44 S.E.2d 482 | N.C. | 1947
Criminal prosecution upon indictment charging the defendants with the murder of one George Bowman.
The defendants were prisoners serving sentences under the supervision of the State Highway and Public Works Commission, and had been assigned to a prison camp in Henderson County.
The evidence tends to show that the defendants conspired to escape and that it was agreed to overpower a guard, obtain his rifle and use the rifle, if it became necessary, in order to escape. On 3 March, 1947, the defendants decided to carry out their plan of escape. They were working in a rock quarry and those in charge were preparing to set off a charge of dynamite. The prisoners were moving out of the quarry. Defendant Brown first entered a guard shack occupied by the guard, Gordon Morgan, the defendants Brooks and Munn followed him into the shack. The guard was overpowered and his rifle was taken by Brooks. In the struggle the guard was knocked down an embankment 15 or 20 feet from the guard shack into a gravel bin. Brooks fired upon the guard and the guard returned the fire with his pistol. In the meantime another guard, George Bowman, was informed of the trouble and started towards the shack previously occupied by Morgan. The defendant Brooks, using the *70 seized rifle, struck the barrel through a hole in the guard shack and shot and killed Bowman. The defendants then escaped, carrying the seized rifle with them. After the defendants were recaptured, according to the testimony of J. E. Braswell, the officer in charge of the Fugitive Office of the State Prison Department, the defendant Munn told him "They had agreed to make the break and that Brooks would use the gun and that Brown would make the attack . . . that Brooks used the gun because he knew how to operate it," and that Brooks admitted he was the gun man.
Verdict: Each defendant guilty of murder in the first degree. Judgment of death by asphyxiation was imposed upon each defendant. Defendants appeal, assigning error. The defendants Brown and Munn except to the failure of his Honor to charge the jury on manslaughter.
The exception does not properly present this question. There was no request for such instruction. No exception has been entered to any portion of the court's charge to the jury. And there is no exception reserved under the provisions of G.S.,
These defendants contend that they did not knowingly aid or encourage Brooks in the commission of this homicide. They insist they were only engaged in an escape, which is a misdemeanor, G.S.,
Stacy, C. J., in speaking for the Court in S. v. Smith,
Moreover, where two or more persons are present, aiding and encouraging one another in a common purpose which results in a homicide, all are principals and equally guilty. S. v. Williams,
The exception to the refusal of the court to grant the defendant Brooks' motion for judgment as of nonsuit, cannot be sustained. When an intentional killing with a deadly weapon has been established, the law implies malice and the State cannot be nonsuited. S. v. Vaden,
In the trial below, we find
No error. *72