put in Williams. “But no boy killed
Mrs. Hinshaw.”
Since the area had yielded such
significant clues, Price now ordered
every available officer to search the
— field and the area. surrounding
t
In a weed-covered field on the north
side of the stadium was the sagging
trailer home of Wiley Perkins, a recluse
who made his living by doing odd jobs.
As the investigators went by he stood
in the doorway of the trailer, watching
the search and blinking watery eyes
against the glaring sun.
He spotted one of the officers he
knew. “Hey, do you think you'll ever
get that murderer?” he called.
The officer waved back and went on
— his task. He forgot about Per-
ns. ‘
Until an hour later. Then detectives
discovered that the advertising coupon,
part of a local jewelry firm’s promotion
venture, had been distributed around
town by Perkins. .
He was questioned immediately.
H E DENIED strenuously that he knew
anything about the slaying. “I
never so much as killed a mouse,” he
declared. “You're just jumpin’ on me
‘cause I asked about the murderer.
Anybody would be that curious.”
But he admitted that he’d distributed
the coupons.
And he also admitted that he’d writ-
ten the threatening note on the back of
one.
“Beulah was always watchin’ who’d
to the bare foot-print, right, and finally
to the cut-away boot against shed, far right
‘ roared.
sneak into the ball games,” he said.
“She saw me do it once and said she
was goin’ to report me. So I wrote that
note. But I didn’t mean nothin’ by it.”
“Nothing except you worked up a lot
of hate for her, didn’t you, Wiley?” de-
clared Price. “And the person who
killed her sure hated her a lot.”
“I didn’t kill nobody!” Perkins
“You got the wrong man! I
swear on the Bible I didn’t do it!”
Two things soon worked in favor of
Perkins.
One, a search of his trailer failed to
reveal any traces of mud, indicating
that he had not gone out until the
morning after the rainstorm. Two, his
foot failed by an inch and a half to
match the plaster cast of the foot-print
found near the murder scene. More-
over, he did not have access to either a
truck or a car.
So, despite the scrawled warning he
half-heartedly admitted sending, and
the fact that he lived close enough to
the widow to know many of her habits,
Perkins was released. He ambled up the
long hall of the Municipal Building
protesting his innocence to anyone who
would listen.
Tre youths suspected of burglary had
been seen at a filling-station near
the Hinshaw home within 30 minutes
of the estimated hour of death—be-
tween nine and ten p. m. But no evi-
dence could be found to link them closer
to the slaying.
Several brawny juveniles were ques-
tioned, with negative results.
By late evening Price was wonder-
ing grimly if the city’s crime record
were about to be washed down the
drain. For 24 years Lexington has been
free of any unsolved murders. And
now, despite a wealth of clues, relent-
less work and the help of two experts,
Zimmerman and Williams, they were
stumped.
Then, that evening, came a positive
identification of the tire-tracks. Tire
men declared that the size was 7.50-17,
ordinarily used by trucks, and that the
tire was manufactured by Firestone.
The sharply angled marks of one
were from a model known as Mud-Grip,
while the other was a regular tread.
ba
Officers immediately went to work
canvassing automobile-supply houses
and tire dealers.
Meanwhile, Sergeant Sheets had been
ringing the door-bells of all homes
within a five-block radius of the Hin-
shaw bungalow. A number of women,
still fearful, talked to him from behind
locked screen doors. No one could tell
him anything of interest. He was about
to give the job up when Mrs. Effie Har-
dister, a widow who lived on the west
side of Holt-Moffitt Field, peered from
behind a window and called to him:
“You wait right there, Mister Sheets,
I've got something to tell you.”
She came to the door and beckoned
him into her cool living-room, “I heard
about those tire-tracks they found over’
near the ball park,” she said. “And
that’s what made me. remember it.
Around eleven o’clock I saw a truck
come tearing out of the lane, the one
that goes up beside the park. I was sit-
ting on the porch with a friend of mine
and he was ready to leave when we
saw it.” She said that she had not
noticed who was driving it, nor did she
know the make of the truck. Her friend
was Johh Cross.
The Sergeant made a beeline for
Cross’ home.
He, too, remembered the truck, but
he hadn’t paid a great deal of attention.
However, a friend of his, Fred Fritts,
had seen it, too.
Fritts also was found easily. He told
Sheets that he“lived on the corner
of State Street and Robbins Circle, ap-
proximately two squares from the mur-
der scene. “I didn’t report it because
I didn’t think it had anything to do
with Beulah Hinshaw’s killing,” he said.
“But last night, maybe a little after
dark, I saw a truck go by my house
three times. It was going slow edch
time.”
“Who was driving it?” asked Sheets
tensely.
Fritts shook his head. “I don’t know.
But the truck was one of those like the
kind that deliver ice.” No, he couldn’t
even guess at the make, although he
believed the body was painted black.
SHEETS looked up Agent Williams,
who was directing the hunt for pur-
chasers of Mud-Grip tires. :
“We've already got a dozen firms that
use those tires,” Williams said.
“Do you have one that delivers ice?”
Williams frowned, then thumbed a
single page of his notebook. “Yeah,
here it is—Lexington Coal and Ice Com-
pany.”
This was a prominent firm, operated
by C. C. Eanes, a well liked and highly
respected businessman.
They looked him up.
“We don’t make deliveries on Sun-
40
day and I’m sure none of our trucks
was in that neighborhood late in the
evening.”
Could it have been a truck belong-
ing to some other ice company? Or was
Fred Fritts mistaken when he thought
that the truck which had passed his
house three times had been used for
delivering ice?
Eanes, questioned further, reported
that normally only two men worked at
the plant on Sundays. These were
Charles J. Smith, an engineer, and John
Roman, the night manager, who pulled
the waist-high blocks of ice from freez-
ing-stalls and saw that they were
ready for distribution on Monday morn-
ing. Both men were reputable citizens
and never had been involved in trouble
of any description. Smith was a taci-
turn, sometimes blunt-spoken person
with a long record of faithful service to
the company, Roman a 32-year-old
World War II veteran, married, with
four children.
An inspection of all trucks owned by
the company soon revealed that only
one, Truck No. Eleven, carried both the
Mud-Grip and regular tires.
However, the driver of this heatedly
denied that he had used.it on the mur-
der night. “I didn’t get back from
Greensboro, where I was visiting some
of my folks, until after midnight, and
I can prove it.”
Which he did, easily enough. The
other ice-company employes said they
had not used the truck. And this lead,
too, apparently had died.
A grim, sweat-stained group of in-
vestigators met in Price’s office shortly
after nine o’clock that night. Outside,
a crowd estimated at well over 2,000
persons milled around the building.
Although the city and state investi-
gatots had compiled a stack of reports,
nothing seemed to point a clear path.
“Unquestionably the foot-print is an
important clue, but how do you make
it pay off?” asked Price. “Does any-
body have any ideas?”
There were some, but nothing that
held out any great hope. At the end
they decided that they could do little
else except keep pressing the tire and
foot-print clues.
Price came out to meet clamoring re-
porters and told them: ‘No arrests, no
suspects, and a fair amount of clues.
We don’t know when we'll be able to
make an arrest.”
He hurried off to Doctor Plummer'’s
office, where an autopsy report awaited.
T= report, however, failed to indicate
anything that might be of help.
Death was due to shock brought on
by the woman’s furious beating and
the stab wound over her heart. Four
ribs had been crushed either by a
Mrs. Hinshaw was known and
loved throughout Lexington
Sergeant said. ‘Maybe the killer set
his boots on that bench and one of 'em
fell behind it, In the dark he couldn't
find it so he took off in his bare feet.”
“It could be you've got something!”
declared Kimbrell,
The boot was rushed to Headquar-
ters, where Price and Zimmerman were
discussing the case,
“That does it,” Zimmerman. sald
quietly.
“Does what?” Weisner asked.
“Yesterday I saw a man wearing a
pair of boots cut off at the leg exactly
like those. That man was John Roman,
the fellow who works at the Lexington
Ice Company.”
A CARLOAD of investigators sped to
the plant on the east side of the
city. Roman, they learned, had worked
the night shift and was at home. Weis-
ner, Kimbrell and Officer Payne were
sent after him and Price and Zimmer-
man questioned Charles Smith again.
Once more Smith said he was sure
This is the Mud-Grip tire that left its distinctive print in
the murder yard and carried some evidence away with it
maniacal embrace or by repeated blows.
The report also placed the time of
death as between eleven p. m. and one
a.m.
The following morning’s progress
matched the torpid heat of the day.
More witnesses were questioned, more
tire dealers canvassed, with negative
results,
Back at the murder scene, Weisner
and Kimbrell were carrying out an-
other careful search of the area on the
possibility that something had been
overlooked.
Finally, in.the thick grass between a
wooden bench and a shed, Weisner
spied a dark object. He picked it up.
It was a man’s knee-length black boot,
the front half of the part normally en-
casing the leg cut off. He shouted to
Kimbrell.
“I found it behind the bench,” the
no one had used Truck Eleven the night
of the murder, at least until he had
gone off duty at 9:15 p. m. He wasn’t
positive that the truck had been in the
yard all night but he hadn’t seen any-
one take it and it was there the next
morning.
“Was John Roman around Sunday
night when you left?” Price asked. .
“No, Sir, he took off about seven
when he said he got a call from his wife.
She was sick and he thought he might
have to carry her to the hospital. He
didn’t come back by nine so I telephoned
G. W. Leonard, our other engineer, and
he drove down here to take over.”
“Could Roman have taken that truck
at seven?” f
“Well, he could of,” Smith replied
slowly. “But I sure didn’t see him.”
Leonard. promptly interviewed. said
(Continued on Page 62)
and moved out for “a hotel down the
street,”
For the first time the officers had a
feeling that they were getting some-
where, The week that had passed since
the slaying had given the suspects
ample time to travel, but no matter
where they had gone they must have
left some trail. To find this, the detec-
tives moved down South State Street,
visiting all hotels. They found their
first trace at Twenty-Sixth and South
State Streets. Marcus and the two wo-
men had been seen in the place and
were believed to be living there.
When Captain McAvoy heard this he
decided to raid the place immediately.
He moved in with Eckel, Buckley, Nev-
ell, Daly and Connelley. The raid was
futile; all three had fled.
Awed by the sudden official visit, the
hotel manager talked freely. Marcus
and the women had rented two rooms
in the hotel early Monday. morning.
Marcus told the manager that no mat-
ter who should be looking for him, he
wasn’t in. The Thursday after the kill-
ing, the manager found the room
empty. The tenants had gone without
the courtesy of checking out,’ even
though they had paid their rent for
two more days.
‘No one in the hotel had seen them
leave, or had any idea where they
might be found. In fact, the only in-
formation the police could get was that
Marcus had been employed as a kitchen
helper.
Officers visited the restaurant work-
ers’ union; Marcus wasn't a member,
They called personnel managers of all
large Loop restaurants. Only one had
a listing on Marcus; it was six months
old and didn’t check out. On the long
chance that the youth was older than
seventeen and had signed up for the
draft, the detectives called Selective
Service headquarters. Marcus wasn’t
registered.
Every police station in Chicago was
advised that the three were wanted;.
every police officer was given their de-
scriptions. If they were still in town
they couldn’t avoid capture.
And almost as a reward for their
hard work, Eckel and Buckley finally
. Spotted a slender young woman wear-
ing a short gray coat with a wide gray
belt walking down the street and enter-
ing a hotel.
The detectives made it across the
street in long strides'and dashed into
the lobby of the hotel. Dorothy was
nowhere in sight. The sleepy-eyed
clerk, surprised at the sudden burst of
activity, gave the officers her room
number.
Less than a minute later Eckel and
Buckley were in the room, facing two
surprised women, Dorothy Batts and
Ethel Waits.
“Come on, both of you,” Buckley or-
dered. “Wé want to talk to you at the
Station.”
In the Captain’s big, drab office, Mc-
Avoy and the five detectives who had
worked the case settled down to listen
lo what the women had to say.
Ethel Waits consumed a lot of time
and words to insist that she knew noth-
ing about that “terrible killing”.
So did Dorothy Batts. But she weak-
ened when she learned what the offi-
cers had heard about her, She admitted
going to Sottosanto’s place Sunday
night to do a bit of work and collect
some money, Captain McAvoy claimed,
Marcus accompanying her, and she said
the two of them had spent only a little
time with the landlotd and then left.
They had not harmed Sottosanto in any
way, she insisted.
That was as much as Dorothy Batts
would admit. |
WHILE she was being questioned
James Marcus walked into the
station. He wanted to know, why his
girl friend, Ethel Waits, Had been
locked up.
This earned him a quick, escorted
trip into McAvoy’s office. Thére he had
an opportunity to answer questions.
Captain McAvoy said the six-foot
180-pounder told this story: '
. Dorothy Batts and Marcus were
convinced that Sottosanto had a siz-
able amount of money hidden in his
apartment. Marcus and Dorothy went
to his apartment while Ethel Waits
-waited in her hotel room, When they
reached the second floor of the apart-
ment building, Dorothy knocked on the
victim’s door, Sottosanto opened the
door and the two rushed him, Marcus
thudded the sap down heavily on the
landlord’s head two or three times. He
stagrered, crumpled to the floor and
luy still, blood trickling from his
wounds, ny
Despite a frenzied search, they could
find no money.
Dorothy Batts, too, then admitted
the robbery-motivated “attack, Captain
McAvoy said. But Ethel Waits’ story
‘was the same. The trouble was none of
her doing; she knew nothing about it.
The officers made an intensive search
for the death weapon but found no
trace of it.
At an inquest on January 24, Marcus
testified, relating the story just as he
told it to the police. Dorothy Batts re-
fused to testify.
The case was presented to the Cook
County grand jury, which returned in-
dictments against the trio on February
14. Marcus and Dorothy Batts were
indicted for murder, Ethel Waits as an
accessory.
At their trial on July 14 Marcus was
convicted, sentenced to 20 years; Doro-
thy Batts was convicted also, sen-
tenced to sixteen years. Ethel Waits
was found not guilty, exonerated of
all charges.
Shirley June Worth never was found.
The names Henry Condor, Helen
Felkins and Shirley June. Worth as
used in this story are fictitious to pro-
tect the identities of innocent persons.
But Why a Barefoot Killer? continued trom Page 40) orsicysteeatt Fit oon
that Smith’s story was correct. “I
stayed at the plant until half-past ten
‘and John still wasn’t back so I phoned
Mister Eanes and he said I could go
home.”
Eanes was the next one to be ques-
tioned.
“You know,” he declared, “there was
something funny going on at that. I
got to the plant a little after six Mon-
day morning and John Roman was
still pulling ice. \
“Sunday night we usually cut only
thirty-four blocks of ice and it
shouldn’t take more than two hours at
the most. So John couldn’t have started
pid it out before four in the morn-
ng.
“Besides that,-he was going in and
Pad of the freezing-stalls in his bare
eet.”
“Does Roman have access to the
truck keys?” asked Zimmerman.
“Not normally, But he did have ac-
cess to the coal-storage room where
some of the extra truck keys are kept.”
Less than fifteen minutes later, Price
and Zimmerman were confronting
Roman, a_broad-shouldered, dark-
haired man with a well-trimmed mus-
tache. He appeared calm, but he
drummed his long fingers constantly on
his chair-arm in a methodical beat, as
if he were impatiently exasperated.
No, he asserted to the first question,
he didn’t know Beulah Hinshaw. He
thought that she might have been one
of the company’s customers, but he
wasn’t sure. Yes. he did own a pair of
Murder for Parole (Continued from Page 33) OFFICI
“And he admitted having Bedard’s
knife for a while and then said he
thought someone stole it from him,”
Swoverland recalled.
“Bud Smith had that knife later,”
Prin said, “and then Salva came along
and claimed it. I don’t know whether
it was Bedard’s or Salva’s.”
WHILE they were discussing the case
Detective Joseph Liebherr of the.
State Police Post at Ypsilanti came
into the office.
62
cut-off boots and he’d had another pair
but he’d thrown them away long ago.
Where? He didn’t exactly recall.
“Where were you between seven
o’clock Sunday and, say, midnight?”
asked Price. .
“I was at work until I got a call to
go home because my wife was sick. I
went home and didn’t get back to the
plant until after eleven.”
Roman’s statement was similar to
that related by Charles Smith. If his
alibi held up, then he could not possi-
bly have murdered the widow.
Were the officers wrong about the
boots? Were they suspecting an inno-
cent man?
“Is your wife at home?” Zimmerman
asked.
Roman frowned. “My wife is sick. I
wish you wouldn’t bother her.”
Zimmerman ‘arose. “Sure. But a
couple of questions won’t hurt.”
Price, Zimmerman and Williams
drove to the Roman home on East Third
Street—a section of ‘modest frame
houses. .A petite, attractive woman an-
Swered their knock. She opened the
screen door wordlessly when they an-
nounced their mission.
The interview began awkwardly. Mrs.
Roman stood stonily in the middle of
the living-room’ floor, her hands
clenched together, her gray eyes star-
ing at a window. She made no response
to the quiet questions of Price.
Then, with dramatic suddenness, she
began sobbing. She shook her head.
“I can’t lie, even for John! He didn’t
“Captain Seiler told me to come over
and see if I could be of any assistance,”
he announced.
Swoverland quickly outlined what
they had learned so far.
“Does anybody know where the wire
came from that was used to tie the con-
crete block to the body?” Liebherr
asked.
“I didn’t pay much attention to it,”
Prin said. “Do you what kind of wire
it was?”
“I got a piece of it from the funeral
come home until one o’clock in the
morning! You—you don’t know what
I’ve gone through!”
. She broke down, then after a moment
went on: “He lied to you about that
telephone call. I wasn’t sick Sunday.
I woke up when he came in and he was
wet all over, like he’d been out in the
storm. When I asked him what hap-
pened, he said he got wet because the
pipes at the plant had run over. He
left as soon as he had changed. Then
when I heard they found a bare foot-
print. . .”
Once more the woman broke into
wracking sobs.
But still Roman would not change
his story. “I tell you, my wife is a sick
woman. She doesn’t know what she’s
saying,” he declared.
Even when Price placed the plaster
cast beneath his bare foot and the two
meshed perfectly, he refused to break.
Price sent every available man on an
intensive hunt for more evidence.
They found it. In a can behind an
overfiow pipe at the rear of the ice
plant, officers discovered a boot that
matched the one found in Mrs. Hin-
shaw’s yard. In a loft above the coal
warehouse, to which Roman had the
only key, they found the nickel-plated
Smith and Wesson revolver which had
belonged to Herbert Hinshaw. From
the Mud-Grip tire on Truck Eleven they
took bits of dirt identical with the red
clay of the baseball park. And at Ro-
man’s home, in a cabinet drawer, they
found a knife with tiny flecks of blood
home,” Liebherr replied. “It’s the kind
usually used for interior wiring.”
“We have some that looks about like
that in the electrical shop,” Prin said.
“Who could get at it?”
“Almost anyone if he really wanted
to, I suppose.”
“Got anyone else’ to question?”
Swoverland asked.
“I'd like for you to talk to Joe Tob-
ruk,” Prin said. “He’s been nosing
around a lot and seems very inter- -
ested in the investigation.”
still clinging to the spot where the
blade entered the handle.
“It’s nothing but weak circumstantial
evidence,” Roman declared.
On February 1, 1952, after a dramatic
trial that attracted capacity throngs
for four days running, a jury found
Roman guilty of the widow’s murder
and decreed his punishment as death in
the State’s gas chamber at Raleigh.
THE execution date was set for March
21, then was postponed after an
appeal by his attorneys.
On May 22, after careful considera--
tion of his appeal, the North Carolina
Supreme Court upheld the Davidson
County trial court verdict, declaring
that the evidence, despite its circum-
stantial nature, was as “clear as the
proverbial bell, and points unerringly
to the guilt of John Roman.”
Sharply at ten a. m. on June 6, 1952,
the convicted killer was led into the
tiny gas chamber of Central Prison.
