State v. . GrahamState v. . Graham
The prisoner was indicted for the murder of Paul W. Johnson and was convicted of murder in the first degree. From sentence of death he appealed, assigning exceptions, which appear in the opinion.
The deceased lived in Raeford and had a farm in the county six or seven miles distant. The homicide occurred at the farm about 2 p.m., 12 August, 1927. F. P. Johnson, brother of the deceased, had a grist mill which was not very far from the prisoner‘s house. Early in the morning on the day of the homicide the prisoner saw the deceased at
Alice Campbell, a witness for the State, said: “I live on Raeford Road on the right side, going from Raeford, left side coming from Fayetteville. That is what is known as Raeford Puppy Creek Road. House is just short distance from road. I was home on 12 August, 1927. Was there about 2 o‘clock. I saw Hector Graham and his wife pass there in an automobile. Hector was sitting on side of car next to my house. His wife on other side. Hector was driving. I was sitting on front piazza, just below my door, i.e., on side next to Raeford. I saw Mr. Johnson. He was at the lot. I knew he was in the lot, but I did not know at what point. I saw him when he was called out from the lot. Hector called him. He had just stopped. Car turned a little into the other road, but stopped. The engine of car was somewhere about the stump. I could not see driver of car when it stopped. I could see the other person in front sitting. The other person was Hector‘s wife. I could hear the engine of car to the house. If the engine of car stopped, I did not pay any attention to it. Hector called Mr. Johnson. I heard the Paul part; I don‘t know whether he Mr.‘d him or not. Mr. Johnson went to car when Hector called. Mr. Johnson had his hands in his pockets. He went up the Mail Road to car. When he went up to car he put his foot on running board. I could see his shoulders. Could not see any part of him except his shoulders. I did not see anything happen. The next thing I heard happen, I heard pistol fire, and right after the pistol fired there was a little racket made, a noise like a child, and then another pistol fired; it was just all done right at once, almost. Pistol was fired at car. I could see Hector‘s wife all the time. I could not see her move. I could have seen her if she would have moved. I don‘t know whether Hector‘s wife shot pistol or not, but I did not see her move. Mr. Johnson came running, staggering back around the car and fell. Mr. Johnson wasn‘t at car any time before shot was fired — just a few minutes. I never could estimate time. There was nothing between car and my house to obstruct the view. Car drove off immediately after pistol fired; car was going when Mr. Johnson fell. I never heard any fussing at car. I never saw any fight. I never saw Mr. Johnson move from the position he was in at car until pistol fired. He was there, looking right at the car and them.”
The prisoner testified in part as follows: “I knew Mr. Paul Johnson all his life. I know all of the family. I worked with his father. I had known Mr. Paul 27 or 28 years. Mr. Paul Johnson and me, nor any of his family, ever had any trouble. I never had any ill-feeling towards him or any of his family. I saw Mr. Paul Johnson on 12 August. I first saw him on that day at Mr. Fred Johnson‘s mill, early that morning. . . . I left Mr. Curtis‘s to go home, and going from Mr. Curtis‘s to
Q. Why did you shoot Mr. Johnson? A. “I don‘t know. I just naturally was addled. He knocked me and assaulted me with the stick, and I hardly knew what I was doing, and then whenever he hit me he knocked every bit of the water in me out.”
