Appeal
from Superior Court, Haywood County; Finley, Judge.
Hugh
Allison was convicted of manslaughter, and he appeals.
No
error.
On a
prosecution for homicide, evidence held sufficient to show
that defendant was present aiding and abetting in the killing
of deceased.
Hugh
Allison, Wade McDaniel, and Rufus Allison were indicted for
the murder of Fred Caldwell. When the case was called, the
solicitor took a nol. pros. with leave as to Wade McDaniel
and Rufus Allison and prosecuted the action against Hugh
Allison only. The jury returned a verdict of manslaughter
and from the sentence pronounced the defendant appealed upon
assigned error.
On
October 19, 1929, the defendant and Wade McDaniel met each
other in Waynesville and went in a car to Allison's home
some miles in the country. They returned to Waynesville, and
McDaniel asked the defendant to take him home. They started
on their journey and arrived at C. C. Moody's store and
filling station on the Dellwood road, where a community road
leading to McDaniel's home leaves the concrete highway.
There was evidence that they got some liquor there. Some
unpleasant words passed between McDaniel and the deceased
followed by threats and acts of violence, in which these two
the deceased, D. L. Caldwell, brother of the deceased, A. B.
Caldwell, his father, and Rufus Allison, brother of the
defendant, directly or indirectly took part. The defendant
and McDaniel returned to and spent an hour in Waynesville,
when McDaniel again asked the defendant to drive him home. On
their way they went the second time to Moody's store, and
there the second time they stopped the car. Immediately a
conversation arose tending to renew the difficulty. Parties
representing each side of the combat used profane and obscene
language. There is evidence that the defendant, Wade
McDaniel, and the deceased each had a pistol. With respect to
some of the subsequent events the testimony is conflicting.
The deceased started home, followed by his father and by
Charley Caldwell, his cousin. The defendant and Wade McDaniel
got in the car, a Ford roadster, the defendant driving,
McDaniel in the seat to his right, and Rufus Allison and Jack
Jones on the left running board. The car went down the road
just behind the deceased, the car and the deceased going in
the same direction. Near Moody's store is a railroad and
beyond the railroad is a bridge. After the car had passed
over the bridge and had gone about ten steps, the deceased
was shot and killed. The defendant's version of the
homicide was this: "We drove on down to the railroad and
Fred was just across the railroad and started across the
bridge, and there was a hole on the left of the bridge, it
has been repaired since, and there wasn't room to pass
there and I slowed up to give him time to get where the road
was wide enough and then we come on; we were going very slow,
five or six miles an hour, I didn't want to crowd him.
Along where I was at the time the road is about 12 or 14 feet
wide. When we got out to where he was and started by him I
pulled to the left away from him and just as we got around he
turned around with a pistol in his hand and called us God
damned sons of bitches and said to stop and I stopped, and he
come to the car and said be was going to blow both of our God
damned hearts out, and I said 'What do you want to do
that for?' and he said, 'I don't give a God
damn,' and he stepped back about two steps and said to
Wade, 'Are you ready to die?' and then he was shot.
His pistol was up like that, pointed toward Wade. Wade shot
the pistol. He had his right hand on the door and Fred walked
up to the car and cursed us and Wade got his pistol with his
left hand from his belt and threw it up on his right arm and
shot him with his left hand; I don't know how many times
he shot him. All the time that Wade was shooting Fred had his
pistol drawed right on him. Wade didn't shoot any after
Fred started to fall, the pistol was firing so fast I
couldn't tell how many times he shot. I hadn't said
anything to Fred except that I didn't want to have any
trouble with him. I didn't fire my pistol at Fred
Caldwell; it was behind the seat; it is a 32. Up to that time
I didn't know Wade had a pistol; I saw it after we went
on around toward Lake Junaluska, it looked to be a 38."
Wade
McDaniel testified: "There was one seat in the car; it
was headed down that road, that is in the direction of my
home; it is also the direction of Fred Caldwell's home.
Jack Jones and Dock Allison got on the left side; they asked
Hugh if he was going up in the Cove and Hugh said, Yes, and
Dock said, 'I am going on home,' and Jack Jones said
'If you are going I want to ride up there.' Ruf
Allison lives with his father, below where I live. We drove
on down and hit the bridge and Hugh had slowed up till Fred
got across the bridge, there was two bad holes where you
crossed the bridge and he had to pull to the right to miss
the holes, you would be liable to break a spring, and Hugh
slowed up and Fred walked on and after we drove out to
dodge the holes Hugh pulled in to the right and then cut to
the left and about that time the hind wheels were across the
bridge and the right front fender was about even with Fred
and he wheeled with his gun, jerked it out and said,
'Stop, you God damned sons of bitches, I will kill both
of you,' and I said to stop, that he had a gun and would
shoot both of us, and Hugh stopped and Fred give about two
steps over to the car where we were and he had his gun in his
hands, and he said, 'I am going to kill both you God
damned sons of bitches,' and Hugh said, 'What are you
going to do that for?' and Fred said, 'I don't
give a God damn' and stepped back like that and said,
'Wade, are you ready to die?' and I never gave him
any answer. I had my right hand laying up on the car door
like that, and my gun was here in my belt and Fred had his
gun on us, he had a blue steel gun, and I didn't do a
thing but grab my gun and lay it on my arm and I shot till
Fred's gun went off of me. When I fired my gun the first
time Fred Caldwell's pistol was sticking right in my eye
like that. I don't remember how many times I shot, I was
so excited I shot till that gun went off of me. When I
emptied the gun after the shooting there were four shells
shot. The gun would shoot six times. There were two loaded
cartridges in the pistol after the shooting; that would make
me shoot four times. I shot just as fast as I could. My
pistol is a .38 Colts Spain; it was a Spain...