At 10:05 a guard snatched the cover
off a pan of sulphuric acid, then raced
to slam a heavy door shut behind him.
Deadly cyanide pellets slid into the
acid. Roman strained at the straps as
the yellowish fumes spewed upward.
Nine minutes later, at 10:14 a. m., he
was pronounced dead.
To protect the identity of a person
proved innocent of any guilt in the
death of Beulah Hinshaw, the name of
Wiley Perkins in this story is a pseu-
donym.,
Read It First In
AL DETECTIVE STORIES
Tobruk, summoned by the Superin-
tendent, swaggered into the office. He
was stocky, with powerful arms and
shoulders.
wy OU want I should tell you who
killed Tony?” he asked. “Well,
you got to find out for yourself, see? I
don’t know.”
“What did you have against Tony?” '
Swoverland asked.
“Nothing. The punk didn’t affect
me one way or the other, see? I got
EXEGUTIONALERT ==
There are 4 death Warrants pending in FLORIDA.
TUESDAY OCTOBER 7 7:00 a.m. EDT ELECTRIC CHAIR
HENRY PERRY SIRECI JR. and ROY ALLEN STEWART both have execution dates for Oct. 7.
They are white. Sireci was Sentenced in 1976 for a murder that took place during
the course of a robbery in Orlando. Stewart was sentenced in 1979 for the rape~murder
of an elderly woman in Dade County. These are Second warrants for both cases,
TUESDAY OCTOBER 21 7:00 a.m. EDT ELECTRIC CHAIR
oe
JOHNNY COPELAND, a 29 year old black man, was sentenced in 1976 for the rape-murder
of a convenience Store clerk in Leon County. He had two co-defendants, one of whom
is also on Death Row. This is the first warrant Signed on this case,
WILLIE DARDEN is now facing his fifth death warrant, with an execution date set for
Oct. 21. He is a 53 year old black man who has been on Death Row since 1974,
Willie Darden has always maintained that he was innocent of the murder.
There has been much doubt that he received a fair trial; jurors were improperly
excludedj there was questionable eyewitness identification; the prosecutor's behavior
was racist and inflammatory (according to him, Willie Darden was "an animal" who
should be "blown away") ;the defense attorney failed to present mitigating material
during the Sentencing phase; and of course, in Florida, there is also the issue that
a black man convicted of killing a white person is 37 times more likely to receive
the death sentence than if the victim were black.
The issue of discrimination based of race of victim is going to be argued before
the U.S. Supreme Court on Oct.15 (McCLESKEY). Although the decision will not te
formally announced until a number of months later, it is feared that after the case
is heard, there may not be stays forthcoming based on that issue,
SUGGESTED ACTION:
Contact: Gov. Bob Graham
Gevernor’s Office
State Capitol
*, Tallahassee, FL 32301
© 904-488-4441 2
UPDATES: Capital Collateral Representatives: 904-487-4376
Florida Clearing House 904-222-4820 7
National Execution Alert Network: 402-474-6575
La :
As of this time, no news on the ‘status of Lawrence Buxton, black, Texas, scheduled to
be executed on Sept. 30 and Dennis Stockton, white, Virginia, scheduled to be executed
on Oct. 3,
» Donald Franklin (TX), Raymond Riles (TX) and Herbert Welcome (LA) all received Stays,
SEPTEMBER EXECUTION: Jor Rook was executed in North Carolina on Sept. 19. %
upbhere is speculation about. .why he did not receive a McCleskey Stay.-..One’theory |e we
(nis that the U.S. Supreme \@ourt has already set certain parameters \on ‘which cases bdo
_SWould be affected by the MéCleskey ruling, and his case did not meet ht criteria, “CY
: black. .
NATIONAL EXECUTION ALERT NETWORK
BOX 81455 2
coln, NE—Aas0.
eee nett A .
—
a ee ee)
Sn
- Walt Espy
PO Orawer 277
Headland, AL 26345
North Carolina rape-slayer
executed by lethal injection
RALEIGH, N.C. (UPI) —
Saying he had found “Freedom,
freedom, at last, man,” John Rook
died by lethal injection Friday for
the drunken rape-slaying of a
young nurse he spotted while driv-
ing down a street.
“T think this is a real tragedy,”
said Rook’s attorney David
Rudolf said after the 2 a.m. execu-
tion at Central Prison. “John Rook
was an abused child and the state
bears some responsibility.”
The 27-year-old Rook, his
waist-length hair in braids and a
beard hanging down to his chest,
‘wore.a Harley-Davidson T-shirt,
blue jeans and Dingo boots into
the execution chamber. —°.
He was prounounced dead at
2:11 a.m. ;
The Supreme Court refused to
postpone the execution just before
midnight, around 10 hours after
Gov. Jim Martin rejected an ap-
peal for clemency.
Rook ordered a last meal of 12
~
hot dogs “all the way,” but ate
only three of them, said Renee
McCoy, a prison spokeswoman.
His final statement was,
“Freedom, freedom, at last, man!
It’s been a good one.”
John Conway, a media witness,
said Rook was “very calm, with
very little body movement” dur-
ing the execution.
“For the most part he lay star-
ing up to the ceiling,” Conway
said. “It appeared to be very pain-
less for Mr. Rook.” .
Such was not the death of his
victim, prosecutors said at the
trial that convicted Rook in the
1980 murder of Ann Marie Roche,
a 25-year-old Raleigh nurse.
Abducted by the heavily drink-
ing Rook on a street as she walked
to her apartment, .Roche’s nude
body was found in an isolated field
the following day. She had been
raped, brutally beaten with a tire
iron, slashed with a knife, run over
by a car and left to die, authorities
Sat: %-l0-8& [as Vegas Sun : 9 SR
W8 SPOT OE genes
3%
SE SeyleT ge sr
] S42: ** 483% 2986s ie ae
eS ey
SUREwWEr 5
SPP SEI My ty
¥ f2 22S tages SY & wr hescsa ear
i rae
United Press International
_ RALEIGH, N.c. — The former
‘prosecutor who won a death sen-
tence in the
. Raleigh nurse
cal execution
vinced him
wrong./
P Sh ‘
Says the cold, clini-
of her ‘killer con-
“It struck me as too --- easy,”
Narley Cashwell, now a defense
attorney, said of John William
Rook’s Se
injection. “The kids at high schoo]
could watch this on TV,” :
\" ; Rook, 27, was executed for rap-
ing Ann Marie Roche, 25, Slashing
Cashwell, admitting “maybe
what I wanted was.a little too
much blood,” said he did not fee]
justice wags served when he
watched Rook die gently in his
sleep as a fata} dose of muscle
relaxant Stopped his heart.
“It wasn’t
death: that bothered
as the sort of cold, Clinical, sterile —
killing somebody, so
what? I don’t think the punishment
fit the crime, :
“I never could get out of my
mind all that I knew about Ann
brutal murder of a
the death penalty is
pt. 19 execution by lethal |
have in North
state shifted to
the brutality of Ann’s
Former prosecutor finds
Pkiller’s death ‘too easy’
Roche and all I knew about her
death,” he Said, adding he believes
life in prison without parole would
be a harsher Sentence and would
_,More likely serve as a deterrent to
calculated murders.
“It seems to me. we want some:
thing more than just removing
people from Society,” said Cash-
well. “It seems to me we want
rehabilitation and deterrence to be
factors,
“If we’re
death penalty
the John Rook
in North Carolina,
Case fit what we
Carolina,” he said.
“If there’s any question that I fee]
any guilt or remorse for this
(Rook’s execution), the answer is :
‘no.’ ” j ;
But Cashwell Said even if the
another means of
execution, he would still Oppose
capital punishment.
~“T don’t see any choice,” Cash-
well said. “It either will wind up
being cold, clinical and Sterile, or
it will wind up being atrocious,
and I’m not in favor of anything at
all that’s going to be atrocious.”
Rook was the third person to die
in North Carolina Since the death
penalty was reinstated in 1977,
Cashwell, an assistant district
attorney when he won the death
penalty conviction against Rook,
became a district Court: judge in
1982 and entered private practice
as a defense attorney in Septem-
rp
going to have the |
ws. io.
Jonn
Se 9
tay }
Wi
‘
Rue ae day ~-to-P6
: Page Twenty — Section A fr / 26 ne D Uy / Y Sfar
N.C. killer
| dies with |
his boots on
RALEIGH, N.C. (AP) —'A ‘man
who raped and killed a woman was ,
executed yesterday wearing West-
ern boots and a black Harley-David-
son T-shirt. ex
~ John William Rook was put to |.
death by injection at the Central
- Prison, less than a mile from where
nurse Ann Marie Roche was left to
slowly bleed to death after being
a ii Se raped, beaten, slashed and run over
[Pee AP file photos by a car on May 12, 1980.
Sey
ie P ‘John William Rook “The peacefulness, calm and dig- -
nity and decorum with which he met
his end contrasts most strongly with
‘the brutality of the crime that leads
us here today,” said Wake County
District Attorney Randolph Riley,
whose office prosecuted the case.
“She suffered in a way that he didn’t
have tosuffer.”
The U.S. Supreme Court refused
to halt the execution late Thursday
night,‘ and the ‘bearded Rook, 27,
went calmly to his death, .
Rook spent two hours earlier in E
the day with his first-grade teacher,
Sara Jenkins, 71, a regular visitor
for the past two years.
Rook's final words were: “Free-:
dom, freedom at last, man! It’s been ‘|’
a good one.” es
.
fe: , Ann Marie Roche
te
LXE
a
; Ca (C lene SH 1 butng Lr) cf. 4 des / —. TA
‘North arolina executes killer
mar The Associated Prose : ite U.S. + ppreme Court voteg
C. “4 to rejec 00k’s a al afte
confessed to raping, beating and Goy, din Martin refused to ha
Slashing a 25-year-old nurse was the execution at Centra] Prison,
executed by Injection €arly to- Rook Confessed three times to
day less than a mile from the Police that he raped, beat and
apy Where he left her to bleed to Slashed Ann Marie Roche of Ra-
S
>
B
5
> Pe)
gS
c
sh
death €lgh in 1980, the nN Over
John William 00k, 27, was ith a car and left her ina tisha
Pronounced dead at 2-1 4.m., ata State menta] Institution
Said Correction €partment It was t €xecution in
Spokeswoman Renee Mc Oy. His orth Carolina and th in
ast words w re; “Freedom, € country since Capital punish
freedom, at last, man. It’s been a. ment was reinstated in 1977 by
00d one,” the Supreme Court.
3 : _
RALEIGH, N.C. (AP): 2 man to halt the execution at Central Pris.
who Confessed to raping, beating and on.
Slashing a 25-year-old nurse was exe. R ;
. A edi et OOK confessed three times to po-
cuted by _wection ear ly F riday less lice that he Taped, beat and Slashed
John William Rook, 27. Was ‘pro- 2? I Sel
nounced dead at 2:1] a.m., said Cor- field ata state mental nstitution.
rection Department Spokeswoman It was the third €xecution in North
Renee McCoy, The Us Supreme Carolina and the 66th in the country
Court voted 5-4 to reject Rook's ap- since Capital Punishment Was rein-
Peal after Gov. Jim Martin refused state in 1977 by the Supre
SR Ae nt Bee = iday go
*.6 66th.
SPerson nationwide and the third in. | a
BaNOrth Carolina to be executed since —
pie Telnstatement of capital punish.
4 ent-in 1976, 0°" Rahihe
apararn 8
pias at 7 WE
i 2)
a = ms SS BF
a OL
ra
>
c
o
Qa
=
z
oO
Wn
oO
no}
t. 19 (AP) — A
d slashed a
<=
=
=
®
3
iS)
=
<
>
3
Len}
2
®
2.
$e]
5
-lrefused to hear an appeal based on
,{race.
John William Rook, 27 years old,
|\said, “Freedom, freedom at last, man
— it’s been a good one,”’ and died at
2:11 A.M., said Renee McCoy, a spokes-
man for the Correction Department.
He was allowed to wear western boots
and a Harley-Davidson T-shirt.
The Court voted 5 to 4 late Thursday
to reject appeals on Mr. Rook’s behalf,
and Gov. Jim Martin refused to halt the
execution.
Mr. Rook’s lawyers had asked the
Court to. stop the execution at least
view a Georgia death penalty case that
.lraises an issue also used in Mr. Rook’s
'l appeals.
> Pve Seen Justice Done’
In both cases it has been asserted
-
w
arbitrary and unconstitutional manner
because of statistics that show killers
of whites are more likely to get the
death penalty than killers of nonwhites.
Mr. Rook confessed three times to
—— 2S DU Ww
7
oO
ban)
a
o
Ss
©
a
¥
o
°
Q.
oO
5
i=]
+)
Lact
—
@
—
2.
man meet his death and that is not a
pleasant sight. However, she suffered
— he died peacefully.”
Justices William J. Brennan Jr.,
| Thurgood Marshall, John Paul Stevens
| and Harry A. Blackmun voted to spare
Mr. Rook. Chief Justice Warren E
Burger and Justices Sandra Day O’-
Connor, William H. Rehnquist, Byron
R. White and Lewis F. Powell Jr. voted
to deny the appeal...
Mr. Rook’s sister Josephine tried
Thursday night to see him, but he
refused. ‘“‘His words were, ‘I don’t want
\North Carolina Killer Js
until October, when the Court is to re-
that the death penalty is imposed in an |
said.
About 100 death penalty opponents
gathered on the road outside the prison.
They carried candles and at one point
sang ‘Yes, Jesus Loves Me.
Court Overturns Death Sentence
TALLAHASSEE, Fla., Sept. 19 (AP) |:
— The Florida Supreme Court on
Thursday overturned the death sen-
tence for a triple murderer because the
trial judge took too long to explain to
the condemned man why he was being
sentenced to the electric chair.
to see a family member,’ ” Ms. McCoy
Executed.
_
ayant apres oe
bee ae co oni 9: i
“Hot Dogs for His Leas Maal”
; Raleigh, N. ¢.
Nn man who raped, beat and
‘killed: ‘a nurse was put to death
‘by. lethal injection last night.
“John William Rook, 27, was-pro-
nounced dead at 2:11 a.m. EDT at
Central Prison after receiving a le-
thal dose of the muscle relaxant
procuronium bromide, said Renee
‘McCoy. of the state Correction De-
x partment, ete
Sa “Freedom, freedom, ” Rook said
_in. his final statement. “At last, man.
‘lst been’ a good one.”
“Rook: was executed for killing
Ann Marie Roche, 25, of Raleigh in
1980, During a drinking spree, he
kidnaped. her as she was walking
home from an exercise class, raped
her, beat her: with a tire iron, re-
peatedly slashed her with a fishing
knife, ran over her with a car and
left her to die in an isolated field.
‘Her ‘body was warm when it
‘was found the next day, indicating
that she had died a slow and pent
death, experts said.
Rook’s lawyers had asked the
Supreme Court to stay the execu-
tion on the ground that the death
penalty discriminates against
males, poor people and those whose
victims are white. Rook is white, as
was Roche.
The court has agreed to review
similar cases in Georgia and Florida
after it reconvenes October 6, but it
rejected the appeal in Rook’s case.
In seeking clemency, Rook's
lawyers also argued that the state
was partly to blame for failing to
intervene in his family situation
_ and to provide a program for abus-
ed and violence-prone children.
Rook’s brother said that during
childhood their father stripped
Rook naked and beat him with a
belt until he bled, and often gave
Rook liquor when he was as young
as 4 years old to watch him get
“stone drunk.”
For his last meal, McCoy said,
Rook requested a dozen hot dogs
“all the way” — with mustard, cat-
sup, cole slaw, relish and chili —
and two Cokes. He ate three of the
hot dogs and. drank one Coke, she
said.
Rook wore western boots, a
Harley-Davidson T-shirt and Levi
jeans to the death chamber.
The execution originally was
Friday, September 19, 1.986
N orth Carolina Rapist-Killer Executed
set for Jan. 9, ‘1981, but it had been
' postponed five times.
Rook was the 66th person to be
executed in the United States since
the Supreme Court reinstated capi-
tal punishment in 1977.
Chronicle Wire Services
an ney
ERS Bose Accor omens
Bi tok ete ripies
The Honolulu Advertiser Friday, September 19, 1986 A-35.>,
e 2 4 ;
+
Killer executed after chain o reprieves }
: ,
#
United Press International Roche was raped, beaten with Rook’s lawyers asked the Su-—s The brother said Rook was 3
a tire iron, slashed with a knife, preme Court to grant a Stay on stripped naked and beaten with k
RALEIGH, N.C. — Condemn~_ run over with a car and left to grounds that the death penalty a belt until bloody; he reported- }
eo Killer John Rook lost his die in an isolated field. discriminates against Males, ly was given liquor and beer as $
final bid for a stay shortly be- Roche’s body still was warm poor people and. those whose early as age 4 for his father's 3
fore midnight and was put to the next day, experts Said. victims are white. amusement. :
death by injection early today. Showing she died a slow and Rook is white, as was Roche. 3
The Supreme Court voted 2-4 painful death. The Supreme Court has agreed In asking for clemency, 3
Oh deny the Slay. Rook, 27, Rook ordered a final meal of to review Similar cases in Geor- Rook’s lawyers said the state is *
voter five times wgeeen post 12 hot dogs “all the way” and gia and Florida after it recon. partly to blame for failing 1b 5
with a lethal dose of a miele wore blue jeans, cowboy boots venes. ding to his brother ona” 7 es : nee :
lakes Wes after 2 am. at and a Harley-Davidson T-shirt According to his rot ; tion and provide a prog e
Cent Poison” into the execution chamber, Rook was abused by their fa- abused and violence-prone chil ‘
“Freedom, freedom,” Rook McCoy said. ther during childhood. dren. :
Said in his fina] Statement. “At Some 100 Opponents of the $
last, man. It’s been a good death Penalty held a candle-
one,” light vigil outside the prison
_ Rook, who algo was denied during Rook’s execution. About
clemency Thursday by Gov. 40 supporters demonstrated in
Jim Martin, was Pronounced favor of Capital punishment.
dead at 2:1] a.m.. corrections Rook’s death was the nation’s
spokeswoman Renee McCoy 66th execution since the rein-
Said. . 7 Statement of capital Punish- ©
Rook was convicted of the ment. It was North Carolina's
1980 murder of Ann Marie third execution of the decade. _
Roche, a 25-year-old nurse Texas leads the Nation in the
Whom he abducted during a number of post-1976 executions
drinking Spree. Police said — 18.
ee, =A mh w& en Foie set |
es ae won d
oe. tence; in’ “thet brutal <3
= Raleigh nurse, ‘says the: ists oe
ae execution” of “her ‘killer’ ‘convin edi
him the death penalty: Js wrong. :
eed (x struck } me as too damn easy,!s4
E Narley’: Cashwell,’ ‘now*a*
attorney,” ‘said of. John * William
¥
oe ces
#
Se
bars
By Injection.““The kids “at. high school
could watch this on ‘LY,
cS
a
+ her over with a car and leaving he:
to'die in an isolated field in 1980:44%
Do -. what I wanted was'a little too much;
4 was served when he watched Rook’
an dig: ‘gently: in ‘his ‘sleep as a’ fatal’:
- doge, of muscle relaxant stopped. his
_isv Heart, | | Sg tll
Ee TE wosn't the brutality’ of Ann's
7 ,, death that. pethared me as much’ éi
“gee
arti
Sotheat pte that is what. they
do. to: you for‘killing: somebody, a
. what? I don’t think the ip Punishment?
e fit the crime, .
x ae ear
ine : ¢
Slifesi in prison’ without:
ced spa. harsher pentapee and, ‘would’
Aca hl S88, id
° defense pealeu ies ine
© Rook's Sept. 19 execution by ethal al [thing ‘more. ‘than @just ; Temoving
ge lt. seems to me we: ‘want. rehabilita-
-Rook, 27, was executed for raping: ie
1 = Ann Marie’ Roche, '25;: ‘slashing heriva
-repeatedly..with. a: fishing. Knife; penalty i in North. Cafolina,¥ the. John!
at 3 : beating her with a tire iron, running: Rook; case fit: what
North Carolina,” he
-“ Cashwell,. admitting © “maybe giremorse for this (
= blood, ” said he did: not feel justica ke... 7
**state” shifted. to
ewell said. “It: ‘either. will wind ‘up
being cold, clinical and sterile,’ or. it: )
a ZT’ ‘not in favor of. anything ¢ st ‘all. |
07 eae
vIn:
e Penalty’ w was reinstated i ‘in 197 be
aetna 2 sou ;
‘parole: would®.
is “ % PI “
awe: want gome-. ‘
people from society,'s Cashwell said...
c to be factors.®-
On we’ ’re going ‘to, have the death‘
:we: have, ° ‘in®,
No’ said. “If there's”
any question Mes T feel:any guilt or®
(R Rk execution), -
a Ca, ee
Bip a oi ARS Be teas oH ages
said ‘even: ifthe: |4@
‘another™ ‘means. of |: 8
execution, het ‘would *still : eae a
capital punishment’ $ Sg .
