State v. Bailey, 721

• Decision Date: 12 April 1961
• Docket Number: No. 721,721
• Citation: 119 S.E.2d 165,254 N.C. 380
• Court: North Carolina Supreme Court
• Parties: STATE, v. James Albert BAILEY, Jr., and LeRoy Jones.

Page 165

119 S.E.2d 165

254 N.C. 380

STATE, v. James Albert BAILEY, Jr., and LeRoy Jones.

No. 721

Supreme Court of North Carolina.

April 12, 1961

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

Gilbert Medlin, Laurinburg, for defendant Jones, appellant.

PARKER, Justice.

The State's evidence tends to show the following facts:

Defendant LeRoy Jones, 25 years of age, owns a Chevrolet automobile, and in December 1959 was living and working near Angier in Harnett County. On the morning of 10 December 1959 Jones, with Charles Thomas, 23 years of age, and defendant James Albert Bailey, Jr., 19 years of age, riding as passengers in his automobile, drove it to the home of Rellie Barber near Angier. William Gibson, 17 years of age, was there eating breakfast. After breakfast Gibson got in the automobile with Thomas and Bailey, and Jones drove it away. Jones asked Gibson about his pistol, saying something about killing hogs. Gibson told Jones his pistol was at the house of Pauline Covington. Jones drove to Pauline Covington's house, where Gibson got his pistol, and gave it and bullets to Jones. There was a jar of liquor in the pocket of the automobile.

Later on in the morning, Jones, with Thomas, Bailey, Gibson and one Hattie Mae McEachern in his automobile, drove to Scotland County. All four men were drinking. Upon reaching Scotland County Hattie Mae McEachern got out at her father's house. About 3:00 o'clock p. m. on this afternoon Jones was driving his automobile on U. S. Highway No. 1 between the towns of Marston and Laurinburg in Scotland County. Gibson was in the front seat, and Thomas and Bailey in the back seat. They stopped at a crossroads. At the time a Ford automobile with a trailer hitched to it was coming into the highway from a dirt road.

Charles Thomas testified in substance, except when we quote his language:

'LeRoy said, 'there comes a s. o. b. that (sic) has plenty of money.' ' Jones drove on down the road, and the automobile with the trailer followed. 'LeRoy said he was going to stop down the road and get that man's money. * * * I begged him not to bother the man.' Jones drove on about a mile, parked his automobile on the shoulder, got out and waved the automobile with the trailer to stop. It stopped about 30 yards in front of Jones' automobile. Jones walked to the back of the trailer. The white man got out of his automobile with a paper sack. He had fruit in the trailer. Jones pulled a pistol out of his pocket and levelled it on him. The white man backed up four or five feet. While he was backing up, Jones called defendant Bailey to get out of the automobile and come to where he was. Bailey did so, but before he got to where Jones was, Jones shot the white man in the face. The white man fell backwards. Bailey got there, turned the white man over, and took a pocketbook out of his pocket. The man was dead. Bailey handed the pocketbook to Jones. There was a fishing tackle box in the front of the trailer, and Jones took it. Jones and Bailey got back in the automobile, and they left. There was some silver money in the fishing tackle box. Later, Jones opened the pocketbook, and it had some green money in it and a cheque made out for $36. That night Jones cashed the $36 cheque at S. J. Lindsey's store. Jones gave Bailey $10. The white man's name was Frank Allred. He had only one arm. On cross-examination by Bailey's counsel Thomas testified he heard Jones tell Bailey 'Get his pocketbook.'

William Gibson testified in substance, except when we quote his language: We first noticed this automobile and trailer near the crossroads leading to the town of Marston. 'LeRoy Jones said that he was going on down the road a little piece and stop that man because 'he has got plenty of money.' ' A little farther down the road, Jones stopped, got out of his automobile, and flagged the peddler man to stop. The peddler man stopped his automobile on the same side of the road in front of Jones' automobile. Jones walked up to the trailer, and asked him about some oranges. The white man started to put oranges in a bag, and Jones pulled his pistol on him, and called Bailey to come to the trailer. Jones had Gibson's pistol in the peddler man's face. Just as Bailey was getting out of the automobile to go to Jones, Jones shot the peddler man, and he fell. Bailey turned the peddler man over, and took a pocketbook out of his hip pocket. Jones took a fishing tackle box out of the trailer. The peddler man was Frank Allred. Jones and Bailey got in Jones' automobile, and he drove away. Farther on down the highway Jones said: 'If any of you tell anything, I will let you have the other five balls. * * * I know that s. o. b. is dead, because I got him between the eyes.' Later that night Jones cashed a cheque, gave Bailey ten dollars, and told him to keep it.

