State v. Absher
| Decision Date | 06 November 1946 |
| Docket Number | 218. |
| Citation | 40 S.E.2d 26,226 N.C. 656 |
| Parties | STATE v. ABSHER. |
| Court | North Carolina Supreme Court |
The appellant, Claude Absher, was charged with the murder of Clyde Watts, was convicted of murder in the first degree, and from the sentence of death imposed, appealed to this Court. The case history insofar as it affects the disposition of this appeal is substantially as follows:
Watts was a soldier in the United States Army, engaged in the European Theatre for some four years. During that time the defendant, Absher, was frequently in company with Josie Watts, wife of deceased, and admittedly having immoral relations with her. Meantime, Watts had been discharged from the army for about two months before the occurrence immediately leading to his death, and had returned to his home in North Wilkesboro where all the parties were living. On the evening of the day in which events culminated, Watts while standing across the street with a number of companions amongst them Earl Watts, his brother, Quincy Parker, Parks Robertson, and Jack Anderson, observed Absher and Mrs. Josie Watts standing near the bank building engaged in conversation. Followed by the above named persons, he went across the street and charged Absher with breaking up his home. A struggle ensued between Watts and his wife in which Mrs. Watts took her husband by the hair and exclaimed that she was 'going to get a warrant for every damned one of them.' Watts proposed to accompany her to the Mayor's office and they both started in that direction.
The State's evidence tended to show that Absher, expressing his love for 'that damned woman,' started to follow. Anderson interfered and told him not to follow them. In the altercation which followed, Anderson knocked or slapped Absher to the sidewalk. The evidence tended to show that the defendant, at some point in this melee, had drawn a knife. The parties finally separated, Absher declaring he would return, and going off in the direction of the Call Hotel.
Absher was not seen by Clyde Watts for about 30 minutes, during which Earl Watts, Anderson, Quincy Parker Parks Robertson walked about without any particular objective, as they contended, and drank quantities of whiskey. They finally decided to see if they could find Clyde and his wife and walked back down the street, where they were joined by Clyde Watts and Coy Adkins. They finally approached Brame's Drug Store near which the previous altercation had occurred. There Clyde Watts saw the defendant on the opposite side of the street and 'hollered' at him: 'I want to see you a minute.' Absher was standing near the taxicab stand and Watts went straight across the street and approached him. The group which had accompanied him converged on the scene from different angles. When Clyde Watts was about 25 or 30 feet from Absher, the latter, first pointing the gun at Earle Watts, then turned it upon Clyde Watts and shot him in the belly, the load striking a little below the level of the navel on the right side and inflicting a wound from which Watts died shortly thereafter.
After Clyde Watts was shot, Absher made a motion as if to reload the gun and he and Earl Watts struggled on the sidewalk until the gun was recovered by someone else. An officer arrived and Absher was taken into custody. The evidence is to the effect that Watts was unarmed throughout the difficulty.
Testifying in his own behalf, defendant said that after the first encounter near the bank in which he was knocked to the sidewalk, he went to the Call Hotel where he drank a great quantity of whiskey, so much in fact that after the last drink there, his mind was a perfect blank; and he now had no memory whatever of anything that occurred thereafter until he was awakened in jail about midnight and learned that Watts had been shot and killed. W. C. Sloop, taxicab driver and witness for the State, testified to the conduct of defendant during a part of the amnesic period. He testified that defendant approached his cab in front of the hotel and engaged witness to carry him to his home, about a mile away. Arriving there, defendant told him to turn around and wait for him. This witness did; and in a short time defendant came out and got in the back seat of the cab. After some difference between them about which street they should take, witness drove defendant to a point a short distance from where the homicide took place. As defendant got out of the car, witness discovered that he was carrying a shotgun. Absher exclaimed, 'Now where is he at,' or 'Now where is the s. o. b. at?' and went in a fast walk up toward Brame's Drug Store.
In rebuttal of defendant's testimony that he could remember nothing that happened from the time he took the last drink at the hotel until he was awakened in the jail after the fatal occurrence, the State offered evidence from witnesses who had observed him at various times during that period, particularly at the time of his arrest, who testified that in their opinion defendant knew what he was doing.
Omitted from this statement is any attempt at categorical mention of objections to the evidence and of exceptions to the judge's charge not concerned with the basis of decision. Where pertinent to the discussion, exception to the instructions given and objection for the want of proper instructions will be specifically treated in the body of the opinion.
The jury returned a verdict of guilty of murder in the first degree and from the sentence of death imposed, the defendant, as noted, appealed, making some 94 assignments of error.
Harry McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph Moody, Asst. Attys. Gen., for the State.
Trivette & Holshouser and Mitchell, Hayes & Hayes, all of Boane, for appellant.
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