“ST don’t seg, anys;choice,” Cashs ap
ithe. answer is ve
“B But: Ceshoelf ct
; that’s going to be. atrocious."”.., m4
‘Rook :was the’ ‘third | person to ‘die’.
*North Carolina‘: ‘since -the death i |
Lage Peg ee nce.” a 7 aa er
aed? = we 784
EXECUTION ALERT!
John Rook is scheduled to be executed
in Raleigh, NC on September 19.
nce again John Rook is faced with execution. This
time he is scheduled to die on Friday, September 19.
John Rook was sentenced to death in Wake County
in 1980 for the brutal murder of Dorothea Dix
nurse, Ann Marie Roche.
It is clear that John Rook suffered from severe emotional
disturbance as a child and adolescent. The abusive conditions
of his childhood years were, in fact, among the most aggravated
seen by all the mental health professionals who testified at his
appellate hearing. Because of these conditions, he was taken
away from his family at an early age and placed by the State in
a variety of residential settings—foster home, orphanage, and
training school —where he received little or no treatment.
In 1980, the State recognized the existence of a class of children
—Willie M. children—for whom the state was not providing
adequate treatment. These children have mental or neurological
handicaps accompanied by violent or assaultive behavior. The
state now provides a substantial range of treatment programs for
such children where none existed previously. If John Rook were
growing up today, he would clearly be identified — and treated —
as a Willie M. child. Had these services been available during
John Rook’s childhood, Ann Marie Roche’s death might have
been prevented.
Could these services have helped alter the assaultive behavior
John Rook exhibited as a child and adolescent? Experts at the
appellate hearing point to several instances in John Rook’s life
that indicated his amenability to treatment. They noted that
children like he was can be treated and can be helped. One
doctor testified that treatment “could be very helpful, if not in
some cases preventive.” In short, with treatment John Rook
would have had a chance. Without it, he had none.
The State and its agencies were well-aware that John Rook was
at risk as a child. All the “red flags” are in the Department of
Social Service records: physical abuse, neglected and extremely
deprived home environment, and borderline intelligence and
retarded school progress. The Department of Social Service
social worker noted that mental health evaluation and inter-
vention were needed back in 1968-69. No help was available.
John Rook’s grade school teachers, junior high school teacher,
social workers and training school teachers all noted that he
needed help and intervention. None was provided.
North Carolina now provides services for Willie M. children.
It should continue in the direction of prevention and treatment
rather than in the direction of killing the adults it identified, but
failed to treat as children. Please join concerned citizens across
the state in protesting this execution.
Activities Planned Across the State
By North Carolinians Against the Death Penalty
Asheville: A vigil will be held. For further information call
704-253-1136.
Winston-Salem: Informational leaflets will be distributed and
skits will be performed in the parking lot of First Presbyterian
Church two consecutive days prior to the 18th. A vigil will
be held on the 18th. Anyone interested in street theater or
leafleting should contact Kay Vives at 919-725-9166. Infor-
mation on the vigil can also be provided at the above number.
Raleigh-Durham-Chapel Hill: At 7 p.m. on the 18th in Raleigh
a prayer service (TBA) will be held. Immediately following
the prayer service at 8 p.m., a march from the Raleigh court-
house to Central Prison will begin. A vigil will begin at
9 p.m. at Central Prison, 1300 Western Blvd., and continue
until the execution.
These events will not take place if a stay of execution is
granted.
CALL OR WRITE GOVERNOR MARTIN
TO OPPOSE THE EXECUTION
Toll Free Hotline Phone Number: 1-800-662-7952
Address: Governor James Martin, 116 W. Jones St., Raleigh; NC 27611
yA as a
‘Pl0I9Y 7 SMoN O1ogsusaIy ay}
JO ABmuog UYOr SsauyIM pres « STBO
« “Way ay} Surjafur poj1e4s (A9Y}) 193
Je © sy}eaIq daap yesaaas 400} ay,,
«. 9UO poos
“8 U90q S47 juew
~-881q,, :8J8M spiom Teuy s,yooy
. “S1IB9A OM} YSed 9Y} 10J 1071
SIA 1e[nZa1 e U9eq pey oym ‘T, ‘SUTY
‘Mel e1eg Jayoea} 9peis-jsay sty yyIM
Aep ay} ur Jey1e3 sinoy om} juads
nq ‘yyustu Aepsinyy, uo ‘aurydas
. Of “193SIS sty aas 0} Ppesnjei yooy
_Jaiapinur saqno9
“YIEP STY 0} ATWED
WOM "Le ‘Noy papivaq oy} pur ysTu
_ ABpsinyy aye] YOHNIaXa ay} ey
0} pasnja.s yunog eulaidng ‘g°9 ayy
« JOJJNS 0} BABY
1.UPIP 9y ey} Aem eB Ul peiayns ayg,,
‘8SBD 94} payndesoad s0JO asoym
‘AOTIY ydjopuey A9ul0}}Vy yO4SIG
Ayunog Sxl pres « Apo} 3194 sn
Spe9] 38} ourto 94} JO AyyTeyNIaq ayy
YW ATZu0Ns sow $}SB1}U09 pus sty
you oY YIyM YIM uInlodap pue 4}
“lU3Ip pue wyeo ‘ssou[njoovad auL,,
XO BUTTOIBD Y}ION M neg
‘O86T ‘ZI ABW uo wea e 4q
19A0 UNI puke poysers ‘ua}e8eq ‘pades
Buleq ssye Weep 0} paaiq A[Mo]s
0} Ye sem ayooy eeW uUuy. ssunu
s194M WOY aftu e UBY} Ssaq ‘UOstIg
[P4jU9) 94} 38 UONDafur Aq yeep
0} 3jnd sem YOON weiyiy
388] 38 Vay sem ay yey}
P9IP BY a10jeq pres 94 pue y11Ys-y,
UOSprARq -Aayiey youlq & pue $}00q
U19}SO9M Zulleam Aepliy paynoaxa
SEM UBWIOM B parry pue pede oym
ueu vy — (qy) O'N ‘HDID‘TIVY
986I ‘0% NAGWaALdaS AVAYNLYS
ViL—smay weysurmig syp
ection
N. Carolina
RALEIGH, N.C. (AP) — A man who
ayer
raped and slashed a nurse, then left her
inj
John William Rook
Nurse’s sl
dies by
in
to bleed to death was executed by
SyIAQY ~ TYNU DOL si
9861 ‘61 Ides “H4
|
$22. 2 fag 82. = 3
g 696: Genet i
b yeik AB ee 7!
ZanHiG Sahchshsecs 5%
bib Sgedeeecl’ 32
pa) gr, b
cade: byes nego g
pe CEES Perr rey
aygctsgesced sags ega!:
mite edie
Koc, Vote Bp AK N.C
486
ROOK v. RICE 401
| ( |
e "4 € cuted Sept Cite as 783 F.2d 401 (4th Cir. 1986)
considerations pertaining to notice and fun-
damental fairness, in other words, legal
issues not generally recognized to be with-
in the Secretary’s ken and, for obvious
reasons, more commonly consigned to the
judiciary’s “field of expertise.” 4 K. Davis,
Administrative Law Treatise, §§ 30.09,
30.14 (1958). The Social Security Adminis-
tration’s expertise and specialized judg-
ment in the areas of health and social wel-
fare would, of course, be highly relevant
factors deserving of deferential considera-
tion were we, for example, reviewing the
record for “substantial evidence” of disabil-
ity. But that is not the case before us.
Additionally, the law cannot condone ad-
ministrative discretion—such as the proce-
dural method advocated by the Secretary in
this case—which offends basic notions of
fairness and more often than not falls
heavily upon economically and socially dis-
advantaged claimants.
To summarize then, we acknowledge and
reaffirm the general rule of deference to
administrative interpretation as well as the
various rationales attendant thereto.4 At
the same time we note the distinctive fea-
tures of this case and accordingly state for
the record the heretofore implicit corollary
that where adversarial proceedings expose
ambiguity, conflict, or outright silence in
- the applicable regulatory framework, the
Secretary’s discretion in construing provi-
sions is, quite simply and of necessity, lim-
ited by considerations of fairness. Today
we apply both rule and corollary to sections
404.967 and 404.969, achieving a result in
accord with their fair meaning.
Accordingly, the judgment of the District
Court is reversed and the District Court is
directed to remand the matter to the Secre-
tary with instructions to reinstate the deci-
sion of the ALJ and conduct further pro-
ceedings consistent with this opinion -for
the purpose of resolving the original appeal
pertaining to appellant’s date of onset.
4. We also disavow any interest in rewriting the
Secretary's regulations. Separation-of-powers
doctrine as well as the burdens of our judicial
John William ROOK, Appellant, JZ
Vv.
Nathan A. RICE, Warden, Central Pris-
on, Raleigh, North Carolina, Appellee.
No. 85-4004.
United States Court of Appeals,
Fourth Circuit.
Argued Jan. 9, 1986.
Decided Jan. 31, 1986.
Petitioner appealed from an order of
the United States District Court for the
Eastern District of North Carolina, at Ra-
leigh, W. Earl Britt, Chief Judge, denying
his petition for habeas corpus relief in
which he asserted constitutional infirmities
in his conviction for first-degree rape, kid-
napping, and first-degree murder, and in
his capital murder sentence. The Court of
Appeals, K.K. Hall, Circuit Judge, held
that: (1) petitioner’s confession to a rape-
murder was voluntary; (2) in view of fact
that jury’s finding that act of driving auto-
mobile over victim was intentional neces-
sarily included ‘finding that act was mali-
cious, state could legitimately shift burden
of production on element, of malice to peti-
tioner to overcome proper presumption of
malice; (8) instructions with respect to miti-
gating circumstances did not deprive peti-
tioner of reliable sentencing determination;
and (4) death sentence was not excessive.
Affirmed.
James Dickson Phillips, Circuit Judge,
concurred in part, dissented in part, and
filed an opinion.
1. Criminal Law ¢519(9)
Defendant’s confession to a rape-mur-
der was voluntary, despite defendant’s con-
tention that he had not been informed at
dockets makes us quite content to leave this
function in the capable hands of the executive
branch.
ROOK v. RICE
Cite as 783 F.2d 401 (4th Cir. 1986) . _
[1,2] Our review of the facts of this
case leads us to conclude that the district
court did not err in finding that Rook’s
confession was voluntary. See Miller v.
Fenton, — U.S. ——, 106 S.Ct. 445, 88
L.Ed.2d 405 (1985).- Regardless of the fact
that appellant was not aware that he was a
suspect in the Roche murder at the time of
his arrest, he was informed of the murder
warrant against him during his interroga-
tion. At that time, he was also re-advised
of his rights. We find nothing in the inter-
rogating officers’ conduct that could be
considered as bringing undue pressure to
bear upon Rook to ‘confess. To the con-
trary, we find that Rook knowingly, inten-
tionally, and voluntarily consented to the
questioning which elicited his confession.
III.
Appellant's next contention is that the
trial court’s instructions on malice uncon-
stitutionally shifted the burden of proof to
him. The jury instruction to which Rook
objects was that given by the trial judge on
the crime of first-degree murder, pursuant
to N.C.Gen.Stat. § 14-17.. The judge -in-
structed the jury, inter alia, as follows:
Now, if the State proves to you be-
yond a reasonable doubt that the de-
fendant intentionally killed Ann Marie
Roche with a deadly weapon, or that he
intentionally inflicted a wound upon
her with a deadly weapon that prozi-
_ mately caused her death, then the law
, tmplies, first, that the killing was unlaw-
ful, and secondly, that it was done with
malice.
(Emphasis added). Appellant claims that
the emphasized portion of the above-quoted
instruction impermissibly shifted the bur-
den of proof to him. We disagree and
conclude that it merely shifted the burden
of production. With respect to an almost
3. The trial judge instructed the jury that:
The State must satisfy you from the evi-
dence beyond a reasonable doubt that the
victim's death was not accidental before you
may return a verdict of guilty of first degree
murder on the grounds of malice, premedita-
tion and deliberation.
The burden of provin ice i
g malice is not upon
the defendant. The burden remains on The
identical instruction in Davis v. Allsbrooks
778 F.2d 168, (4th Cir.1985), we held that
“a state may legitimately shift a burden of
production on an element of the crime to
the defendant ... so long as the presumed
fact is rationally connected to a proven
fact.” Jd. at 172.
{3] In this case, intent was at issue at
trial. Appellant maintained that he acci-
dentally drove the automobile over Ann
Marie Roche. The question of whether the
killing was intentional was submitted to the
jury with clear instructions that the burden
of proof was upon the state.* In rendering
its verdict of first-degree murder, the jury
found that the act was intentional and not
accidental. Rook did not contend nor did
he produce any evidence that he acted in
self-defense or in the heat of passion.
Thus, the jury’s finding that the act was
intentional necessarily included a finding
that the act was malicious. Accordingly, in
light of our holding in Davis, we reject
Rook’s contention. -
IV. .
Rook further claims that the trial court’s
instructions with respect to mitigating cir-
cumstances deprived him of a reliable sen-
tencing. determination. During the sen-
tencing phase of Rook’s trial, the jury was
instructed to determine the following: (1)
whether there were aggravating circum-
stances; (2) whether the aggravating cir-
cumstances were sufficient to warrant a
death sentence; (3) whether there were
mitigating circumstances; and (4) whether
the aggravating circumstances outweighed
the mitigating ones.
Appellant maintains that because of the
order of the questions and the fact that the
State to prove that the defendant acted inten-
tionally with malice, with premeditation and
deliberation.
If the State has failed to do so, then you
cannot find the defendant guilty of first de-
gree murder on the basis of malice, premedi-
tation and deliberation.
404 783 FEDERAL REPORTER, 2d SERIES
December 7, 1982. An evidentiary hearing
was held.on August 29—September 2,
1983, and September 19-22, 1983. The Su-
perior Court denied relief and dismissed the
renewed motion.
Thereafter, Rook filed a petition for writ
of certiorari in the Supreme Court of North
Carolina, seeking review of the judgment
of the Superior Court. That petition was
denied, and the Supreme Court of the Unit-
ed States denied certiorari. Rook v. North
Carolina, — U.S. —, 105 S.Ct. 608, 83
L.Ed.2d 716 (1984), reh’g denied, — US.
——, 105 S.Ct. 1287, 84 L.Ed.2d 373.
On June 4, 1985, Rook filed a petition for
a writ of habeas corpus in United States
district court. Following respondent’s mo-
tion to dismiss, the district court entered a
memorandum opinion and order dismissing
the petition. Rook v. Rice, C/A No. 85-
848-HC (E.D.N.C. October 18, 1985). Rook
subsequently filed a motion to alter or
amend the judgment, and it was denied.
The district court issued a certificate of
probable cause to appeal, and this appeal
followed.!
II.
On appeal, Rook asserts a number of
contentions. First, he claims that the dis-
trict court erred in ruling that his confes-
sion was voluntary and, thus, properly ad-
mitted at trial. Next; he alleges that the
district court erred in holding that the trial
court’s instructions on malice did not un-
constitutionally shift the burden of proof to
him. Appellant further contends that the
district court erred in concluding that the
trial court’s instructions on mitigating cir-
cumstances did not deprive him of a reli-
able sentencing determination.
In addition, Rook maintains that the dis-
trict court erred in ruling that his death
1. February 14, 1986, has been set as the date for
Rook’s execution. The district court denied his
application for a stay on December 3, 1985. By
order dated December 6, 1985, this Court. also
denied Rook's application for a stay of execu-
tion.
2.
The government submits that several of
Ra
ak'e cantentions are procedurally barred un-
‘sentence was not excessive. He also as-
serts that “death-qualification” of the jury
deprived him of his rights to a fair and
impartial jury. Finally, appellant argues
that the district court erred in rejecting his
contention that North Carolina’s capital ©
statutes are being administered in an arbi-
trary and racially discriminatory manner.
We disagree with each of appellant’s con-
tentions.”
With respect to his first allegation of
error, Rook asserts that his confession was
involuntary because he was not informed
at the time of his arrest that he was a
suspect in the Roche murder. He further
claims that Officer Holder’s statement that
the only thing that could help him was to
tell the truth served as a powerful induce-
ment to him to confess in light of his desire
for help with his alcoholism. Rook also
contends that because of his low 1.Q. of 71,
his poor education (seventh grade), his
young age (21), and his history of depriva-
tion and abuse as a child, he was highly
susceptible to the pressure put to bear
upon him by the interrogating officers.
Thus, appellant concludes, the statements
he gave to Officer Holder were involuntary
and should have been suppressed. We re-
ject this contention as meritless.
Following an evidentiary hearing on the
issue of voluntariness, the state court de-
termined that no promises, offers of re-
ward, or inducements were made to Rook;
-that he was: not-threatened in any way;
and, thus, that his confession was made
freely, voluntarily and knowingly at a time
when he, having a full understanding and
appreciation of his constitutional rights,
chose to waive them. The district court
independently evaluated appellant’s confes-
sion, and it agreed with the holding of the
state court.
der Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977), because they were
not raised on direct appeal in accordance with
state law and may not be excused on grounds of
cause or prejudice. Even if the government is
correct, we conclude that on their merits appel-
lant’s contentions must fail.
ROOK v. RICE 407
Cite as 783 F.2d 401 (4th Cir. 1986)
mination as to whether Rook should receive
a capital sentence.
[5] In addition, we conclude that the
failure of the trial court to require the jury
to list mitigating circumstances does not
rise to the level of a constitutional viola-
tion. All that is required is that the capital
sentencing procedure provide a reliable
means of determining whether an individu-
al defendant should receive a death sen-
tence. As noted previously, the procedure
employed in this case did just that.
V.
Appellant also contends that the death
sentence, as applied to him, was excessive
and disproportionate. He bases this con-
tention primarily on his problems with
drugs and alcohol, his troubled youth, and
the failure of the State of North Carolina
to provide him adequate help. We con-
clude that the district court did not err in
ruling that Rook’s death sentence was not
excessive. ‘
{6] _ As noted by the district court, appel-
lant’s troubled and neglected youth as well
as his alcohol and drug abuse problems
were presented to the psychiatrist who
made the determination of Rook’s mental
competence, the sentencing jury, the Su-
preme Court of North Carolina on direct
review, and the state judge on the motion
for appropriate relief. The examining psy-
chiatrist found Rook to be responsible for
his acts and competent to stand trial.
Moreover, the sentencing jury, even when
considering all of the mitigating circum-
stances, found that they were outweighed
by sufficiently substantial aggravating cir-
cumstances to warrant the imposition of
the death penalty. In light of the horren-
dous nature of the crimes perpetrated upon
Ann Marie Roche by appellant, we too find
that the death sentence was not excessive
in this case.
VI.
