State v. Cain
| Decision Date | 12 November 1919 |
| Docket Number | 346. |
| Citation | 100 S.E. 884,178 N.C. 724 |
| Parties | STATE v. CAIN ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Surry County; Lane, Judge.
Joe Cain, Joe Bowles, and Gardner Cain were convicted of murder in the first degree, and they appeal. No error.
In view of evidence of threats and preparation of weapons and concerted attack simultaneously made with firearms late at night by defendants firing simultaneously, the judge properly instructed that there was no evidence of manslaughter, and might have gone further and instructed that there was no evidence of murder in the second degree; there being only one question in the case, the identity of the parties.
Folger Jackson & Folger, of Mount Airy, and J. C. Biggs, of Raleigh for appellants.
The Attorney General and Assistant Attorney General, for the State.
There was evidence of motive that the prisoners were operating an illicit still in the vicinity of Riley Easter's home, and that the deceased and his son, James Easter, knew of it, and that the prisoners accused Riley Easter and his son of giving information which caused the still to be captured and destroyed; that they made threats and sent him a message that if it was not replaced there would be trouble, and there was evidence that Walter Cain, son of Joe Cain, went to the Easters and gave him notice that the other defendants were enraged at his having had the still taken, and unless put back by Sunday night they would do some injury or violence to him. There was evidence that the still was not returned by Sunday night, and that on the next night Riley Easter was slain. There was also evidence that one Andy Martin was induced by John Hicks, one of the defendants, to go to Easter and warn him to put the still back. There was much other evidence to the same purport, and that on the Monday night in question Joe Bowles, Joe Cain, Gardner Cain, and John Hicks were seen and identified by the inmates of Riley Easter's house and also by Riley Easter himself; that they knew these men, having lived in that community for some months, seeing them frequently; that these men had come to Riley Easter's house often and spent much time there; that on this Monday night Mrs. Easter and her daughter were out of doors, it being a moonlight night, the moon well up, and about 10 or 11 o'clock at night, as they testified, these four men came up near the house; one of them testified that she knew Joe Cain's voice; Mrs. Easter and her daughter Mrs. White, ran to the house, and as they got in the door they exclaimed that these four men were out there, calling them by name; the son, Jimmie Easter, was in the house, and Riley Easter went to the door, thinking it was revenue officers, and said, "Hello," and invited whoever it was to "come in"; that there was then the simultaneous report of four guns, and a bullet struck Riley Easter, entering his body and subsequently causing his death; that at that time it was so bright that Riley Easter was able to recognize the men out there; that the firing became rapid, from four guns, and Mrs. Easter testified that she saw flashes coming from four weapons of some kind in the hands of these four men; that she was able to recognize the three defendants who were convicted and Walter Cain; that a number of shots were fired into the room or side of the house, some going into the room or side of the house, and that these men then made a rush for the door; that James Easter then got his pistol and fired two shots; that the inmates closed the door to keep the assailants out, but the door failed to close fully, leaving a sufficient opening to see out; that these men were pushing against the door, and Mrs. Easter saw Joe Cain appearing through it, seeing him plainly; that one of her daughters from another door had also seen these men and recognized them, and other inmates of the house say they saw these men and identified them. One of the women said, "You have killed pap and my baby." Then these men got off the steps at the door and went away. There were a large number of shots fired, as appeared by the bullet holes on the door facing and door as testified to by officers and other persons. A shotgun and pistol were found next day at Walter Cain's, and there was also evidence that Gardner Cain owned a repeating rifle and a pistol, and that Joe Cain also had guns and pistols. These weapons which were found at their houses, or known to have been owned by them and found in their vicinity, were put in evidence.
Riley Easter stated to Dr. Hollingsworth when he first came in that he was going to die. Though the doctor told him he was not, Riley Easter repeated the statement that he was going to die and said that these men, naming the defendants and Walter Cain, had killed him. He said they were all shooting. The judge found as a fact that Riley Easter made these statements under an impending sense of death, and admitted them as dying declarations, with proper instructions. Riley Easter died 10 a. m. after the night he was shot.
There were exceptions to the admission of evidence and to some two alleged errors in reciting the contention of the parties, but they do not require discussion. The evidence shows that Riley Easter, notwithstanding the remark of the doctor that he would not die, repeated that he would, and subsequently made his declaration that these prisoners had shot him in the manner above detailed. The doctor testified that he thought then Riley would die. The two alleged errors in the recital of the evidence by the judge are very slight, and he told the jury that they must take their own recollection of the testimony.
The two exceptions chiefly relied upon are the following statements in the charge:
"Now, if the jury shall find from the evidence in this case, beyond a reasonable doubt, that these defendants, Joe Cain, Gardner Cain, Joe Bowles, Walter Cain, and John Hicks, formed a common design and a common purpose to go to the house of Riley Easter and assault him with guns and pistols, or to inflict any bodily harm upon him or the inmates of his house, and if you further find beyond a reasonable doubt that, in pursuance of this common design and purpose, entered into and agreed to by all of them, that they were there, and that when Riley Easter came to the...
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