State v. Bagley

• Decision Date: 07 January 1949
• Docket Number: 724
• Citation: 51 S.E.2d 298,229 N.C. 723
• Parties: STATE v. BAGLEY.
• Court: North Carolina Supreme Court

51 S.E.2d 298

229 N.C. 723

STATE v. BAGLEY.

No. 724

Supreme Court of North Carolina

January 7, 1949

Criminal prosecution upon a bill of indictment charging defendant with the murder of one William Coleman.

The solicitor for the State announced that he would not ask for a verdict of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree or of manslaughter, as the evidence might warrant.

Defendant pleaded not guilty, and relied upon alibi.

Upon the trial in Superior Court the State offered the testimony of the members of the Cheatham family, Lewis and his wife Pansy, and their twelve year old daughter Eldria, next door neighbors to William Coleman and his wife Viola, and her daughter Erline. They lived on South Street in the city of Durham, North Carolina. From their testimony this narrative appears: William Coleman, called Bush, came to his death on the night of September 12, 1947, as result of a bullet wound in his chest,-- he being found on the porch of his home, and dying soon thereafter. About 11 o'clock P. M., William Coleman and his wife had an 'argument' at their home. Her screaming waked the Cheathams. While William was turning out the lights in the house Viola went out the front door and down South Street. 'Pretty soon' Frank and Curtis Bagley, brothers of Viola, and of defendant Otis Bagley, and their girl friends came up in a cab and got out and started arguing with Bush. A 'scrap' ensued there on the porch, and Erline, who was there also, got cut on her arm. Bush had a lnife. Lewis Cheatham came as peacemaker, parted them, and took Erline to hospital. The others left too. Only Bush remained at the house. Lewis returned to his home from the hospital. Soon thereafter Bush came to the Cheatham home and tried to borrow a gun. Failing in this, he returned to his home. Soon thereafter two cars stopped in front of his home, and people got out.

As to subsequent events Pansy Cheatham and Eldria Cheatham as witnesses for the State gave their respective versions. Pansy Cheatham testified: 'People got out and a great argument you know, and this sister said to him, said 'Don't shoot Otis', and immediately after that there was shots. The sister I was referring to was Geneva Perry, Otis Bagley's sister * * * I could not see the front porch of William Coleman's house. After the gun fired I heard footsteps, scrambling, down the steps and the cars started and they went up the street, all left * * * My husband returned home not long after the shooting * * * and he went for the officers * * * I know Otis Bagley. I know his sister Geneva. I did not here Otis make any statement or say anything at all that night. I only heard his sister hollering over there. ' Then, on cross-examination, this witness continued: 'I heard Geneva say, 'Don't shoot Otis'. That is all I heard * * * I was facing away from the Coleman house.'

And Eldria Cheatham testified as to such subsequent events 'Two cars drove up and I saw their headlights. I was in my mother's room across the bed. I saw somebody get out of the cars. I recognized Otis Bagley and Geneva Bagley. I recognized Otis by his shirt and glance of his face. I then heard some people fussing. They were cursing. I knew Otis Bagley before this time. I know Otis' voice. Otis asked Bush why he was cutting up people. Bush told him to go away. Nothing else was said by Otis. I heard Geneva say, 'Don't shoot Otis'. Then I heard two shots. Then the people who were on the porch came down the steps and got in their cars and drove off. I did not see or hear anything else over there that night * * * I later told my mother who I had seen. I told her I saw Otis and Geneva. ' This witness, on cross-examination, continued in pertinent part: 'I testified in Recorder's Court that the only way that I knew who any of the people were was by hearing their voices. I say the same thing now. I also testified in Recorder's Court that I heard someone say 'Don't shoot Otis', and then I heard someone say 'Come again', and that was all I testified in Recorder's Court that I heard. I testify now that that is all I heard said. ' Then on re-direct examination the witness was asked this question: 'Did you--were you able to determine--do you testify now you were able to determine the identity of any of these people? Were you able to see any of these people so that you knew them? ' (Objection. Exception 5). The witness answered: 'I don't think so. Oh, yes, Otis '. She then continued: 'Otis was coming up the steps when I recognized him * * * I did not recognize anyone else other than Otis as they left the car and came toward the house '. And, still on re-direct examination, the witness was asked this question: 'I will ask you if you didn't also testify that there were other things said out there that night when you testified in Recorder's Court? ' (Objection. Exception 6) to which she replied 'Yes'. And on recross-examination, the witness said: 'I know what kind of shirt Otis had on that night; he had on a polo shirt.'

Thereafter the State offered as witness C. W. Rigsbee, a member of the detective force of the city of Durham, as to declarations made by Eldria Cheatham on the morning of September 13. He was asked: 'What, if anything, did she tell you as to what she knew with reference to this killing? I am offering it for the purpose of corroborating Eldria Cheatham if it does corroborate her. ' In answer thereto the witness read from a written statement a recitation of events leading up to the shooting, and then, quoting her, continued: 'Geneva and Otis wee out there as Ii heard their voices. Otis told Bush he was acting bad, cutting up people like that, and Otis said 'Take off those glasses and put that knife down and I will shoot you', and Geneva said, 'Don't shoot, don't shoot', and Bush said, 'You all go ahead, go ahead', and then I heard Bush say 'What are you doing with that pistol', and then I heard two shots fired and all the people ran off the porch and got into the car and Geneva's car, and all of them left * * * '. Defendant moved to strike the answer made by the witness. Denied. Exception No. 7. The court instructed the jury: 'The motion is denied, but the court repeats that you will not consider for any purpose any statement of the witness as to what Eldria told him, except as it may tend to corroborate or support her testimony while she was on the stand. The court recalls at least one or two parts of that statement read by the officer that is not in accord with the testimony of Eldria in this case while she was on the stand, and of course that part of it is not competent and will not be considered by you.'

Thereupon defendant entered motions, which the court denied, as follows: (1) That the...