[7] Pointing to the fact that seven jur-
ors were successfully challenged by the
state for cause because of their opposition
to the death penalty, Rook next argues that
this “death-qualification” of the jury. de-
prived him of his right to a fair and impar-
tial jury. We rejected the same contention
in Keeten v. Garrison, 742 F.2d 129 (4th
Cir.1984), petition for cert. filed, S.Ct. No.
84-6187 (October Term 1985). Therefore,
appellant’s claim must fail.
VII.
Appellant’s final argument is that North
Carolina’s capital statutes are being admin-
istered in an arbitrary and racially discrimi-
natory manner. He asserts that defend-
ants who have murdered whites are more
likely to receive death sentences than are
defendants who have murdered blacks.
The state court which considered Rook’s
motion for appropriate relief reviewed this
contention and rejected it. The state court
reasoned:
The defendant has failed to prove, by a
preponderance of the evidence, that the
death penalty in North Carolina is admin-°
istered pursuant to a pattern of discrimi-
nation based upon race.... The court
specifically concludes that the testimony
and study by Dr. Samuel Gross [petition-
er’s expert] is based upon insufficiently
accurate data to establish a pattern of
discrimination in the application of the
death penalty based upon the race of the
owietinise ot er
The state court further concluded that
there is no evidence that the death sentence
in Rook’s case is the product of intentional
discrimination.
We have reviewed the evidence and
agree with the state court’s conclusions.
Consequently, we reject appellant’s conten-
tion-as meritless.
VHI.
On the basis of the foregoing, the judg-
ment of the district court is affirmed.
AFFIRMED.
406 783 FEDERAL REPORTER, 2d SERIES
last sentencing question posed to the jury
was merely whether aggravating circum-
stances outweighed mitigating . circum-
stances, the jury was never asked to decide
whether death was the appropriate penalty
for him.. He notes that subsequent to his
conviction, the Supreme Court of North
Carolina suggested that jury instructions in
capital cases follow a form which specifical-
ly asks the jury:
Do you find beyond a reasonable doubt
that the aggravating circumstance or cir-
cumstances found by you is, or are, suffi-
ciently substantial to call for the imposi-
tion of the death penalty when con-
sidered with the mitigating circum-
stance or circumstances found by you?
State v. McDougall, 308 N.C. 1, 301 S.E.2d
308, 327 (1983) (emphasis added). Rook
further asserts that his case was one of the
very few pre-McDougall North Carolina
death cases. in which the jury was nc. re-
quired to indicate separately in writing
whether or not each mitigating circum-
stance had been found. According to ap-
- pellant, his case was one which involved
substantial mitigating circumstances (e.g.,
low I.Q., deprivation and abuse as a child,
young age, etc.). He contends that if the
jury had been asked to decide whether the
aggravating circumstances ‘when con-
sidered with the mitigating circum-
stance{s], ” call for a death sentence, their
task would have been much different, and
far harder. . as ;
The district court rejected all of Rook’s
claims. It noted that the contention that
the jury should have been required to list
the mitigating circumstances was fully ex-
plored by the Supreme Court of North Car-
olina in its direct review of petitioner’s
conviction. State v. Rook, supra. It fur-
ther pointed out that it was that contention
that evoked the dissent of Justice Exum.
Nevertheless, the district court adopted the
reasoning of the majority of the Supreme
Court of North Carolina and found that the
procedure used by the trial judge was not
constitutionally deficient. The district
court determined that under the instruc-
tions given by the trial judge to the jury,
the jury did consider all mitigating circum-
stances and weighed those circumstances
in deciding that the death penalty was the
appropriate punishment. We agree that
the procedure employed satisfied all re-
quirements to which Rook was constitution-
ally entitled.
At the outset, we find nothing in the
Supreme Court of North Carolina’s decision
in McDougall which constitutionally man-
dates a particular order or form for the
sentencing instructions in Rook’s case. In
McDougall, the court was attempting to
establish uniformity in sentencing based on
North Carolina’s applicable statute. It was
not setting forth a federal constitutional
standard.
{4] The procedure involved in imposing
the death penalty need not be structured to
favor a defendant but need only avoid cre-
ating a fundamentally unfair trial. See
Barclay v. Florida, 463 U.S. 939, 103 S.Ct.
3418, 77 L.Ed.2d 1134 (1983). The best of
all procedural worlds is not guaranteed by
the United States Constitution. McGautha
v. California, 402 U.S. 188, 91 S.Ct. 1454,
28 L.Ed.2d 711 (1971). In Zant v. Ste-
phens, 462 U.S. 862, 103 S.Ct. 2738, 77
L.Ed.2d 235 (1983), the Supreme Court em-
phasized that in designing a constitutional
capital punishment system, all that the
state is required to provide is a meaningful
basis for distinguishing between those tri-
als resulting in a penalty of death and
those in which a penalty of life imprison-
ment is imposed. Under Zant, this is ac-
complished by simply identifying aggravat-
ing circumstances and requiring that one
or more of them be found. ‘What is im-
portant at the selection stage is an individ-
ualized determination on the basis of the
character of the individual and the circum-
stances of the crime.” Zant, 103 S.Ct. at
2743-44. We find that in the instant case,
neither the order of the instructions nor the
language of the instructions prevented the
jury from making an individualized deter-
‘ROOK v.RICE 409
Cite as 783 F.2d 401 (4th Cir. 1986),
Intent, both as a discrete element of the
crime of murder, and as a predicate for the
presumption of ‘malice, was obviously fully
in issue because of Rook’s “accident” de-
fense. The challenged jury instruction did
not embody any presumption of intent, cf.
Francis -v. Franklin, — U.S. ——, 105
S.Ct. 1965. Indeed, it clearly placed the
burden of persuasion of intent upon the
state, and indicated the relevance of the
“accident” defense to. its consideration.
And the jury was expressly told that malice
‘was presumed only if intent (and deadly
weapon use) were first found beyond a
reasonable doubt. ~ :
Because the elements of malice and un-
lawfulness had constitutionally been taken
out of issue by Rook’s failure to carry the
requisite production burden, the challenged
jury instruction embodying a presumption
as to those issues was not unconstitutional
on the authority of Davis v. «ilsbrooks.
II
‘Dissenting alone on Rook’s direct appeal
of his conviction to the Supreme Court of
North Carolina, Justice Exum of that court
voted to remand for re-sentencing because
of the trial court’s failure to require the
sentencing jury separately to indicate its
findings on each mitigating circumstance
submitted for its consideration. Though he
In failing to follow the state statute, Jus-
tice Exum indicated a belief that the proce-
dure used might also amount to constitu-
‘tional error because of its failure under the
particular circumstances to accord the de-
gree of “individualized consideration” held
to be constitutionally mandated in Lockett
v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978). The majority of the
Supreme Court of North Carolina, the dis-
trict court in this habeas proceeding, and
the panel majority here have of course
rejected this view, but I am persuaded by
it, and adopt it as articulated in detail by
Justice Exum. State v. Rook, 304 N.C.
201, 283 S.E.2d 732, 754-61 (N.C.1981).
I add only that central to Justice Exum’s
analysis is the necessary recognition that
requiring the sentencing jury to give inde-
pendent attention to each mitigating cir-
cumstance cannot be considered a constitu-
tional imperative under every state’s proce-
dures. The Supreme Court’s upholding of
a variety of state procedures which do not
have that feature makes that obvious. See
Gregg v. Georgia, 428 U.S. 158, 96 S.Ct.
2909, 49 L.Ed.2d. 859 (1976). : But Justice
Exum’s analysis convincingly demonstrates
to me that because each state’s sentencing
procedures will inevitably. develop its own
set of dynamics in providing more or less
“individualized consideration,” each must
therefore be assessed independently on
that:score. See State v. Rook, 283 S.E.2d
at 757-58 (Exum, J., dissenting).
Taking this approach, and supporting his
analysis of the peculiar dynamics of. North
Carolina’s procedure with actual case stud-
ies, Justice Exum’s analysis persuades me
that not requiring independent considera-
- tion and response as to mitigating factors
while requiring it as to aggravating factors
under the North Carolina procedure, signif- -
icantly undercuts the possibility of the de-
gree of individualized consideration con-
templated by the Lockett Court as constitu-
tionally required. For that reason, I be-
lieve that Rook’s eighth and fourteenth
amendment rights were violated by the pro-
1 would therefore issue the writ condi-
tioned upon the state’s providing a new
sentencing proceeding free of the constitu-
tional infirmity within a reasonable time.
408 ti 783 FEDERAL REPORTER, 2d SERIES
JAMES DICKSON PHILLIPS, Circuit
Judge, concurring in part and dissenting in
part:
I concur in the majority’s conclusion that
there was no constitutional error invalidat-
ing Rook’s state-court conviction and in all
portions of the majority opinion explaining
that conclusion save that which in Part III
deals with the burden-shifting instruction
issue. As-to that, I concur in the result,
but I write specially to indicate the basis of
my concurrence.
I dissent from that portion of the opinion
that finds no constitutional error in the
procedure by which the death sentence was
imposed. Because I think there was consti-
tutional error in that phase of the trial, I
would direct the writ to issue conditioned
upon the state’s provision of a new sentenc-
ing proceeding. - ,
I
I agree that under the procedural circum-
stances of this case, the jury instruction
incorporating the presumption of unlawful-
ness and malice did not unconstitutionally
shift the burden of persuasion to Rook. I
also agree that the reason it did not is the
same reason that ultimately saved the com-
parable instruction recently considered in
Davis v. Allsbrooks, 778 F.2d 168, (4th
Cir.1985). :
But the majority opinion fails to deal
with the specific challenge made to, the
instruction here, and because the chal-
lenges ‘are different—though equally una-
vailing—I do not want to be understood as
considering them identical and identically
controlled by the Davis v. Allsbrooks ratio-
nale:. In another case, the specific chal-
lenge made here might not be at all con-
trolled by Davis v. Allsbrooks, and I think
it important to recognize that in order to
keep the lines of precedent clear. This will
almost assuredly not be the last time the
courts of this circuit are called upon to
consider, in a variety of evidentiary set-
tings, challenges to North Carolina’s pre-
sumption of malice and unlawfulness as
-embodied in jury instructions comparable
or identical to that given here.
_ The specific challenge made here in fact
‘recognizes Davis v. Allsbrooks’ authority,
but attempts to distinguish it on the basis
that here—though not in Davis—malice
was in issue. This is said to be so because —
here Rook’s primary factual defense to the
murder charge was that death was caused
by the automobile’s running over the vic-
tim, and that Rook did not intend to run
over her, that this was accidental. There
being some evidentiary support for this,
the argument goes, malice was necessarily
in issue, because malice presupposes intent.
This being. so, the challenged jury instruc-
tion embodied a mandatory presumption fa-
voring the prosecution in respect of a dis-
puted element of the crime charged.
Hence it necessarily violated the constitu-
tional right recognized in such cases as
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.
1881, 44 L.Ed.2d 508 (1975); .Sandstrom v.
Montana, 442 U.S. 510, 99 S.Ct. 2450, 61
L.Ed.2d 39 (1979); and most recently in
Francis v. Franklin, — US. —, 105
S.Ct. 1965, 85 L.Ed.2d 344 (1985), because
the jury may reasonably have understood
the instruction as shifting the burden of
persuasion on the disputed malice issue to
Rook.
This argument is flawed, and in the end
Davis v. Allsbrooks does control to defeat
it. Here, as in Davis, the defendant had
failed to carry the burden that Davis held
was constitutionally imposed by North Car-
olina merely to produce “some” evidence of
“heat of passion” or “self-defense” in order
to hold malice fully in issue in the face of
proof beyond a reasonable doubt that the
killing was done intentionally and with a
deadly weapon. See Davis, 778 F.2d at
182, 183 (Phillips, J., concurring). Here,
obviously, there was no such evidence; the
production burden was not carried, and the
presumption had only the effect of confirm-
ing that because the burden had not been
carried, “malice” was presumed if the jury
first found beyond a reasonable doubt that
the killing had been done intentionally with
a deadly weapon.
ic ena Caer) ee er ee ee
ROOK v. RICE 403
Cite as 783 F.2d 401 (4th Cir. 1986)
determined that Rook matched the witness-
es’ description of Roche’s assailant.
At approximately 4:00 p.m: on May 15,
1980, Rook was arrested by Raleigh police
on unrelated misdemeanor charges of as-
sault on a minor child and failing to appear
in court on a charge of driving under the
influence (“DUI”). He was transported to
a magistrate’s office, where he was read
the warrants and informed of his rights.
Rook advised the arresting officer, Ronnie
Holloway, that he understocd his rights
and that he would answer questions with-
out a lawyer being present. He was then
taken before a magistrate, where bond was
set at $1,000 on the charge of failing to
appear on the DUI charge and $50,000 on
the charge of assault on a minor. There-
after, Rook was transferred to a jail cell.
Later that evening, at approximately 8:00
p.m., Rook was taken from his cell to an
interview room. He was provided a copy
of his rights and was again read those
rights. He advised one ofthe officers in
attendance, Freddie Benson, that he under-
stood his rights and he did not want a
lawyer present. He then signed a form in
which he waived his rights.
After obtaining some identifying infor-
mation from Rook, Officer Benson proceed-
ed to question him regarding his where-
abouts on May 12, 1980. Rook replied that
he had been involved in a fight with some
black people on that date. Officer Benson
then, in a loud voice, told Rook that he was
a.liar.- He read Rook a. warrant obtained
approximately two hours earlier, which
charged Rook with the murder of Ann Ma-
rie Roche, and he advised Rook that he was
being charged with murder. Subsequently,
Officer Benson left the interview room.
The two other officers in attendance, Offi-
cers J.C. Holder and Ted Lanier, remained.
After Officer Benson left the interview
room, Officer Holder reintroduced himself
to Rook and advised him that he was a
Raleigh Police Officer. Holder then went
over the rights form and waiver with Rook
a second time. Rook advised Officer Hold-
er that he understood his rights and the
waiver of his rights. He told Officer Hold-
er that he could read, and that he had had
his rights read to him several times before.
Rook talked with Officer Holder about
- his drinking problem, a former girlfriend
whom he had beaten up, and about his
wife. He also told the officers that while
in prison he attended AA meetings and
thought that he had his drinking under
control, but had started drinking again and
needed help for his problems:
Holder advised Rook that neither he nor
Officer Lanier could help him and that the
only thing that could help him was to tell
the truth. Holder told the defendant that
it took a strong man to admit that he was
wrong.
Rook then told Officer Holder, “Okay, I
did it. I hope you’re happy.” Holder
asked Rook to tell them about what had
happened, and Rook proceeded to make
detailed inculpatory statements concerning
his activities involving the death of Ann
Marie Roche.
Subsequently, Rook was charged with
first-degree rape, kidnapping, and first-de-
gree murder. Counsel was appointed for
him, and he pleaded not guilty on all three
charges. He was convicted by jury on all
counts charged on October 23, 1980. Fol-
lowing the verdict, the trial court convened
the sentence determination phase before
the same jury, which recommended the
death sentence for first-degree murder and
consecutive life sentences for kidnapping
and rape. Rook .appealed. to the Supreme
Court of North Carolina, which affirmed
with Justice Exum concurring in part and
dissenting in part. State v. Rook, 304 N.C.
201, 283 S.E.2d 732 (1981). The Supreme
Court of the United States denied certiora-
ri. Rook v. North Carolina, 455 US.
1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982).
On July 26, 1982, Rook filed a motion for
appropriate relief, pursuant to N.C.Gen.
Stat. § 15A-1411 et seg. (1978), in the Su-
perior Court of Wake County. An amend-
ment to the motion was filed on October 14,
1982. The Superior Court dismissed the
motion, with leave to renew. Rook filed a
renewed motion for appropriate relief on
402 783 FEDERAL REPORTER, 2d SERIES
time of arrest that he was a suspect in
murder, where defendant was informed of
murder warrant against him during his in-
terrogation and was also readvised of his
rights.
2. Criminal Law ¢519(9) ;
Defendant’s confession to rape-murder
was voluntary despite contention of undue
pressure put upon him by interrogating
officers.
3. Homicide €286(2)
Trial court could legitimately shift bur-
den of production on element of malice in
homicide prosecution to defendant to over-
come proper presumption of malice that
would arise from a jury finding that de-
fendant’s act of driving automobile over
victim was intentional.
4, Criminal Law €1208.1(6)
~ Procedure involved in imposing death
penalty need not be structured to favor a
defendant but need only avoid creating fun-
damentally unfair trial.
5. Criminal Law 796
Instructions with respect to mitigating
circumstances did not deprive defendant of
reliable sentencing determination, despite
contention that order of questions and fact
that last sentencing question posed to jury
was merely whether aggravating circum-
stances outweighed mitigating circum-
stances rendered instructions constitution-
ally deficient because jury was never asked
to decide whether death. was. appropriate
penalty for defendant; neither order of in-
structions nor language of instructions pre-
vented jury from making individualized de-
termination as to whether defendant should
receive a capital sentence.
6. Homicide 354
In light of horrendous nature of rape
and murder of which defendant was con-
victed, death sentence was not excessive.
7. Jury 33(2.1)
Challenging potential jurors for cause
because of their opposition to death penalty
did not deprive defendant of right to fair
and impartial jury.
John Charles Boger, New York City
(David S. Rudolf, Durham, N.C., on brief),
for appellant.
Richard N. League, Sp. Deputy Atty.
Gen., Raleigh, N.C. (Lacy H. Thornburg,
Atty. Gen. of N.C., Barry S. McNeill, Asst.
Atty. Gen., Raleigh, N.C., on brief), for
appellee.
Before K.K. HALL and PHILLIPS, Cir-
cuit Judges, and HAYNSWORTH, Senior
Circuit Judge.
K.K. HALL, Circuit Judge:
John William Rook appeals from the dis-
trict court’s denial of his petition for habe-
as corpus relief, pursuant to 28 USC.
§ 2254. In his petition, he asserted consti-
tutional infirmities in his convictions for
first-degree rape, kidnapping, and first-de-
gree murder and in his capital murder sen-
tence. We affirm.
I.
A detailed account of the facts of this
case is set forth in State v. Rook, 304 N.C.
201, 283 S.E.2d 732 (1981), cert. denied, 455
U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155
(1982). The following is a summary of
those facts relevant to this appeal.
On May 12, 1980, Ann Marie Roche was
walking along a public road in or near the
City of Raleigh, North Carolina, when she
was abducted by a white man with long,
-blond hair worn in a ponytail. She was
kidnapped and carried away in an automo-
bile to a remote site several miles away,
where she was brutally beaten, assaulted,
raped, and run over by an automobile as
she lay wounded and bleeding to death.
The next day, her body was found.
Witnesses to the abduction had written
down the license plate number of the car
into. which Roche was forced and had re- °
ported that license plate number to the
Raleigh police. Upon investigation, the po-
lice discovered that the car had, at the time
in question, been on loan to John William
Rook from his neighbor. The police also
Saturday, September 20, 1986
Rook’s final words were:
—————_ ~
Gainesville Sun 3A
—
“Freedom, freedom at last, man! ”
Killer executed in N.C.
said he was
The Associated Press
RALEIGH, N.C. — A man who
raped and killed a woman was exe-
cuted Friday wearing western boots
and a black Harley-Davidson T-
shirt, and he said before he died
that he was free at last.
John Wil-
liam Rook
was put to
death by in-
- jection at the
Central Pris-
on, less than
a mile from
where nurse
Ann Marie
Rook Roche was
left to slowly bleed to death after
being raped, beaten, slashed and
run over by a car on May 12, 1980.
“The peacefulness, calm and dig-
nity and decorum with which he
met his end contrasts most strongly
with the brutality of the crime that
finally free
leads us here today,” said Wake
County District Attorney Randolph
Riley, whose office prosecuted the
case. “She suffered in a way that he
didn’t have to suffer.”
The U.S. Supreme Court refused
to halt the execution late Thursday
night and the bearded Rook, 21;
went calmly to his death.