Q. Did you stop there for the purpose of having any fight or altercation with Mr. Johnson? A. “Not a bit in the world. I never did have no difficulty; I liked them all. I never did have no trouble with none of them at all. That is the truth. I always liked them all. I worked with them all. When I left there I went home. It‘s a wonder I did not tear up the car going home. I didn‘t know what I was doing; I was hurting so bad. I did not stay at home no longer than to open the door and get out. I went to Fayetteville on Monday morning and surrendered to Sheriff McGeachy. I tried to make my way there before, but could not get there. A colored man by the name of Bell, who lives about nine miles from Fayetteville, carried me to Fayetteville. I went to his house and asked him to carry me to Raleigh or Fayetteville so I could surrender, and he carried me to Fayetteville. When I surrendered to Sheriff McGeachy my face and eye were swollen, and the sore and
Laura Graham, the prisoner‘s wife, testified: “I was at Mr. Curtis‘s 12 August. Was there to help wait on his wife. My husband came there that day. I left there with him. When we left there we went down the highway leading towards Raeford and turned and detoured and came around by Mr. Johnson‘s mill, and Mr. Paul Johnson‘s farm. That was the only way we could travel going home. The main highway was under construction. I saw my husband when he came to Mr. Curtis‘s. He was driving a car. Did not see him have any pistol. While he was there did not say anything to him about having broken into my trunk and getting a pistol. Only thing I said to him, `I will be ready in a few minutes.’ We then left there as soon as I could lay the baby down and give the lady some milk. In going from there home we would go by Mr. Johnson‘s farm. Saw Mr. Johnson when we passed the farm. He was at the shelter when I first saw him. My husband stopped the car and called Mr. Johnson. Mr. Johnson came to car on left side. My husband did not say anything to Mr. Johnson as he came to car. When Mr. Johnson walked up to the car, he reached over and looked into the car, and said, `What is in that bag there?’ and I just said it was my bag where I had been off on some work. Mr. Johnson then says to my husband, `Did you call me Paul?’ and Hector replied, `Yes, sir, I did; isn‘t that your name?’ Mr. Johnson says, `You _____, don‘t you ever call me Paul any more,’ and he grabbed the stick out of the car and struck him. This is the stick that he struck him with. The stick was standing behind the seat in the coat rack. Don‘t know how many times he struck him. It frightened me so, I threw up my hand and began crying. Was not looking at my husband when he shot him. I heard the shots; could not say how many, I was so frightened. The licks and shooting occurred at the same time. As soon as shooting occurred my husband drove off immediately. Didn‘t know when we left there how badly Johnson was hurt. We went direct home. Did not hear my husband make any statement about Mr. Johnson that day. Have never heard him make any threats against him. He always spoke nice about him to me. I did not know of any trouble between my husband and Mr. Johnson.”
Dr. G. W. Brown, the coroner, testified that he had examined the body of the deceased and had found two wounds — one in the left hand, indicating powder burn, and the other between the second and third ribs half an inch above the base of the heart. Both were pistol wounds, and the latter was fatal. The deceased died instantly.
The evidence is voluminous, but the foregoing is sufficient to give the background of the legal propositions referred to in the charge. Other evidence is set out in the opinion. Testimony offered in corroboration, or in support or disparagement of character is omitted. In the outset of his argument the prisoner impeaches the legal sufficiency of the verdict and judgment on the ground that the trial court was without jurisdiction to hear and determine the question of his guilt. The position is predicated on
We find in the record a certificate, dated about a month after the trial had been concluded, that the resident judge had been “available to hold the court.” This Court has jurisdiction to review upon appeal any decision of the courts below upon any matter of law or legal inference (
At no time during his trial did the prisoner assail the validity of the commission; his challenge first appears in his assignments of error. In S. v. Hall, 142 N.C. 710, 713, it is said that jurisdiction is never applied to any question touching the existence of the court itself and is not conferred until the court designated to exercise it has been brought into being according to the mode prescribed by law. If it be granted that the prisoner intended to say, not that the court, if legally organized, had no jurisdiction of the crime, but that it was called and organized without authority of law, his position is none the more favorable. In holding the court Judge Townsend served in the capacity of a judge de jure; pursuant to constitutional and statutory authority he was in the exercise of his office as a matter of right. But if he had been judge de facto as defined in S. v. Lewis, 107 N.C. 967, his duties, discharged under color of a valid appointment, would have been conclusive, not as to the State perhaps (33 C. J., 971, sec. 101), but as to the public and the rights of third parties. In People v. Staton, 73 N.C. 546, the Court observed, “And we think it may now be considered as settled by our own decisions and by the English and American cases and by the text-writers, that there is no difference between the acts of de factor and de jure officers so far as the public and third persons are concerned.” The result is that in any view of the case the prisoner‘s first exception must be overruled. Burke v. Elliott, 26 N.C. 355; Gilliam v. Riddick, ibid., 368; S. v. Speaks, 95 N.C. 689; S. v. Turner, 119 N.C. 841; S. v. Hall, supra; S. v. Wood, 175 N.C. 809; S. v. Montague, 190 N.C. 841.
