State v. Allen
| Decision Date | 14 October 1942 |
| Docket Number | 221. |
| Citation | 22 S.E.2d 233,222 N.C. 145 |
| Parties | STATE v. ALLEN. |
| Court | North Carolina Supreme Court |
Criminal prosecution tried upon indictment charging the defendant with the murder of Grady Lee. Verdict: Guilty of murder in the first degree. Judgment: Death by asphyxiation. The defendant appeals assigning errors.
Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.
Lawrence H. Wallace and E. J. Wellons, both of Smithfield, for defendant.
The record discloses that the defendant and his wife, with another couple, were out together on the evening of January 14, 1942. After visiting a number of places, they drove to Benson's Filling Station and arrived there about one o'clock A. M. The party wanted to get something to eat. Defendant had been drinking rather heavily and was abusive and quarreling with his wife. The filling station was closed. The defendant left the car for the purpose of waking up the owner of the filling station. While the defendant was gone the other members of the party decided it would be best for them to leave the defendant at the filling station, and did so. Thereafter the defendant walked from Benson's Filling Station to his mother's home, a distance of six or seven miles. He tried to get his brother to let him have his automobile, but he would not; he then got his brother's shotgun and nearly a box of shells. From there he went down the road four or five hundred yards to Cap Raynor's house, called him out and shot him twice and left him lying on or near the front porch; he then walked seven miles to the home of his wife's mother, Mrs. Claudia Lee. Upon defendant's request that the door be opened, the deceased, Grady Lee, brother of defendant's wife, asked what he wanted. Grady Lee was eating breakfast; it was before daylight and the lamp was burning on the table a few feet from the window. The defendant moved around to the window and shot through it, the shot entering the head of the deceased from which injury he died. The defendant then entered the house, dragged his wife from her bed and out of the house into the yard where he shot and killed her. Defendant then took Grady Lee's automobile, drove to his home and gathered up his clothes and started to Elizabeth City. He stopped at Guthrie Barefoot's house to get a tire repaired, and was arrested while there.
The first exception is based on the refusal of the Court to continue the case on the ground that defendant's most material witness, to-wit, his mother, was ill and unable to attend Court. As stated in the case of State v. English, 164 N.C. 497, 80 S.E. 72, 75: State v. Sauls, 190 N.C. 810, 130 S.E. 848; State v. Henderson, 216 N.C. 99, 3 S.E.2d 357.
The record discloses no request to take the deposition of the witness. The defendant contends her testimony was important, because she was the last person with whom he talked before he killed Grady Lee, and he contends she knew of his intoxicated condition. The record does not disclose what her testimony would have been. However, defendant testified that after leaving his mother's home he drank some additional liquor and walked seven miles to the home of his mother-in-law, where he killed Grady Lee and the defendant's wife, Ruth Allen. No abuse of discretion has been showing in the ruling of His Honor, and the exception cannot be sustained. State v. Lea, 203 N.C. 13, 164 S.E. 737; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; State v. Godwin, 216 N.C. 49, 3 S. E.2d 347.
The second exception is to the refusal of the trial Court to allow defendant's motion to have a venire drawn from some adjoining County, or some County other than Johnston. The motion was based on certain newspaper articles which appeared in a local paper on the day set for the hearing of the trial. A motion for change of venue or for a special venire, may be granted or denied in the discretion of the trial Judge, and his decision in the exercise of such discretion is not reviewable here unless gross abuse is shown. State v. Hildreth, 31 N.C. 429, 51 Am.Dec. 364; State v. Smarr, 121 N.C. 669, 28 S.E. 549; State v. Shipman, 202 N.C. 518, 163 S.E. 657; State v. Godwin, supra. We do not think the defendant has shown an abuse of discretion by His Honor in refusing to grant his motion.
The third and fourth exceptions are to the evidence of the witnesses R. D. Marler and Martha Allen....
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