Rook refused to see his sister, Jo-
sephine, on Thursday night, but
spent two hours earlier in the day
with his first-grade teacher Sara
Jenkins, 71, who had been a regular
visitor for the past two years.
Rook’s final words were: “Free-
dom, freedom at last, man! It’s been
a good one.”
“He took several deep breaths ..
after (they) started injecting the
chemicals,” witness John Conway
of the Greensboro News & Record
said. “He seemed to be relaxing
himself ... three very slight body
shakes, but.it appeared to be very
The Associated Press
Death penalty opponents hold a candle light service at the
Pullen Memorial Baptist Church in Raleigh, N.C., Thursday
night for convicted murderer John William Rook.
painless for Mr. Rook.” candles and signs and sang in a vigil
Outside the prison, about 100 for Rook, the 16th person executed
death penalty opponents carried this year in the United States.
*9Q6T-6T-6 Ue
(Agung OR8y) BUTTOAeD YIION ‘ueTqgoofuy TeuqgeT fe9TuM ‘WeTTTIM uyor ‘WOO
c
The Honolulu mee Friday, September 19, 1986 ies
Killer executed after chain of reprieves —
United Press International
RALEIGH, N.C. — Condemn-
ed killer John Rook lost his
final bid for a stay shortly be-
fore midnight and was put to
death by injection early today.
The Supreme Court voted 5-4
to deny the stay. Rook, 27,
whose execution had been post-
poned five times, was injected
with a lethal dose of a muscle
relaxer shortly after 2 a.m. at
Central Prison.
“Freedom, freedom,” Rook
Said in his final statement. “At
last, man. It’s been a good
one.”
Rook, who also was denied
clemency Thursday by Gov,
Jim Martin, was pronounced
dead at 2:11 a.m.. corrections
spokeswoman Renee McCoy
Said. .
Rook was convicted of the
1980 murder of Ann Marie
Roche, a 25-year-old nurse
whom he. abducted during a
drinking spree. Police said
Roche was raped, beaten with
a tire iron, slashed with a knife,
run over with a car and left to
die in an isolated field.
Roche’s body still was warm
the next day, experts said,
Showing she died a slow and
painful death.
Rook ordered a final meal of
12 hot dogs “all the way” and
wore blue jeans, cowboy boots
and a Harley-Davidson T-shirt
into the execution chamber,
“McCoy said.
Some 100 opponents of the
death penalty held a candle-
light vigil outside the prison
during Rook’s execution. About
40 supporters demonstrated in
favor of capital punishment.
Rook’s death was the nation’s
66th execution since the rein-
statement of capital punish-
ment. It was North Carolina’s
third execution of the decade.
Texas leads the nation in the
number of post-1976 executions
— 18.
Rook’s lawyers wish the. Su- '
preme Court to grant a stay on
grounds that the death penalty
discriminates against males,
poor people and those whose
victims are white.
Rook is white, as was Roche.
The Supreme Court has agreed
to review similar cases in Geor-
gia and Florida after it recon-
venes.
According to his brother,
Rook was abused by their fa-
ther during childhood. |
wm fhe Associated Press.
‘North Carolina va cnet |
—~- RALEIGH, N.C. — A manwhowiy
‘Phe brother said! Rook “spas
stripped naked and beaten with
a belt until bloody; he-re
ly was given liquor and as
early as age 4 for his father’s
amusement. ie
In asking for clemency,
Rook’s lawyers said the state is
partly to blame for failing t
intervene in the family situa-
tion and provide a program for
abused and violence-prone chil-
dren. ”
we The US. Supreme © Court Ey
confessed to raping eee ingand~ Gov. Jim a refuséd to halt
Ss. ing a a’ urs v the: : tee
= soneed by inject y to-. -. . Rook confessed. insta Uibiee :
“day less than-asn irom be! i police that ‘he raped, ‘beat and ©
Ky fala where he left her to bleed Ito slashed Ann Marie Roche of Ra-
death,
John William Rook, 27,
*. pronounced dead at 2:11.a. .
ection Departmént ©
~ gaid Correc
he spokeswoman Renee Leba
last. words. were:.. ‘Free om,,.—.
freedom, at last, man: It’s been a-
good ONG Lhe
with a car and left her.
at a state mental institu
was
the country since
leigh in 1980, then ran. ee her i
* Tt was the third weet in
“North Carolina and the 66th in
bas a *
_. San Francisco tr Chronce }
s the 66t
"executed in the United
am ey the Supreme Court reins
oe “nounced « dead a’ ‘O11 am. EDT at *
Cen ntral Prison after receiving a le
of. the amuscle relaxant
quor when he: was as you:
as 4 years old to ‘watch im
ire iron, re... “stone drunk,” ...
ith a fi
Li ff. 2
‘ohaston
RATE LETTERS
sas Junction (Va.)
ir 23, 1862
ris morning when John
ad when you last wrote.
} kind worth writing.
th well at present, ft
‘nearly a week, and it
ling was very cool and
ixe winter is fast ap-
teins us some winter
& glad to have a good
‘if not well clothed in
host imagine now how
Ise high hills when the
ng around them, The
{ll be as many ag. we
b of conveniently., Two
} each, such’ as. can be
& 2 or over other shirts;°
‘ ~° ‘awers each, and some
(thing that we shall
i) can send them by
‘them., You need not
dr it will be impossible
‘2 not even allowed to
irry them home when
iservice. I tell you this
expense of coming so
hek without Seeing us,
get back after you get
a
.
fich us; he came the
te leave in the morn-
fetter by him. He got
;of some members of
ce In Richmond.
them to write often
, ‘ poise, SUn,
ROLE ASUS AED WALTER.
sero and try to make
“Is sister’s address?
-4 irs. Anderson Brigade
7 ' 1862, a
i aa
‘in the morning for
ail Myself of the op-
2. me, There is noth-
of “War News.” You
+, and that’s in the
aes is quiet. We were
cay or two ago, With
other march to 'Mal-
i
h a
'e a day or two ago,
i
2
i
i
j Ww N bruary 26, 1902.
ROSE, John Henry, white, hanged at Wilson, Ne Ce, on Fe : y | ’
nia - Your. affectionate son. a
AOD ap Pah Tne WAL eR A
'}.P.S. Please send the veil by the first one comin
Eyow:.see. r Bie:
‘to our camp. Give my"respects, to, all the, oys. that, ¢ buttcns, also thes
By psu shall send by .Mr, Farmer “my w
hirt I wore off.
‘Ought to have left at-home I brough
-» Looking Bag
: : By Hug Ph
MORE BATTLE LETTERS
u
Near Rapidan Station, Va,
March 23rd, ‘1862, hee
My dear Mother:
have had considerable excitement since you las
: heard from us, Today two weeks ago we evacu
stand, but nothing is known for certain. I don’
believe the Generals, themselves know. The nigh
slept. on the ground with the sky for a covering,
expect them daily... . : :
The Yankees have been some distance this side
of Manassas, Our troops had a little skirmish
with them a day-or two after we left. Some of
the Cavalry came in sight of. our pickets. They
fired on them and they disappeared. It is reported
that “they have gone back to Centerville, perfectly
non-plussed at our movement. The country. we
are now occupying is the prettiest and the most
beautiful scenery you ever saw, We Can see the
‘mountains in the distance covered with snow, and
when the sun shines it is sublime. We are on
‘what-is called “Clark, Mountain.” There is a
Mountain or rather a hill on a mountain about a
quarter of a mile off that commands a view of
the country for. miles around. Some of. the men
letter to Richmond .to be mailed. I do not know
,left ard it saved us
away. Eight .hundred
*xing on the breast-
here, IT am in hopes
‘car enough to Hich-
it behind them, ‘he
ye has received their
‘f one and we Haven’t
Bpe We won't,
ing a calculation this
: have lost 226 men,
D'tnds, since the day
'f at “Zeven Pines.”
> r command of Pat
‘in Very good health,
a single man on the
; : swan in a sreat degree
is the hect wre have
J Zinia, I am getting
- ing excellent. health,
t
5 to do, Not half as
3. General Anderson
uld not be Surprised
nham to set well. 1
vas an Officer than
3 one of his brothers
- I wish you woud
send me that brown
t to put it over my
° morning, to keep
'¥ flies yet; you can
ere. The mosquitoes
Dut it Over my face
1 that’s every night}
1ed from Mr. Parker
oor little fellow, 1
t home tt wonld be
ly, aud my respects
and tell me all th i
- attend t
te fer 4
‘Dear. Mother:)) {2°
More I think of him, the more it affects .me, and
Unless Tam In some battle and excitement, F am
that there is any communication between here
and -Richmond. | We only got the old nmil that
was stopped at Gordonsville. MacWilliams, one
of our Company, is going to Richmond tomorrow
on business, I will get him to mail it for me.
I do not see a word about this move in. the
Dapers, so I must think the Government is with- |
holding it from: them; to prevent the Yankees
from obtaining information, Johnnie Dunham is
still A. A. Genl.’of the Brigade and I am writing ].
for him, though-I-do not have one third to do
‘, that I did’ at. Manassas, as that was a Treguiar
military post:.- We had inspection today, to see
how the guns, etc., were getting on after the hard
usage and /bad...weather they had gone through
lately. Trot EAS Mi tfen ty ” Naina
Write soon: -We may get all of yours letters,
though you might not get all of ours, unless mailed
heyond : Gordonsville.- Give my love to all the
family, Cousin Claudia, ete., etc. I remain,
oToyyy¥oOur sincere and devoted son, am
et vee, WALTER..
Richmond, Va, ,
yy, ans JUMe 15, 1862,
I hope you are not uneasy about me because
I have not written before. I knew if J wrote it
would take a week for you to Set it, so I put it
off till I could send it by Mr. Albert Farmer, who}.
- will go tomorrow. The surgeon of the hospital hag
’ given me a passport to stay wherever I Pleased in
the city and report to him every week. I believe}.
IT should. go crazy ff I had to stay in the hospital
where’ everything is so dull and disheartening. |
In fact, I don’t believe -I am the same being I was
two weeks ago:_at least I don’t think as I used to
and things don’t seem.as they did. I don’t: believe
I wiil ever. get over the death of George. The}
eternally thinking of,the last moments of his life,
How he must. have suffered,. {f\he Was ‘conscious
Raa AREAS T,Hhlok: 9 Jong letter
‘a a
sil, Sage Hdats. Special Brigade rn
Gth-of March, It is the first time any of ug have
+We don’t h an f.
We received your letter last night dated the car anything of. Everything is quie
heard from home within the last two weeks, We,
| ated Manassas and have been moving to the rear|}- ited 0 ; : .
| ever since, We are now on the South side of the i Loo 111, : ackward
| Rapidan River, where I think we will make a
“ts... THE ROSE. MURDER. CASE
we left: Manassas (about sunset) we marched ten|; ©}. ; afm
miles that night, stopped about two o’clock and A large number or Persons have been murdered
ne oe rahe, pai ea nN , ing, but the principal reason for remembering
three days we marched it rained every night just John Henry'Rose is that he was the only white man
walled ‘all pp tp dln Pil tia oe personally “acquainted . with..any -of the people
‘| back;. then having. to start a fire out of doors -lavolved in the murder and the ensuing trial, but }
wiieent aoa featkave no light wood) and cook _ have relied entirely on the public records, whose
your next day’s ration, is pretty hard soldiering, || °Vidence I shall attempt to present in chronologi-
I can assure you,. though the bays all. seem to/|| °!.and analytical manner that should permit each |. :
be cheerful. We have very little sickness and for 4 my a rg Pg form eerie ceoion =
the. last. ten days’ (a ‘circumstance Not known | ie oo he case. Here:is: the s Ory t
before since we have been in Virginia) we haven’t ohn Henry Rose. was an-uneducated citizen o
ha n- i &
2 seni "sorerae aged esc |’ occasionally supplemented. hig income by distilling
7 Art J illegal whiskey. On March 14, 1897, at the home
stopped at Gordonsville some time ago, whilel. Seidl , . ’
we were making our retreat from Manassas, We|: 0! J. D. Aycock,: Justice of the Peace David Daniel
are up there’ all the time. I intend to send this |
|: this threat to Rose’g ears wi
“} had. not? heen’ with, you, and if you don’t mind 1
| Pharaoh. Row
Please. some of yout write me soon,
Ingly Pus
ogy
thes. ee
: By Hugh bKnLion /
this
t
;in Wilson County since its first settlement, and
some of the cases have been particularly jnterest-
,*
ever hanged here“legally for that crime. I am not
Spring. Hill, Township who farmed tor a living and
united him’ in, marriage with nineteen-year-old
Mintcy Brown, In fact, his brief life of twenty-six
years was rather uneventful prior to the murder
(and his hanging on February 26,: 1902, but he}
was a disturbing influence’ in’ his community, and |. -°
there was gossip amonz his: ‘neighbors that now
indicates ‘the ‘true potentialities of his character. Lapis
i» It was-said that Rose had’taken a shot at Demp-|-
' sey Ward some -four years: prior to the murder, | .
! and that he had later killed a mule. C, C, Evans |’
| reported him as having said he tried to kill Ander-
son Holland “‘but the damned old gun wouldn’t
fire,’”” while Joe Evans had himself been threatened
with a gun by Rose who said, “I believe you are
bousing my wife.” Although Bennett Wheeler de-
| {nied at the trial that there had ever been any]. .~.
crossness between himself and Rose,. the latter |~
| accused him of having said, “If I ever catch you
out of your house, you shall never go back,” and
“if I catch you on. my side of the road, I’ shall
kill. you before you get back.” .
There is abundant evidence that Roge felt a
deep animosity towards Thomas Farmer after the}.
Revenue Officers raided his still, because ‘ha {240
thought Farmer had reported its loeation to them,
Ruffin Ward testified at the trial that Rose said, |
“I [ knew Farmer reported my still, I would. whip. |.
him.” Bennett Wheeler, who: had worked. with
Rose for about two months in 1900, gave similar
‘| testimony and added that he had heard Rose say
many times, “If I ever catch Tom F
round—my still, I am going to ki
Thomas, '.an » unlettered tenant. of.
+
Atkingon,’“st
hen ‘y eu in =¥i
2h RT rats UE sent e
j té bear’ about reporting the still or he would empty}. “;
‘his Winchester in him.” Thomas hastened to bring
_ At the trial Rose quoted Farmer ag having saiq}-
(Farmer, being dead, was not in a position to}.~-
'? affirm or deny it), “I would have gotten you tha
“night you robbed Mr. Atkinson’s bees if your wife
will get you yet. You have got to treat me ag a
brother; if you don’t, I will get you.”” Rose assured
Lthe Court that he had treated him as a brother.
The illiterate Nancy Rose stated at the Inquest
that she lived about One-quarter of a mile trom
.j the Farmer place and that Rose, while at her
home two or three weeks ago, had remarked about
Farmer's. threats that he would have killed him
but for his wife and that.she Would not always be; -
{nthe way. ay TRE Ma
“. “Ransom Deans, an unlettered tenant on Farmer’s
,land,.reported at the Inquest:that Rose's wife had
come to him about,a month: earlier and had satd
hthat her hysband and J. T. Thomas ‘were making
a club of white caps to come over here and white
cap Mr. Farmer and Bennett: Wheeler.”” She asked |
Deans: to-warn both. men
8, also uneducated ar
Ake syrr i! ONT ey Pye
a¥
GP Rhy NE SIE
rye Inquest, added that Farmer and Wheeler came
ho his house withi,a; Winchester’ rifle. about.the
‘asst of June and‘ asked him if he had beén invited
3
to
bate had been organizing; which he denied.
J gowe stated that he knew of no unkindnesg he-
} ween Mr. Farmer and either of them. Rose claim-
jog tell him the name of the person who “started
ene white cap business,” and that the information
‘Jad been refused, » “SES
The actual murder took place on the Saturday
siternoon of July 27, 1901. That morning, accord-
tag to the ‘sworn testimony. of two Kenly clerks,
tesse Watson of G. G, Edgerton and Song and
tioyd Godwin of Bailey Bros, and |Kirby,. John
sjeary Rose had tried unsuccessfully to purchase
wwe large shot from them. There was apparently
‘gothing else of interest until about 3:30,- when
parmer and Bennett Wheeler got into a buggy
wa the Winchester (also mentioned by Ransom
cvans at the Inquest) and headed for: Kenly.
yreeler. testified that; when they passed J. ‘I.
yomas’s house about:.a mile from Kenly, Kose
Fe sas standing in the doorway and the Thomas
/ynily were on the porch. Farmer was: unaware.
; at the very minutes and seconds of his life were
gyady numbered. a
} sh ous
Looking Backward
3 ' : parr E
Le By Hugh Johnston
3 THE ROSE MURDER CASE (Cont.) 7
} Julietta Harper, J. T. Thomas's sister-in-law,
wid that Thomas: himself was the first to leave
}:xe house (about 4:00 he estified at the Inquest),
* sad Rose soon followed. Rose said at the trial that
“ye went to his father’s home about one and one-
yalf miles away and started about 4:00; he neg-
- tected to give satisfactory details of his subsequent
activities. He himself lived less than two miles
north of the Kenty-Buckhorn Road, which was
about half way between there and the place where
farmer was shot. The Thomas home was’ on the
Xenly-Wilson Road between the murder site and
the Farmer residence which was reached by taking
a northeasterly side-road past Chesterfield Atkin-
son's and thé tobacco barn. | ’
Pharaoh Rowe said at the trial that about 4:00
he climbed a ladder at the barn in order to examine
the tobacco near the roof and happened to see
Rose crossing Atkinson’s cotton patch from the
Thomas Direction, some 200 or 250 yards away,
with what appeared to be-a gun, Although her
statement was not introduced at the trial, Mrs.
Penina (wife of Thomas) Watson not only before
the murder saw two men in the woods near her
house and thought that-they .were Rose and
Thomas. They were going in the general direction
of the fatal spot and were apparently trying to keep
out of sight. In-the meanwhile, between 5:00 and
5:00, C. C. Evans saw Thomas Farmer and Ben-
nett Wheeler leave Kenly together in the bugsy
‘and start towards home, a .
Wheeler, a man without education but described
by John High and J, K: Finch as “‘the pick of the
Wheeler family,” made before. Justice of the Peace
'J. T. Revell a sworn statement that was later
repeated at the trial and may safely be considered
the evidence that fastened the noose around Rose’s
neck. He and Farmer had been talking about
Potatoes and, twenty-five or thirty ytrds from the
Path that would take them past Atkinsen’s to
Farmer’s home, they were suddenly fired upon
, from the woods. He himself received shot in the
knee, arm, breast, and face, while other buck and
BB shot struck Farmer in the fact and body. in
fact, about one hundred shot were imbedded in
them and the buggy. Farmer was unconscious, but
Wheeler jumped from the. buggy immediately
With the reing in his hands and brought the
trizhtened mule to a stop within fifteen steps.
Wheeler looked up in time to see Rose running
through the weeds with a gun in his hand, but
Admitted to the latter’s question at the trial that
be did not actually see him fire the shot. He got
back Into the buggy and carried Farmer to his
Srother Jolin Wheeler’s house, but stopped at; At-
O ‘!nson’s tobacco barn long enough to “report the
uvoting to several parties there present, and when
tat who did the shooting, I. told them John
A eid Rose.” Thig was around six o’clock in the
; ‘oon, and about. three hundred yards from
.¢ Place of the ambush. Farmer died within a
" he Minutes after being taken into the house,
: “38 covered with blood. from his mandy wounds.
“the .180m Deans testified in Court that he heard
Yeo” fired, saw the! wounded-men In the buggy,
Ha tet unhitch the mule, and asked Wheeler who
\ag t. being answered it.was Rose, John Wheeler
Inq tated approximately the same thing at the
: mah ho heard the report, soon saw hfs brother
ws Hoh Farmer approaching;\ and. heard: him’ say that
Se irin.° Henry Rose did-it and then ran. off through
.