The second exception relates to the testimony of the witness Evers. He said that about ten days before the homicide the prisoner had told him that the deceased “had had some talk about him, and he was going to get even with him.” It is contended for the defense that these words do not import malice, and that without them there is no evidence of such malice as tends to establish premeditation and deliberation. The prisoner‘s declaration was in the nature of a threat; hence the testimony was not incompetent. In S. v. Foster, 130 N.C. 666, evidence of a threat made a month before the homicide was held admissible as tending to show malice and as “some evidence” of premeditation and deliberation. If the evidence was competent for any purpose there would have been error in excluding it. S. v. Burton, 172 N.C. 939; S. v. Johnson, 176 N.C. 722; S. v. Baity, 180 N.C. 722; S. v. Vaughan, 186 N.C. 759.
Mrs. Doss Bowen was permitted to testify that a short time before the homicide the prisoner took a pistol from his pocket in her presence and in the presence of his wife, whereupon the latter addressing her husband remarked, “You broke in my trunk and got it.” This was
The deceased was killed about 2 o‘clock on Friday; on Monday morning the prisoner surrendered himself to the sheriff of Cumberland County. The State offered evidence to show that search had been made for the prisoner immediately after the death, and thereafter without break until the first of the next week. The purpose was to show flight, and flight is a circumstance to be laid before the jury as having a tendency to prove guilt, although as his Honor correctly instructed the jury, it is not evidence of premeditation or deliberation. S. v. Foster, supra; S. v. Tate, 161 N.C. 280. Fruitless search may be shown by laymen as well as by officers of the law.
It is urged for error that his Honor failed to state the evidence in a plain and correct manner and to declare and explain the law arising thereon. C. S., 564. In reference to the first of these clauses it may be said that recapitulation of all the evidence is not demanded and that the requirements of the statute in this respect are met by presentation of the principal features of the evidence relied on respectively by the prosecution and the defense. An omission from the charge of an important feature of the evidence should be called to the attention of the court before the verdict is returned. This opportunity was given the prisoner‘s counsel, the judge inquiring near the close of the charge whether he had overlooked any of the contentions. Only one was suggested, and it was submitted to the jury. S. v. Grady, 83 N.C. 643; S. v. Pritchett, 106 N.C. 667; Boon v. Murphy, 108 N.C. 187; S. v. Ussery, 118 N.C. 1177.
Concerning the necessity of declaring and explaining the law it has been held in quite a number of cases that nothing more is required than a clear instruction which applies the law to the evidence and gives the position taken by the respective parties as to the prominent and controlling features which make for the ascertainment of the facts. We adhere to the well settled principle so clearly enunciated in Merrick‘s
The seventh and eighth exceptions are so obviously untenable as to require no comment; as to the ninth we find no evidence to which the doctrine of cooling time should have been applied; and in the instruction as to retreating to avoid a menaced encounter we have found no error of which the prisoner can reasonably complain. The eleventh and twelfth exceptions also are without substantial merit. In the recital of the prisoner‘s contentions the cause he assigned for his conduct after the homicide and for leaving home was clearly stated. If there was error in setting out the contentions which are the subject of the thirteenth, fourteenth and fifteenth exceptions, it should have been pointed out when corrections of this character were requested by the court. S. v. Ashburn, 187 N.C. 717; S. v. Reagan, 185 N.C. 710; S. v. Little, 174 N.C. 800.
The exception last to be considered was taken to the court‘s refusal to withdraw from the jury the question of murder in the first degree. It is argued that there was no evidence of premeditation and deliberation; but we cannot concur. The evidence of self-defense was at least subject to doubt. The prisoner said that when he arrived at the farm the stick with which the deceased assaulted him was “in the car between the back of the front seat and the coat rack.” His wife testified: “I did not see the stick any more after the shooting until after I got home. Next time I saw it, it was between the coat rack and the seat, the same place it was before the shooting.” This, and evidence of the threat, of the way in which the pistol had been procured, and of circumstances explained by two eye-witnesses, if believed by the jury, formed a sequence of incidents fully warranting the finding that the death of the deceased was the result of a preconceived purpose. S. v. McCormac, 116 N.C. 1036; S. v. Dowden, 118 N.C. 1145; S. v. Daniels, 164 N.C. 464; S. v. Lovelace, 178 N.C. 762.
In reviewing the several assignments of error we have not been inadvertent to the gravity of the judgment. In the interest of human life we have examined the exceptions, the evidence, the instructions, the entire record, and we are unable to see wherein the prisoner has just and legal ground for demanding a new trial.
No error.