About 4:00 o'clock p. m. on this afternoon I. P. Brown was driving on U. S. Highway No. 1. He saw the dead body of Frank Allred lying in the highway behind a trailer hooked to an automobile. There was a hole in his forehead about as big as the end of Brown's little finger.

Dr. George O. Creed, a doctor of medicine, examined the dead body of Frank Allred at a funeral home. There was a penetrating wound between the eyes. He probed the wound, and the probe passed on through the skull into the anterior part of the skull. He found part of a bullet. In his opinion, Frank Allred's death was caused by the penetration of his skull by a lead bullet.

Frank Allred peddled fruit in the community. He cashed Mrs. Corinna Gibson's welfare cheque for $36. Jones, the night Allred was killed, cashed this cheque at S. J. Lindsey's store, receiving $33 in money and $3 in gas. He told Lindsey he had sold Mrs. Gibson a pig.

After the State rested its case, defendant Bailey testified in his own behalf in substance: He was present when Frank Allred was killed. Jones shot him and then he took a pocketbook out of Frank Allred's pocket.

After defendant Bailey had testified in his own behalf, defendant Jones testified on direct examination in his own behalf in substance, except when we quote his language: After they left the town of Angier, 'all the while, Bailey, Gibson and Thomas were talking about getting some 'fast' money, and I asked him what he meant. He said, 'I mean to stick somebody up for it.' I said 'I ainht never done nothing like that.' ' He stopped his automobile on the edge of the woods below Mr. Gordon's store, took whiskey out of the automobile, and at Bailey's request let him have his car. Bailey said he would be back in 10 or 15 minutes. While they were gone, he sat lown at the edge of the woods, and took another drink. In a little while Bailey, Thomas and Gibson came back. Thomas was driving my car. Jones said he would do the driving, and went to his house. When they arrived there and got out, Gibson had something covered up with Thomas' coat. When they got in Jones' house, Gibson pulled out a basket and emptied it on the bed. When he did this, Jones said, 'I know now where you all have been.' 'They admitted they robbed Mrs. Dupree, but did not say a word about shooting her.' Later on all four of them with Hattie Mae McEachern left in Jones' automobile for Scotland County. They put her out at her father's home in Scotland County. He went by to see his wife, and then to Paradise Inn. They left there and on their way to the town of Ellerbe they came upon an automobile with a trailer. Jones knew the driver was Frank Allred, and Allred knew him. He did not say 'there is a s. o. b. who has plenty of money.' Bailey asked him to stop so he could get some oranges and food. He stopped the car. Bailey got out, went to Allred at the trailer, and said he wanted to buy some oranges. Jones remained seated under the steering wheel with the engine running. When Allred reached and got a paper sack, Bailey suddenly drew a pistol on Allred, and told him he did not want any damned oranges, that he wanted his money. Allred sort of smiled, and used his hand to push Bailey away from him. When he did this, Bailey shot him, and he fell. Bailey reached down, and took his pocketbook. Thomas, who was near the trailer with Bailey, took the fishing tackle box off the trailer. Both came back, and jumped in the car. Jones did not have his hands on the pistol but one time during the day, and that was when Bailey asked him to get rid of it after he had shot Allred. Later on that night Jones pawned the pistol in a gambling game at Charlie Jones' home. A $36 government cheque was in the fishing tackle box. Later on that night Jones cashed this cheque at S. J. Lindsey's store, telling him he had sold a hog to Mrs. Corinna Gibson. Lindsey gave Jones $33 in money, and took out $3 for gas. They split the money: Bailey taking $10, Jones keeping $10, and the balance was divided between Thomas and Gibson. Jones does not know who killed Mrs. Dupree, because he was not there. 'I'm an accessory before and after the fact because I hauled these men around after I knew that Bailey had killed Mr. Allred. I am guilty of being an accessory after the fact of robbery because they told me they had robbed Mrs. Dupree.' On cross-examination by defendant Bailey's counsel, he said it was Gibson's pistol. Gibson was talked into letting his pistol be pawned in the card game. He was talked into cashing the $36 cheque at S. J. Lindsey's store, because Lindsey knew him, and did not know the other men. On cross-examination by the solicitor for the State, Jones said in substance: After Allred was shot, Bailey got in his car on the back seat. He had Allred's pocketbook, took the money out, and put the pistol in his pocket. It looked like $25 or $30. They drove into a pine thicket. Bailey and Thomas gave him, Jones, $5.

Defendant LeRoy Jones assigns as error the refusal of the trial judge to give to the jury his following written prayers for special instructions tendered to the judge at the close of...