‘
Neal:
dyer atenay
Dre Mets zriAd 2s
attend the “white cap” meeting that Rose and|-
yj at the trial that he had offered Farmer $5.00 |
.| driving home rom the. direction of Kenly, he saw
did not -know who had done it: and Rowe remarked
}a@ heavy -load of: powder or shot or both) and
quoted Wheeler to the effect that “someone had
is strangely. conflicting testimony.
Bennett Wheeler was very specific at the trialf:
!as'to what he had seen as he stood at the front
‘was: right: plain; I saw him; he had just started
; to run. I didn’t see anybody fire the gun, but I saw
‘the defendant run from the stump from where the
‘shot came..... Defendant ran to the left through
the woods. He had just got up and started when
IT saw him. He was right at (the) place fixed to
shoot from. He had on a light colored hat and no
[were also. with ‘Wheeler at{.Atkinson’s, tobacco
y barn, but at the Inquest Ward claimed that. Ben-|i x
nett Wheeler replied to their ‘questions that he |:
about the ‘“‘unusual loud report’ ‘(that would imply /
shot them and he did not know who it was.” This|’
‘ wheel of the buggy after stopping the msle: “Rose .
coat... The undergrowth is not very high, I saw
John Henry Rose run; I know it. was Rose.”
J. T. Thomas averred at the Inguest that he had
6:30, going toe Thomas Ward’s!house where he
and John Ricks (according to what Ransome Deans
heard) had seen Rose “coming in a.trot from down
On August 5;.1901, J. T. Revell wrote to Solicitor
Charlie. Ricks’s private statement that, as he- was:
Rose. in a white hat:cross the Buckhorn Road from
the swamp and get some peache# at Kirby’s orchard
-before_xoing west toward his home, .° .- .-
. Looking Backward: -
eee te SOS 1 ie |
By Hugh Johnston
_. ©HE ROSE MURDER CASE (Cont) |
John. Henry Rose admitted at his trial that he
saw John Ricks and his son in the road, and that
he returned to J:.T. Thomas’s house about sunset
(as Julietta Harper had said-earlier) before going
Pharaoh Rowe told him of Thomas Farmer’s mur-
der. Rose is reported at the Inquest to have said,
“It wasn’t me, for I haven’t got harm enough
' against a man_to kill him.” Thomas’s statement at
this time indicates. that Rose went home with
him after they had met at the tobacco barn, and
that they ate supper together before going to
Ruffin Ward’s house: to spend the night, It was
probably .about ‘sunset that Mrs. Penina Watson
saw them for the last time that day. Ward noted
at the trial that, this ‘was the first time that Rose
had ever spent the night there, and quoted the
latter as saying, when told of the accusation being
circulated, against him, ‘God knows I haven’t got
enough against any man to kill him.’* te!
The next day was Sunday, July 28, 1901, and the
Coroner’s Inquest-was held in the home of Thomas
Farmer “them and there lying dead” in Spring Hill
Coroner, presided over a Jury consisting of Chest-
erfield. Atkinsan,,James Moore, Joseph. T, Hinnant,
John T, Revell,-R..B Raper, and Levin Watson.
‘Business was initiated with Hinnant’s affidavit
made. before Justice.‘Revell that Farmer had been
‘unlawfully. done. to .death by a gunshot wound
inflicted by someone unknown to him. The Jury
heard the: various ,evidence and found sufficient
cause to. helieve’ the murderer wags John Henry
| Rose that: they: recommended his being committed
‘to jail without bail. ; oe TSE
t. Shortly after the Inquest, J. R. Watson testified.
j at the trial; Rose’s father carried him and several
cthers to his:home and showed them that both
barrels of the Defendant’s gun were rusty, J: D.“\
Aycock said that he saw it on the following Sunday
and that it “looked as though it had not been fired
for a week or two.” Although no intimation of this
‘was brought out during the investigations, it is.
the feeling..of your columnist that the actual
murder weapon was the property of J. T. Thomas,
and that Thomas had cultivated the animosity of
Rose towards. Farmer, but I am not prepared to say
that Thomas really wanted or believed that Rose
would. actually carry out his threats of vengeance
against Farmer. ~ . ; Rees
County officials and private citizeng went 0
large numbers to examine the scene of the ambush,’
Joa Evans stated in Court that he and Wheeler
went together, as soon as the latter felt’ better. of
hi$ wounds, and personally verified that there .was
acut'.-place and could been seen clearly» where
Wheeler had seen Rose. Chesterfield!and. Charles
| Atkinson, C..C. Evans, and W. B. Watkins appar-
ntly. made a thorough .investigation. immediately
after the crime, for-they were satisfied with the
accuracy of:-Wheeler’s claims, Watkins’ and the}
older Atkinson found. two sets of tracks about five
SSS _Woods, Dempsey: Ward and Pharaoh Rowe
Spry ae TT rasea Lice
Lyards from the stump, one shged and one bare-
er Pare PPT
gone on foot to Kirby's Crossing’ which he left by]...
met his ‘wife and his wife's sister. Chaylie Ricks]:
had. seen’ Rose crossing the: road about this time,|.
branch: direction of shooting” before-he reached "
the road, and spoke to him about some ‘peaches. |}:
Charles -Daniels, from. Hawra and. enlarged. on|x'
to Chesterfield , Atkinson’s tobaceo barn’ where |.
~ An
Township; John--K,~ Ruffin, the Wilson Caunty },
riSe H
hf executi
' “there
| Wilson
presen
of and
mitted
true b
of Wi
forcs
feloni
| though
PD
'
2. sAlt
ing in
: the le
. Mewbd
when
D. P. §
. Clerk
“ good 4
; ty, to
nesdai
i with t
) Sworn
‘ren o
Jesse
“- Johns
; Lloyd
‘, Benne
|'Charle
+ Nancy
[ as wit
{issued
| John f
cents ¢
| Sherif
' for the
: Walter
day.
> On
the. Si
| arraigy
throug
his at
guilty
ing of
} Barnes
Lamm
| FR. Mec
chosen
Henry
[ afores:
} bill of
* - Sher
berlakd
was as
‘fore th
agains
gone b
to kee;
that d
_ attorne
motion
.they.n
EI dei ada tis
rmer and Wheeler came
nehester rifle about the
im if he had been invited
” meeting that Rose and].
hizing, which he denied.
w of no unkindness be-
ther of them. Rose claim-
ad otfered Farmer $5.00
the person who “started
Fand that the information
hk place on the Saturday
That morning, aceord-
of two Kenly clerks,
Edgerton and Song and
' Bros. and Kirby, John
hsuccessfully to purchase
m. There was apparently
Funtil about 3:30, when
heeler got into a buggy
o mentioned by Ransom
and headed for. Kenly.
Khen they passed J. ‘I.
i mile from Kenly, Kose
rway and the Thomas
. Farmer Wag unaware
; seconds of his life were
it
hackward
Fahh (aa /
En CASE (Cont.)
f Thomas’s sister-in-law,
vy was the first to leave
l estified at the Inquest),
Rose said at the trial that
pme about one and one-
ted about 4:00; he neg-
fdetails of his subsequent
fed less than two miles
‘horn Road, which was
here and the place where
bomas home was on the
Fon the murder site and
hn) was reached by taking
past Chesterfield Atkin-
4
e trial that about 4:00
darn in order to examine
f and happened to see
r-cotton patch from the
“90 or 250 yards away,
.2 a gun, Although her
huced at the trial, Mrs.
Watson not only before
in the woods near her
they .were Rose and
in the general direction
apparently trying to keep
while, between 5:00 and
homas Farmer and Ben-
r together in the bugsy
education but described
inch as “the pick of the }-
ore Justice of the Peace
Biement that was later
nay safely be considered
the noose around Rose’s
ad been talking about
lor thirty ytrds from the
2m past Atktnson’s to
‘e suddenly fired upon
21f received shot in the
e, while other buck and
the fact and body. In
shot were imbedded in
ler was unconscious, but
he buggy immediately
ands and brought the
within fifteen steps,
me to see Rose running
h gun in his hand, but
hestion at the trial that
In fire the shot. He got
carvied Farmer to his
use, but stopped at, Ate |.
enough to “report the
there present, and when
ing, I told them John
ound six o'clock in the
e hundred yards trom
Farmer died within a
taken into the house,
Prom his many wounds. ;
in Court that he heard ;
nded men in the bugzy,
rnd asked Wheeler who
as Rose, John.. Wheeler
the same thing at the
rt, soon saw his brother
nd heard him say-that
4 then ran off through
1 and Pharaoh Rowe
were also with ‘Wheeler .at,Atkinson’s:/ tobacco
barn, but at the Inquest: Ward claimed ‘that: Ben-
nett. Wheeler replied, to. their:“questions: that. he
did not know who had done it; and: Rowe remarked
about the ‘‘unusual loud report” (that woyld imply |
a heavy -load of. powder or shot or both). and
quoted Wheeler to the effect that “someone had |’
shot them and he did not know who it was,’’” Plein
is strangely conflicting testimony,
} Bennett Wheeler was very specific at the ‘triat |
'as to what he had seen as he stood at the front
! wheel of the buggy after stopping the msle: “Rose
iwasi right. plain; I saw him; he had just started
L; to run. I didn’t see anybody fire the gun, but I saw
‘the defendant run from the stump from where the
t'shot came. .. Defendant ran to the left througn
the woods. He had just got up and started when
I saw him. He was right at (the) place fixed to
shoot from. He had on a light colored hat and no
coat... The undergrowth is not very high, I saw
John Henry Rose run; I know it was Rose.”
J. T. Thomas averred at the Inguest that he had
gone on foot to Kirby's Drecsingt which he left by
6:30, going to Thomas Ward's!!! house where he
met his wife and his wife's sister. Chaylie Ricks
had seen Rose crossing the: road about this time,
and John Ricks (according to what Ransome Deans
heard) had seen Rose “coming in a trot from down
branch direction of shooting’ before he reached
the road, and spoke to him about some peaches.
On August 5;.1901, J. T. Revell wrote to Solicitor
Charles Daniels from. Hawra and. enlarged. on
Charlie: Ricks’s private statement that, as. he. was
driving home from the direction of Kenly;’ he saw
Rose in a white hat cross the Buckhorn Road from
the swamp and get some peache? at Kirby’s orchard:
-before_xoing west’ toward his home, —
Looking B Bag ward
By Hugh ug ee Ade
THE ROSE MURDER. CASE (Cont.). ~':
John, Henry Rose admitted at his trial that he /
saw John Ricks and his son in the road, and that
he returned to.J. T. Thomas’s house about sunset
(as Julietta Harper had said earlier) before going
Pharaoh Rowe told him of Thomas Farmer’s mur-
der. Rose is reported at the Inquest to have said,
“It wasn’t me, for I haven’t got harm enough
against a man.to kill him.” Thomas’s statement at
this time indicates that Rose went. home with
him after they had met at the tobacco barn, and
that they ate supper together before going to
Ruffin Ward’s house’ to spend the night, It was
probably about sunset’ that Mrs, Penina Watson
‘had ever spent the night there, and quoted the
latter. as saying, when told of the accusation being
circulated. against him, ‘‘God knows I haven't eet
enough against any man to kill him.” “
The next day was Sunday, July 28, 1901, “se the
Coroner’s Inquest-was held in the home of Thomas
Farmer “then and there lying dead” in Spring Hill
Township: John :K, Ruffin, the Wilson County
Coroner,. presided over'a Jury consisting of Chest-
Serfield. Atkinsan,,.James Moore, Joseph.T..Hinnant,
John T. Revell,. R: By Raper, and Levin Watson.
‘ Business was initiated with Hinnant’s. affidavit |
made. before Justice Revell that Farmer had been
“unlawfully done to death by a gunshot wound
‘inflicted by someone unknown to him. The Jury
| cones the various evidence and found. sufficient
| Rose that they: recommended his being committed
' to jail without bail.
i Shortly after the-Inquest, J. R. Watson testified,
j at the trial; Rose’s father carried him and several
cthers to his home and showed them that both
barrels of the: Defendant’s gun were rusty, J. D.
Aycock said that he saw it on the following Sunday
and that it “looked as though it had not been fired
for a week or two.” Although no intimation of this
‘was brought. out. during the investigations, it. is.
the feeling, of your columnist that’ the actual
murder weapon was the property of J. T. Thomas,
and that Thomas had cultivated the animosity of
Rose towards Farmer, but I am not prepared to say
that Thomas really wanted or believed that Rose
would actually carry out his threats of vengeance
against Farmer.
County officials and private citizens went, in
large numbers to examine the scene of the ambush,
Joa Evans stated in Court that he and. Wheeler
went together, as soon as the latter felt better of
his wounds, and personally verified that there,was
}}a-eut place and could been seen. clearly where
Wheeler. had seen Rose. Chesterfield!and. Charles
; Atkinson, C..C. Evans, and W. B, Watkins’ appar-
ntly- made a thorough ..investigation. immediately },
-after the: crime, for they were satisfied: with the
accuracy of..Wheeler’s claims,’ Watkins’ and the
older Atkinson found two sets of tracks, about tive
tyards. from: the stump, one shoed «and. Jone ‘bare-
‘footed, but did mot specify v.hich pair turned. to-
«wards the swamp: Watkins was the only one who
“mentioned seeing any ‘bloodstains on the ground.
Robert" Raper, also- of the same: group, admitted
that there was “no undergrowth between stump
and road to::-bother anybody,"!: but. denied. that.a
man' could be:seen through the woods fifteen. feet
‘from. the stump where the shooting was done,
> On July 29, 1901, Monday, Justice J.T, Revell
‘issued a warrant for ‘the arrest of John Henry
Rose, and Sheriff William D. P. Sharpe proceeded
to: lodge him in the Wilson County Jail unti} the
next meeting of the Superior Court. On September
Ist: Sharpe served gubpoenas of appearance on
-Isaac Evans, Barnes Watkins, Pharaoh Moore,
Perry Cooper, David Daniel, Ruffin Watson, Robert
Raper, Ruffin Ward, Hardy Renfrow, Henry Kir-
by, J..G.-Raper, Ruffin Raper, Joshua Aycock,
Elfjah Barnes, J. P. Bissett, and J. R. Watson, as
it was anticipated that their testimony might pe
* needed.
The case of Rose vs. The State of North Carolina
was No. 60 on the Docket of the Superior Court
for September 2nd, with Judge E. W. Timberlake
as the presiding Justice. Charles C. Daniels served
‘as State, Solicitor, while A. B. Deans wags Deputy
Clerk of the Superior Court acting for Clerk J. D.
Barden. The Grandjurors consisted of L. F. Lucas
(Foreman), James Lipscofib, B. M. Owens, Henry
. Hayes, D. W..Moore, Gray White, Willis Edmund-
son, J. E, Yelverton, Redin Lancaster, J. H. Evans,
and A. J.: Ellis.
These ‘‘good and lawful men of the County of
| Wilson, empowered,: sworn, end charged: at. the
present term of this Court to enquire for the State
of and concerning all crimes and offenses. com-
mitted within the body of said.County” found a
true bill that ‘John Henry Rose,‘late of the County
of Wilson, on the 27th day of July, 1951,. with
to Chesterfield Atkinson’s tobaceo barn‘ where |.
saw them for the last time that day. Ward noted |-
| at the trial that this was the first time that Rose |
cause to. believe the murderer was Joba Henry |
feloniously, willfully,
pSaeN did kill and murder-Thomas Farmer.’" . |.
Looking Se egg,
By Hugh Joh Chdd LIZ 1
THE ROSE. MURDER tae :
-Although John Henry Rose was apparently lack-
ing in financial backing, he had managed to secure
the legal services of Denis Worthington and S, G.
Mewborn, through whom he pleaded ‘not guilty”
when he was brought into Court by Sheriff William
D. P. Sharpe. The Sheriff was then directed by the
Clerk “to summon,a special. venire of seventy-five
good and lawful men, freeholders of Wilson Coun-
ty, to appear in Court at 9 o’clock A. M, on Wed-
nesday, September 4th, 1901 from which, together}. '”
. with the regular panel, a jury shall be d¥awn one
sworn for the trial of this. cause.’ ¢
- An order was also issued to. Sheriff W. M. Ware Py
ren of Nash County to subpoena J. H. High and
Jesse K. Finch; while Sheriff J. T. Ellington of
Johnston County was to subpoena Jesse Watson,
Lloyd Godwin, Henry Edgerton, Charlie Ricks, and} bas
and Sheriff Sharpe was to subpoena}...
J. H. Bell;
‘Bennett Wheeler, John Wheeler, John H, Bell,
i Charles’ Ricks, Pharaoh’ Rowe,’ Dempsey Ward,
» Nancy Ward, Ransom Deans, and John T.. Revell
as witnesses. On September 3rd Sharpe was also}:
issued subpoenas for.Ben Ferrell, Eli Ferrell,
John Ricks, and Charlies Ricks. The fee was thirty
cents each. On September 4th the Court ordered
‘for the State on Jesse Watson, Lloyd Godwin, and
* Walter Sir Wiebe which was scopmyunes that
day.
* - On September a 1901, Rose was ‘brought: Into
the Superior Court at the hour named and was
arraigned and called to trial. He contended: all
through the trial that he was not the man, and
his attorneys argued fora verdit of either not
- guilty or guilty in the first degree. A Jury consist-
: ing of, John T. Burriss, J. F, Ethrage, George W.
‘Barnes, John Mercer, W, E, Yelverton, Jacob L.
Lamm, W. E.-Moore, A. R. Taylor, J. F. Eason, KE,
F. McDaniel, D. B. Gaskins, and M,,H, Horf were
chosen, tried, sworn, and said that “the said John
;Henry Rose is guilty of the felony and murder
| aforesaid in manner and form as charged in the
; Dill of indictment”
“Sheriff Sharpe brought Rose before Judge Tim-
berlake on the morning of September 5th, Kose
was asked whether or not he had any cause where-
’ fore the Court ought not to proceed with a verdict
against.him, but could add nothing to what had
gone before, Tha Judge then ordered the Sherifr
_to keep him in custody until October llth and on |].-
‘that day to take him “to the place of common
i execution” between 10 a. m, and'2 p. m. to be
there hanged by the neck until he-be dead.”, The
attorneys for the defense immediately .made. a
motion for a new trial; but this was denied, Then
A they. made .an. appeal to the. Supreme,Court:of
_N. C. Boyette, David Hill, J. BE. Fulghum, J.T...
Moore, Amos Barnes, A. es re P. B. Siena
force and arms, at and‘in. the County: aforesaid, |.
and. of. his malice :afore-} -
Sheriff Sharpe to serve: Capias and Testificandum |}:
ay
et tee ee OS
'%
SS
r+:
~
—
SS ee
> J. H. High, W. B. Watkins, J, Av Wheeler, P. Cc.
‘North Carolina;; which was allowed...’
That.same* day. Rose made an. af
raed Justice Of the Peace .W.R...Wood that he. had
peen convicted of the “felonious killing’ of Thomas
Farmer and had been advised by counsel that she
nad reasonable cause for an appeal to the Supreme
a >-*court, but was “wholly unable to give security, or
. make deposit, for the cost of such apPeal.’' On Sep-
“tember 24th Judge Timberlake issued a Court Or-
der through Solicitor Charles C. Daniels to allow
Rose to appeal in forma pauperis to the Supreme
Court, “without executing. bond for the cost in
said appeal.” The tri#l then passed out of tocal
4 jurisdiction, bs ; Bye ise hed
| The Case of Rose vs. The State of North Uaro-
lina was No. 123 on the Docket of the Supreme
| Court for the August, 1901 Term; and was review-
ted by the Honorable Walter Clark, Brown Shep-
herd acted as Attorney General for the State and
Thomas S. Kenan as Clerk, while Denis Worthing-
ton and S. G. Mewborn continued as attorneys for
John Henry Rose. Judge Clark pointed out that
the weight of evidence showed a: motive, murder
from ambush, the credibility of Bennett Wheeler’s
damaging testimony, and Rose’s single detensive
contention ‘that he was. not the man who did it.
Since the Defendant was clearly guilty of murder
in the first degree if he fired-the shot, and since
the Jury should have acquitted him if they were
satisfied of his innocencé, which were the precise
merits upon which: the case had been tried in
Wilson County, Judge Clark considered it “singu-
lar” that the Defense Attorneys now claimed that
this was am error, (824. 8 NTS Sexe a
Judge Clark could find ‘no error,” so Governor
‘Charles B. Aycock signed the order of execution
on February 26, 1902; requesting of Sheriff Wil-}
liam *D. P. Sharpe that “at the usual place pre-
scribed by law in said County, you proceed to
carry said judgment into execution by hanging the
said JOHN HENRY ROSE by the neck until he ts|«
dead.” There was already a high fence around the
yard of the Wilson County Jail in the rear of the
present First National Bank Building, but wel..
fidavit betore | .
A WALTER RALEIGH BATTLE LETTER
bates +, 3, Headquarters Fourth Bri
meet ony ad
y My dear: Mothers 3 3. ES: Pay i
[ I received your “letter yesterday, and also
{trom brother by: Mr: Gorman: I’ wag very gla
| hear from you, as-I had ‘Rot. received any 4
“, from home in some time. He handed me the glo
| also} which you sent by him. Nothing ever cam
i better time in the world..I- haya been, trying
4 best to get a pair of some: kind .ever since
| weather set in, but could not. Gloves sitch as
‘gent me sell for $3.00-in this country; and e
ithing else in proportion.. The: last letter: thd
‘| wrote home, sent from Richmond by -Capt..
|Grimes to be mailed, was. from our.'camp 1
: Strasburg, Va. We left there on Friday,;.the 2
;and arrived here on’ Tuesday evening,.the 2
i making a march of over.one hundred miles in
days. It is the best marching that we-have ¢
done. It’s because we are going towards hom
‘reckon, that the.men did so well,’ There are b
, dreds of them, barefooted, and ice on the gro
i all day: General..Hill issued-an: order yéste
| requiring all the-barefooted mén to make sand
of raw hides with the hafr-on the inside. :[t
Swers the purpose very well. It’s a wonder the i
[had not:-been thought of sooner, before the
“suffered so much. Gorman says that Pat Si
- Will’ be:here today with the things ‘for the R
“ment, T hope he will be, for T need: my boots
. badly, also: ms pants,.I shall draw a pair of pa
{from the Regimental clothing, also a-pair of shq
‘ I bought mea Yankée overcoat, a very coniforta
‘one, ‘for $22.50,’a better coat than. our men dt
.at.mare money. 9 a ate MR ERG Ep
-.' We-are now’on our way to Hanover Junct
. Some fifty miles off. -We have stopped: here
. transport our sick on the cars ahead of us, tho
we have ‘been here going on two days, a lon
time than would pe required for that purpose,
have no idea how long we will Stay here, *
- what you write about your exchanging , farms
think you made a very good bargain, I wisi
. Nove
mber 27, 1862.
AES cae” a
lacked such a modern improvement ag a gallows,
which had to be erected especially for the affair.
It developed that Sheriff Sharpe was utterly
_ without experience in the art of ushering unwanted
citizens from this world into the next, and the cold
morning of February: 26, 1902, found him so].
shivery and unnerved that he was forced to take}:
several deep draughts of a popular. sedative that
was being concocted during that: period by a dis-| :
tiller of national reputation, There was consider-|
able public interest in -the occasion, but only
George Mumford, Jesse’ Mayo, Deputy Sheritt}
; Wells, and the two principal actors were permitted
within the walled inclosure, The only living wit-/
could be with you to help you fix it up, The b
are all well as could’ be expected. Virgil Stev
looks thin from diarrhoea. Tom. Stith: looks
fat asa pig. Buck Hansill is the same old “Buc
. The Marshbourns, that is, Sam, is well and tou
« Jim, I don’t recollect having seen for some tig
T really don’t know whether he is in the Compa
- or not. I did write to you and intended to send
. by Ed Gordon, but he left just before I carried
“Jetters up to the Company to give him, The a
time anyone leaves Wilson for the Company, ple4
-send me some kind of tonic bitters, I. need son
“thing of the kind. ; oe
ness ig John N. Pearce’ who. was not invited top
attend but who managed to. have some Private
Court House at the time.of the hanging. Sheritr
Sharpe sprang the trap at 10:24 a. m., and within
afew minutes the:case of Rose vs. The State had
been concluded ie :
Ok nee ae |
=
business to transact..im the upper story of the}:
. }
” Give. my, love. to all, and believe me as. ever
- ee Your affectionate son, ules:
“3 : WALTER...
Pnatan st Sats
ing Backward
‘Looking -Back
Dene eat
THE ROSE MURDER CASE. (Concl.). -‘
So far as I have been able to determine, the
total cost of the trial and.execution of John Henry
Rose for the murder of*:-Thomas: Farmer. was
$175.96, The Witnesses for the State (Jesse Wat-
:$on, Lloyd Godwin, W. A. Edgerton, J. K, Finch,
ard La
, Cooper, J G. Raper,’ Dempsey Ward,. Chesterfield
Atkinson, Wiley Howell, B, Ferrell, Robert Raper,
'C. C. Evans, J. .H,..Renfrow, J. T. Revell; Nancy
‘Ward, J. H. Bell, J. T. Evans, Bennett. Wheeler,
and Ransom Deans) came td $65.00; and the Wit+
; . hesses for the Defehse (J, D, Aycock, E. Harper, -
D, Daniel, Mollie Thomas, J. T. Thomas,’ Ruftin
'. Williams, J, R. Watson, El! Ferrell, J. G:.Raper,
H. Kirby, J. H. Ricks, J, Ricks, and Ruffin Raper)
came to $33.55. oe
' The reader unfamiliar
be interested in the natu
see at
‘with’ such. detalls may E
re of the miscellaneous
‘in the appealto. the. Supreme Court of North
: Carolina. They were: W. R. Wood, J.-P., 25 cents, } .
Sheriff J. T. ENington of Nash County 90 cents.
nt W. M. Warren of Nash County, 60 cents,
Solicitor C. ¢. Danie}s. $20.00, Seals 50 cents,’ Sub-
Poenas 35.70, Preparing Bill of Costs 25 cents, ; ”
m Postag 16 cents,’ 2. Orders 60. cents, Motion for} ;
, {Judgment 25 cents, Final. Judgment $1.00, Impan-
; jeling Jury 10x:cents, Indictment: 60 cents, Filing}. %
: {Papers 20 cents. Docketing and Indexing Indict-| “
: 25 cents, Docketing and Indexing: Judgment °
nts, 2° Caplas +$2.00,; 18° Copy: Sheets $1.80):
Ment
1133 ce
and
SS] inter
NUE
Appeal: to" Higher: Court, $2.00.°.1t' might y.be
esting. to. comparé.thase* costs ‘with those of
Milar murder case,exactly fifty years later! ~
hoa gS gay Rang Pa te hate! gr 40
herif W. D. P. Sharpe-o Wilson County $21.10, ~. Psrecelved> considerable assistance from’ .the late
‘
rare
ay * ok
i By. Hugh Johnston
: THE DEW FAMILY #))»
.«.. This.is one of the-very few Wilson County tamf
-; lies whose-relationships have been published in
~ book. Its principal author was Mrs, Ernestine De
‘: White of Greenville, South Carolina, and the: dat
"was. 1937.,It‘is an attractive volume and severd
; people of Wilson have copies. Many people remem
‘ber the newspaper stories on March 13, 1931, whe
Ella Wendell of:New York City died, reputed t
have been the wealthiest spinster in all the wor!
and. that -was:the beginning-of it all. Misa Wende
did not'seem to have any immediate relatives, s
the hunt-.was on! : 2 3RB poh
-. It:soon:.developed that her mnther was-a Dey
of Maryland, which caused all the Dews:in th
South to prick up their ears and yearn for. a litt]
of the more than fifty million. dollars involved
.{-Mrs. White was herself a descendant of the Mary
| land: Dews, and she attended the majority of th
‘tCourt proceedings, becoming so incensed over thé
genealogical liberties tgken by the. lawyers tha
Costs of $58.41 that preceded the $19.00 involved whe ‘yepotved to publish = book ahd te lpnys
permanent record of the true family relationships
‘Just: before it went to press, she secured fro
‘ycur columnist a hastily prepared manuscript
* tentitled ‘Dew Families of North and South Caro¥
lina,” which occupies pages 167/238 of her book
.‘Miss Bruce Evans. and William Jesse Taylor, Sr.
of ,Wilson,; and from Howard Preston, Dew. of
‘\Charleston,.South Carolina, 9 227. oP
She Dews of Wilson County had always been an
old and influential family, and their ignorance of
the ‘early: generations -lead them to assume that
_pthey might be of legal relationship to Ella Virginia
‘von Echtel Wendell.” They’ began to look. for family
Bibles, wiils,-and deeds-that might prove this. The
‘late Misys Mary Lillle Dew- had. the oldest. Bible,
J°‘ibutits récords were not ‘contemporary, being “The
CPST: Sd haat sith
jay
padabab dbs de asi iils COLA ahs aes ed aaa dd ae rh ae see
=
82 40 SOUTHEASTERN REPORTER. (N.C.
of his employés, with the remark, ‘If you; saloon keeper to sell them beer in violation
want to see a genuine gold-brick man, look | of the Sunday liquor law, for the purpose of
out of the window quick.” His faith in How-
ard was so small that he even suspected the
$10 bill paid him to be counterfeit. What,
then, was the duty of Garrett when his mind
first reached the conclusion that Howard was
a confidence man,—a ‘gold-brick man’? Clear-
ly, it was to order him out of his office, with
a threat to denounce him to the authorities.
Ile might well have gone farther. He might
tare informed the sheriff or the police of his
interview and of his suspicions, leaving to
them the duty of dealing with Howard and
the others. What he did-seas to put himself
into communication with the chief of police
at Richmond, Va. He wrote a long letter to
Patterson, accompanying it with a letter of
introduction of Mims from Lewis. All this
was to lay an elaborate plan to apprehend
the defendants, for whom, by the way, he
believed there was 2 reward outstanding of
$20,000. He then gave his letters to Mims;
and so solicitous was he that there should
be no failure of justice, and, incidentally,
that he should not fail of the reward, that
he gave Mims $20 or $25 for expenses. Thus,
his arrangement for arrest having been com-
pleted, he set about enticing defendants into
1 completion of the supposed objects of the
conspiracy. He bad previously, at his first
interview with Howard, so far fallen in with
Howard’s plans as to make two drafts of a
telegram,—one to use if the Indian were
amenable, the other in the event he were not.
On the second day after the interview with
Woward, Garrett proceeded to Greensboro to
keep the appointment. On arrival he saw
Mims and Patterson, to whom for 30 min-
utes he talked ‘pretty plainly,’ and was told
that the sheriff had the matter in charge.
here, also, he met Howard, and, after he
counted Howard's money for him, the two
drove out in a buggy to the place where the
Indian was camped. On this drive, Howard
showed signs of backing out, but Garrett
urged him on,—not once but several times.
he sheriff and Patterson passed them on the
road. Howard thought they looked suspi-
cious, but Garrett, mindful of his civie duty
and the reward, and the roll of bills he had
just counted, ridiculed the notion. The sher-
iff and Patterson were ‘just two fellows that
had been downtown and got drunk.’ Again,
Carrett said, “The next time you stop, Iam
going to take the horse and buggy and go
back to town.” When they arrived at the In-
dian’s camp, Garrett suggested that Howard
tell the Indian that he (Garrett) was Andrew
Garrett's brother. ‘You tell him I’m Andrew
Garrett’s brother.’ The alleged gold bars
were then produced, and just as the welgh-
ing was completed the officers closed In and
arrested Howard and Daley. This success
fully completed the first half of Garrett's
plan. . In Oom. Vv. Leeds, 9 Phila. 569, whicb
was a case where certain partics induced a
informing on him, Judge Paxson said:
For the relators it was urged that they were
engaged in a lawful object, to wit, the eD-
forcement of the Sunday liquor law. e
It was never intended that a man ghould vio-
late the law in order to vindicate the law.
* « * Immediately after the returning
from the scene of arrest, Garrett went to the
oflice of King & JXimball, attorneys at law,
and retained them to appear in the criminal
prosecution, and, also being still mindful of
his civic duty, to prosecute a civil suit for §2,-
000 against these defendants for an alleged
breach of contract. In aid of this suit he
eaused an attachment to be levied on the
ctothes, trunks, jewelry, and other personal
effects, including the roll of bills displayed
by Howard at their first interview, and which
he had kindly counted for Howard at Greens-
boro just before the arrest. Having secured
everything ip sight, even to their changes of
underwear, this good citizen leaves the state
of North Carolina to pay the expenses of de-
fendants in this sult, by compelling them to
defend in forma pauperorum.” Upon this
review of the testimony of the prosecuting
witness, as relied upon by the defendants, it
seems to me clear that his honor committed
fatal error in his charge, and that a new trial
should be granted.
I have given much attention to this case,
—more than my official duties would justly
allow,and much more than the defendants ap-
parently deserve; but I am firmly eonvinced
that there is nothing more dangerous than
to attempt to stretch established principles to
meet the supposed exigencies of particular
cases. I cannot do better than close this
opinion with the words of Chief Justice
Chase in the concurring opinion in Ex parte
Milligan, 4 Wall. 2, 132, 18 L. Ted. 281, 299,
as follows: “The crimes with which Milligan
was charged were of the gravest ebaracter,
and the petition and exhibits in the record.
which must here be taken as true, admit his
guilt. But, whatever his desert of punish-
ment may be, it is more important to the
country and to every citizen that he should
not be punished under an illegal sentence,
sanctioned by this court of last resort, than
that he should be punished at all. The laws
which protect the liberties of the whole peo-
ple must not be violated or set aside in order
to inflict even upon the guilty unauthorized,
though merited, justice.”
FURCHES, C. J. (dissenting). Without af-
firming all that is said py my Brother DOUG-
LAS in the elaborate and learned discussion
in his dissenting opinion, I cannot say that I
am satisfied that the defendants have had a
fair trial. In wy opinion, there is error, at
least, in what the judge said as to Garrett's
high character on the motion to separate the
witnesses, and in what he sald near the close
N. C.) STATE
of his charge to the jury,—that Garrett’s con-
pa dtsee>3 = a proper subject for unfriendly
en nb my opinion, there
piace should be a
———-s
(129 N. C. 575)
STATE vy. ROSE.
(Supreme Court of North Carolina. Dec. 20,
1901.)
HOMICIDE—EVIDENCE—TH i
DEGREE OF Nom one tank
1. In a prosecution for murder, evi
, evide
ema had threatened to kill Paar
= Se him messing around his still,’ and
. at, “if he caught him on his side of the road,
pede kill him,” was properly admitted. :
es ence that the revenue officers had
— efendant’s blockade still, and that de-
endant said deceased had reported the still
0 was admissible as showing motive.
dcr ba dno all the evidence tends to show that
= e killing was done by some one lying in
re and there is no evidence of any alterca-
- or a killing under other circumstances de-
endant must either be convicted of murder in
er _ degree or acquitted.
‘ e refusal of a new trial s
the verdict is contrary to the eet ey tke
evidence is within the discretion of the lower
coor _and is not reviewable on appeal.
Ph poses the court referred to the conten-
—— of defendant’s counsel, charged fully the
lew, secgptatears the evidence, and directed
fn FF soup ds attention to the principal question
nD case,—whether defendant was the man
bee Frat ggg ay os objection that
: 2 o state the def . :
tentions to the jury was a $7
Appeal from superior court, Wil
son -
ty; Timberlake, Judge. We
John H. Rose was convicted
‘ of
and appeals. Affirmed. mG
2. Worthington and 8. G. Mewborn, for ap-
peHant. Brown Shepherd, for the State.
i CLARK, J. The prisoner ts convicted of
1e murder of Thomas Farmer. There was
evidence that the prisoner had threatened to
kill the deceased “if he caught him messing
sroted his still’; that, “if he caught him on
oy =e the road, he would kill him before
cas a The witness further stated,
re a jection and exception by prisoner,
- e still was a blockade still, and that
the revenue officers came and took it; tbat
pL inn heard prisoner say that the revenue
— got it, and that the deceased was the
par Acai ——— the still to them. This
cette tae en as tending to show
Po scsans 4g Wheeler testified that he and the
sie sed were riding along the road in a
: iggy,-when they were shot from ambush
Tom the left side of the road; that Farmer,
ot wns on that side of the buggy, was kill.
ri pry witness was shot In the knee, breast,
= x and face; that he looked up, and saw
he prisoner run through the woods with a
. ROS
vy. ROSE. 83
the place and pointed out to others where he
saw the man run. “A bush was cut down
right by the side of the stump. It is about
15 steps from where we were shot to the
stump, ané about the same distance from the
place from where I saw the man run. Rose
was right plain. I saw him. He had just
started to run. I didn’t see anybody fire
the gun, but I saw the prisoner run from the
stump from where the shot came. He ran
to the left through the woods. He had just
got up and started when I saw him. He was
right at place fixed to shoot from. He had
on a light-colored hat and no coat. As soon
as I jumped out the buggy and stopped the
mule, I saw him run.” There was corrobo-
rative evidence as to the condition of the
spot,—that from the stump one could see to
fire at men in the buggy, a place having
been cleared out by cutting down the bush;
that a man running as described by witness
could be seen from the place where he said
he stood after getting out of the buggy; that
this had been proved by actual experiment;
that, standing where Wheeler said he stood,
a man raising up from behind the stump
could be seen and recognized; that the pris-
oner had that day tried to buy “double B"
shot,—such as were found embedded in the
buggy; that he was seen not far off that
afternoon; and the like. One of the wit-
nesses for the defense testified om cross-
examination that he saw the prisoner cross
the road three-quarters of a mile from the
place of the homicide about 5:30 o’clock of
the same evening Farmer was killed, and
that he had on a white hat and no coat.
Another witness for the defense testified he
had heard prisoner say that, if he knew
— had reported his still, he would whip
The “case” states that, after
fully the law of homicide, the Be mnerr
“The counsel for the prisoner, In his erae:
ment to you, sald that, under the evidence
in this case, you must either return a verdict
of not guilty, or guilty of murder in the first
degree; and the court charges you that this
is the law of the case.” Singularly enough
his counsel now contend that this fs eras
But we think it is correct, as is also the tuk:
ther charge, excepted to, that if, after con-
sidering all the circumstances carefully and
deliberately, in connection with all the evi-
dence in the case, the jury “are satisfied
after having done this, beyond a reasonable
doubt, that the prisoner slew the deceased
as alleged by the state, then it would be your
duty to return a verdict of murder in the first
degree; but, if not so satisfied, it would be
your duty to return a verdict of not guilty.”
All the evidence tends to show that the kill-
ing was done by some one lying in walt.
which comes expressly within the statutory
definition of murder in the first degree.
There was no evidence of an altercation or
gun in his band; that later he went back to
a killing under any other circumstances. If
2061-92-z *(UOSTTM) BUT % G20N Pp
[M) T[Ole) UWON pesuey *eqytyum *Aaueyq uyor *qsoy
ROSEBORO, Wilfred, black, hanged at’ Statesville, NC, on 9-10-1903.
"(Special to the TIMES=DISPATCH.) Charlotte, NC, Auge 1,-1903. =eeeSeveral hundred people
are now on the streets of Statesville awaiting the return of a negro who is. charged with
assaulting and murdering Mrs. Dolph Beaver of Lredell County, Friday night, when Mr.
Beaver and his small son and only child returned home from Statesville they found a de=
serted house and no trace of Mrs, Beaver, After a vain search over all the premises one
of Mr. Beaver's neighbors suggested that they look in the well, The well was covered as
usual and the bucket was on the covering. The bucket was lowered into the well,
and striking something was withdrawn, A lighted paper thrown into the well revealed
the dead body of Mrs. Beaver. Severe injuries were on the body, The throat showed
finger prints, the violence of a strong man, and the head was battered. It was presumed
that the injuries to the head had been made when the body was thrown into the well.
Today a coroner's jury decided that Mrs, Beaver had been outraged and choked to death,
and charged Welford Roseboro, colored, with the crime, Roseboro, whose character is
bad, left just after the crime was committkd for Halifax, this State, and was arrested
there last evening. His expected appearace in Statesville tonight on a belated train is
still keeping Iredell County people out of bed,"
TIMES-DISPATCH, Rychmond, Virginia, August 2, 1903 (1:3&))
"(Special Dispatch to the JOURNAL.) Charlotte, N°, Aug. 3. - Wilford Roseboro, charged
with outraging and murdering Mrs. Beaver in Iredell County last,week, was captured Sat-
urday night near Melrose, at the foot of the Blue Ridge mountains. He was brought here
last night and lodged in Mecklenburg County jail. Sheriff Summers, who effected Rose-
boro's capture, started with his SH#X#WaKX prisoner to the scene of the negro's crime,
but learning that several hundred men were awaiting his arrival with the intention of
lynching the negro, brought his prisoner to Charlotte for safekeeping," JOURNAL, Atlanta,
GA, August 3, 1903 (7 / 3-)
EXECUTION .
"(Special to the Times Dispatch.) Salisburyk N. C., September 10, 1903. - Wilford Rose-
boro, aged twenty-two years, was hanged in the jail yard at Statesville, N. C., to-day
for the murder of Mrs. Dolph Beaver, in July. The county commissioners had ordered that
the execution be in private as prescribed by law, but at the last moment, the surging
mass of people outside the enclosure tore away the canvas and fully 2,000 people eagerly
witnessed the execution, Roseboro maintained a stubborn stolid appearance until the HERB
trap was sprung by Sheriff Summers, He made no confession, except a statement soon
after his conviction in which he admitted his ghilt. His mother and relatives refused
to accept the dead body, and it was sent to Raleigh for dissection."
TIMES-DISPATCH, Richmond, Virginia, Septémmer 11, 1903 (1:2.)
CONFESSION.
"(Special to the TIMES=DISPATCH.) Charlotte, NC, Auge 15. = At Statesville today Will
Roseboro, the negro w o was convicted of the murder of Mrs. Dolph Beaver Wednesday, and
who has been sentenced to hang Thursday, September 18th, at ; o clock in the afternoon,
this morning confessed the crime, Yesterday afternoon, Rev. Ae Je Arthur, a well known
negro minister, visited the jail and had a long talk with Roseboro, te insisted that
Roseboro made a full conffegshen if he was guilty of the crime as charged. The negro
states that on the afternoon of the murder he was passing by the MX#M#8#XHMM Beaver home
and seeing some fruit on the trees in the orchard, he climbed the fence and was in the
act of pulling some apples when Mrs. Beaver called to him to get out of the orchard, 46
He says that he refitged to her in curse words and refused to go until he was ready, He
continued to pull the apples, and Mrs, Beaver came to the orchard after him, He made
some threat, whereupn she left returning towards the house. He, thining she was going
after a gun, followed her and just as Mrs, Beaver was in the act of going to the steps
caught her by the throat and choked her to death."
TIMES-DISPATCH, Richmond, Virginia, August 16, 1903 (h-h.)
SENTENCE.
"(Special to the Times-Dispatch.) Charlotte, NC, Auge 13. = At Statesville today, Judge
Allen sentenced Will Roseboro to be hanged Thursday, September 10th, at ) o'clock in the
afternoon. While the sentence was being pronounced Roseboro showed the first signs
of fright. He was exceedingly nervous and pear hardly stand during the trying ordeal.
The jury took the case yesterday afternoon at 6:0 0 clock and in 23 minutes after
retiring from the court room a verdict of murder in the first degree was renderede
WThe crime for which Roseboro will pay. the death penalty was one of the most heinous
in the criminal annals of the State. He assaulted Mrs, Dolf Beaver, and to hide his
crime murdered the woman dnd threw her body in a well near the Beaver Bee: TIMES -
DISPATCH, R, sa VEEEEEIAy August lh, 1903. (4/6. ). 2.
.
ROSS, Reuben, black, hanged at Lumberton, North Carolina, 2-9-1900.
"(Special Dispatch to The Journal.) Charlotte, Ne Ce, Feb. 10. = Reuben Ross, colored, was
privately executed at Lumberton, N. C., yester day for rape on a white woman, This case
is in some respects quite remarkable, He was convicted some months ago, and sentenced to
be hanged, An agitation arose over the affair in the section where the alleged crime was
committed, against his executioh, and upon appeals from some of the best citizens, Governor
Russell twice respited the negro, There were many people arrayed in the fight, one urging
a commutation of sentence to life imprisonment, on the ground that the crime was not rape,
while others were equally anxious that the Law should take its course, Numerous petitions
and other influences were brought to bear on the governor, and he gave them all his caree
ful attention with the result that he decided to take no further action. Ross protested
his innocence to the last, and met his death with apparently little concern, His neck was
broken by the fall, and he never moved, not even a twitch of the hand, He made a short
talk, declaring his infiécence of the pukimgcular crime for which he was to be hanged, and,
of course, was forgiven and was going straight to heaven. He was perfectly indifferent
and alleged that the prejudice of the low grade of the Caucasian race had brought him to
his fate, He said that his death would be a blessing to the negroes, and that no other
innocent negro would be carried to the courthouse and treated as he had been. His
XZXHHCOR denunciation of the white people who urged that he was guilty and ought to be
hanged was very severe, He was too much of a brute to realize what a crime he had
committed, Jt is currently reported this afternoon that he made a statement a few days ago
¥Yhat he was innocent of this crime, but was guilty of another for which another man had
been hanged, The report was investigatéd as much as possible, and it was found that the
statement had been made to a colored man, and that Ross siad he committed the crime for
which John Evans was hanged at Rockingham a few years ago. There is doubt about the re=
port, for the reason that it is probable that Ross was in the penitentiary when the assault
was made upon the young white woman at Rockingham for which Evans was hanged. However,
Ross' color and size fib the description of the person that assaulted the white lady at
that place, The case of Evans also @xcited a good deal of interest. He was executedifor
an assault upon a young woman while on her was to work in a cotton mill early in t he
morning." JOURNAL, Atlanta, Georgia, February 10, 1900 (1:64)
ee
hed PEEL TESS Cad istiaes rid LLG of Wid biebaa tibet hove
bhi
+
¢
}
rhs tx ea 8 A
$033 cha UG
e4
p
x
ubh
ee
isi ehab
St 40 SOUTHEASTERN REPORTER. (N.C.
the prisoner was the man who fired the fatal
shot, he was guilty of murder in the first
degree; and, if this was not shown beyond
av reasonable doubt. the jury should, and, un-
der the judge's charge, would, have acquitted
the prisoner.
The first ground of exception to the refusal
of a new trial is “because the verdict was
contrary to the weight of the evidence.”
This was in the discretion of the judge be-
low, and is not reviewable on appeal. Ied-
wards ¥. Phifers 120 Né6 C. 406,27. So...
nnd numerous eases there cited; Benton v.
Railroad Co., 122 N. GC. 1008, 30 8. BE. 333.
The second, fourth, and fifth exceptions
have already been disposed of. The third
exception is: “Because the court failed to
state the contentions of the prisoner in his
charge to the jury. The court did not state
the contention cf either side, other than ap-
pears herein, and no request was made that
it be done.” The charge does not appear
to have been sent up in full, but therein the
court refers to the contentions of prisoner's
counsel, charges fully the law, recapitulates
the evidence, and directs the jury’s attention
to the principal point, to wit, that the jury
must acquit unless satisfied beyond a rea-
sonable doubt that the prisoner slew the de-
ceased as alleged by the state; the uncon-
tradicted evidence being that the deceased
was killed by some one lying in wait. The
prisoner's contention was solely that he was
not the man. The jury declared themselves
satisfied by the evidence, beyond a reasona-
ble doubt, that he was.
We see no error of which the prisoner can
complain, No error.
STATE v. WILLIAMS.
(Supreme Court of North Carolina. Dee. 20,
; 1901.)
HOMICIDE—EVIDENCE—ADMISSIONS—QUES-
TION FOR JURY—OBJECTIONS—WAIVER.
J. An objection that there is no evidence to
warrant a conviction is waived, if not made
before verdict.
2. Though confessions sufficient to have war-
ranted conviction of murder in the first degree
were admitted, together with evidence of jeal-
ousy and threats, the court nevertheless prop-
erly submitted the case with instructions as to
murder both in the first and second degrees;
the question whether the evidence warranted
a conviction in the first degree being for the
jury.
3 Evidence of admissions made by one de-
fendant not in the presence of the other was
properly admitted against the former, where
the court charged that they could not be con-
sidered against the latter.
4. Admissions made by an accomplice out of
court, and not in defendant's presence, though
not admissible as substantive evidence against
defendant. may be considered by the jury as
affecting the credibility of the accomplice as
a witness in the case.
Appeal from superior court, Montgomery
county; Coble, Judge.
Dixie Williams was convicted of murder
in the second degree, and appeals. Affirmed.
Brown Shepherd, for the State.
CLARK, J. The prisoner) was convicted
of murder in the second degree. After ver-
diet he excepted because there was “no evi-
dence to Warrant a verdict for murder in the
second degree.’ There was no prayer to
that effect, and an exception that there was
no evidence is waived if not asked before
verdict.” State 4; Larris, 120° Ny C.-57T, 26
S. I. 774. and numerous cases there cited;
Clark’s Code (3d Ed.) p. 773; and other cita-
tions down to State v. Huggins, 126 N. Cc.
Tass. 35-83 FOG. . "Phere. were confessions
of the prisoner made to different persons
Which would have justified a conviction of
murder in the first degree, with evidence of
jealousy as a motive, and threats. There
was no eyewitness of the killing. The kill-
ing being shown to have been done with
a deadly weapon, and if the jury found thae
it was done by the prisoner, the law raised
a presumption that it was murder in the sec-
ond degree; and the jury may not have been
satisfied, by the confessions and other evi-
dence; of the circumstances necessary to
raise the offense to murder in the first de-
gree, and his honor properly left both as-
pects to the jury. Upon the evidence the
jury might very well have found the prisoner
guilty of murder in the first degree. The
evidence would justify such a finding. But
it does not lie in the prisoner’s mouth to
complain that he was found guilty of the
lesser offense. This
State v. Rose tat this term) 40 S. E. S&
where the evidence all established a killing
by lying in wait, and the sole question was
whether the prisoner did the killing, and the
judge properly told the jury, as argued to
them by prisoner’s counsel, that the prisoner,
if they believed the evidence, was guilty of
murder or nothing.
Bettie Caldwell was a codefendant, and cer-
tain admissions of hers not in the presence
of Williams were admitted as evidence
against her, with instructions to the jury
that they could not consider such evidence as
against Williams. In this there was no er-
ror.
During the progress of the trial the state
submitted to a verdict of not guilty as to
Bettie Caldwell, and placed her on the wit-
ness stand. His honor, in his charge, told
the jury that the evidence of the declarations
of Bettie Caldwell out of court could not
be considered by them as substantive evi-
dence, but the jury might now consider such
previous statements by her so far as they
tended to contradict or corroborated what
she has testified upon the stand. This is
well-settled law. Burnett v. Railway Co.
120 N, ©. 517, 26 8. LE. 819, and numerous
cases there collected.
No error.
ix not like the case of}.
N.C) STATE y. CALDWELL 835
STATE vy. CALDWELL,
‘Supreme Court of North Carolina. Dee. 20,
1901.)
HOMICIDE—NOLLE PROSEQUI—MURDER IN
SECOND DEGREE.
1.In a prosecution for murder, a notice filed
by the state that a conviction of murder in the
first degree would not be asked for, but only
tuurder in the second degree or manslaughter,
ed not entitle defendant to his discharge on
Se ground that such notice was equivalent to
nol. pros. of the charge of murder in the
rst degree.
_ 2. Defendant and deceased had had some dif-
fienlty one morning, and later in the day,
while deceased and his brother were passing
the house where defendant was, and inquiring
for him, defendant took a gun from a rack,
und shot deceased through a crack in the
house. Held, though making a case of murder
in the first degree, a conviction of murder in
the second degree was also supported.
Appeal from superior court, Madison coun-
ty; Moore, Judge.
Ilezekiah Caldwell was convicted of mur-
der in the second degree, and appeals. Af-
tirmed.
W. W. Zachary, for appellant. Brown
Shepherd, for the State.
FURCHES, C. J. Indictment for murder.
At the trial, and before the jury were called
or impaneled, the solicitor, with the permis
sion of the court, caused the following entry
to be made upon the docket: ‘State vy. Cald-
well. In this case the state files notice (the
prisoner being present in open court) that a
verdict of guilty of murder in the first degree
will not be asked for by the state, but only
murder in the second degree or manslaugh-
ter. Gudger, Solicitor.””. Whereupon the pris-
oner, by his attorney, Mr. Zachary, moved
for his discharge upon the ground that the
order of the solicitor was equivalent to a
nol, pros. of the charge of murder in the
‘rst degree, and, that being so, he was en-
titled to his discharge. The motion was re-
fused, and the prisoner excepted, and the
iis? was proceeded with. This exception has
been virtually disposed of in the case of State
Se Hunt (at last term) 128 N. C. 584, 38 S. E.
43. In that case the solicitor, in a more
informal manner than the solicitor did in
this case, before the commencement of the
trial, said he would not ask for a verdict of
murder in the first degree, and the trial was
then proceeded with; and in selecting the
jury the prisoner demanded the right to chal-
lenge 23 jurors. This demand was denied;
the court stating that, the solicitor having
stated that he would not ask a verdict for
murder in the first degree, the court would
treat It as a nol. pros. as to that offense, and
would so charge the jury, and, so treating
it the prisoner was not on trial for his life.
The prisoner in that case was convicted of
manslaughter, and appealed upon the ground
that he was not allowed 23 peremptory chal-
lenges. This court sustained the ruling of
the judge in that case upon the ground that,
although the charges of murder in the first
degree and in the second degree and man-
slaughter were all in the same pill of indict-
ment, and in one count, this was specially
provided for in the Acts of 1893, c. 85; that
the offenses were distinct, and it was as if
they had been charged in separate counts.
The case of State v. Hunt is the same in
principle, and this case must be controlled
by it There was no error in refusing the
mnotion.
During the progress of the trial there were
several exceptions taken by the prisoner to
the ruling of the court upon questions of evi-
dence. We have examined them all, and
find them to be without merit, and not of
sufficient importance to demand a discussion.
The prisoner asked several prayers for in-
structions, and some of them were not given,
and he excepted. T’o understand these pray-
ers, it is necessary to state briefly some of
the facts ag shown by the evidence: The
prisoner and the deceased were young men,
and in the morning of the day of the homi-
cide (Sunday) they had a personal difficulty
at a church a few miles from where the
killing took place. At the time of the killing
the prisoner and his brother (now dead) were
at the house of one Lewis. The deceased,
Payne, and his brother passed the house of
Lewis, and inquired for the prisoner and his
brother. After passing the house of Lewis
for a short distance, they turned back, and
passed the house of Lewis again, going in
the direction from which they came, when
they inquired for the prisoner and his broth
er. During this time the prisoner had taken
Lewis’ gun from the rack and loaded it, and
shot the deceased through a crack in the
house. And the prisoner contended that this
was murder in the first degree, and as the
solicitor had entered a nolle prosequi, or
what was equivalent thereto, the prisoner
could not be convicted of murder in the sec-
ond degree, and asked the court to so charge
the jury. The court refused and the prisoner
excepted. We agree with the prisoner that
this evidence, if believed, made a case of
murder in the first degree. And we are ata
loss to know why the solicitor declined to
ask a conviction of murder in the first de-
gree. We must suppose that he had reasons
for so doing which we have no knowledge
of. But we do not agree with the prisoner
that the evidence did not also prove murder
in the second degree. The Jaw of murder in
the second degree, since the statute of 1893,
is the same that was murder before that
statute. State v. Booker, 123 N. C. 713, 31
S. E. 376. And before that statute, where
the killing was admitted or shown to have
been done with a deadly weapon, the law
presumed malice, and, nothing else appear-
ing. the killing was murder. This is the law
as Inid dawn by Sir Michael Foster in his
Crown Pleas, and has been the law in this
state ever since we have had a government.
It may be fortunate for the prisoner tuat
RUCKER, James, black, hanged Asheville, Ne Ces on August 20, 1907.
"(Special to the TIMES-DISPATCH) Raleigh, Ne Cey May 21, 1907eeeeThe Supreme Court is
notified that the appeal in the case of State vs. Rucker, from Asheville, has been with-
drawn, presumably in order that an effort may be made to procure from Governor Glenn
a commutation of the death sentence to life imprisonment. Rucker, a big, black negro,
was convicted of criminal assault on a six-yeareold child and sentenced to be hangedee."
TIMES-DISPATCH, Rychmond, Virginia, May 22, 1907 (5¢l.)
Ae Michel Cop hoki ie
Ae wetele ti aol Beg
party piel Mite
"la tD if hes a
BeL<T90l, $3
RUFFIN. John
"Burlington, Ne Cay Feb. 1, 1901. = John Ruffin was ‘.
hanged near here about noon today for criminal assault, %—,
The execution was public but the crowd was small, The
'condemmed man made a speech on the gallows inviting his
listeners to meet him in Heaven." TIMES, Richmond, Vas, |
2-2-1901 (2/5.) |
nuffin was a 16-year-old black youth and his
Victim was a l0-year-old black girl. Accounts
of crime or execution do not give age, but
account of commutation effort does, HA LeIGH
NEWS AND OBSERVER, Jan. 5, 1901 (5/2.)
RUFFIN, John, 16, bl, hanged Burlington, NC 2/1/1901.
He Pays ha Penalty For
C; imidal Assault
His Vietim aL
Joh. Ruffin Rewpital. |
United Stat 8 Deputy ; Marshal Mitch- ‘ | a . 2 a: Ja aa |
ell saw Governor Thee Wednesday in (Special Sere ond Observer.)
the interést af John Ruffin, the 16-year- 'Purlington, N. C., Feb..1.—The young
old negro who was un er at By to be rapist, John Ruffin, was hanged near here
Hanged at Grahatn. e itchell says| the -about 12 jo’clock today by Sheriff L. B.
| people of Graham desir ‘Ruffin’s sentence : McAdams. '
pment. Ruffin’s ‘The execution was public but owing to
froommuted to life impr
victim is a 10-year-old) girl.: A regpite ' the fact that Ruffin had been twice Tre-
‘unti! . Janua 25th was given| to spited the crowd was small. The- con-
‘strengthen it e. petition: | ps ; | demned mon made a specch on the. gal-
Jows, inyiting his hearers” to- meet
him in Heaven.
Ruffin yas convicted of rape upon the
“person of, a little uegro girl, Gertrude
Keens by even at the November term of
—_ Alamance}court.. He was sentenced to de:
4 © executed jon January 4th, but was re-
| | spited by
Governor Russell to January
; 25th. Then a further respite was. given
‘by. Gov. Aycock till today. -
(S - L ~The co munity was muck excited over
the’ questipn as to whether-he should suf-.
| fer the full penaltyiiprescribed by the
4 law.for hig crime. His youth and ignor-
ance wer pleaded in extenuation, but in
vain.
<-2-/90/
C-4
Neus + OBSERVER
iar ae
ABSTRACTS FROM THE NORTH CAROLINA JOURNAL
HALIFAX, NORTH CAROLINA
1792-1794
VOLUME I
ts,
RAYMOND PARKER FOUTS
(LFF
