State v. Banks

• Decision Date: 22 February 1933
• Docket Number: 546.
• Parties: STATE v. BANKS.
• Court: North Carolina Supreme Court

167 S.E. 851

204 N.C. 233

STATE v. BANKS.

No. 546.

Supreme Court of North Carolina

February 22, 1933

Appeal from Superior Court, McDowell County; Harding, Judge.

W. A Banks was convicted of manslaughter, and he appeals.

No error.

Confidential letter of state's witness written to witness' wife which wife gave defendant, held not admissible to show witness' bias (C.S. § 1801).

The defendant was indicted for the murder of Louis Chiapetta on 17th day of June, 1932; was prosecuted for murder in the second degree or manslaughter; and was convicted of manslaughter. From the judgment pronounced he appealed upon error assigned.

The deceased and J. W. Phillips, Walter Carroll, Tennie Sliter and John Moore, Jr., of Houston, Tex., and Arthur Horton, and J. W. Barnard, of Little Rock, Ark., were a part of the Bonus Expedition that went on trains from the Southwest to Washington as ex-soldiers. They spent a few days in Washington and traveled together on their return. They arrived at Marion, N. C., in a box car at about 10 p. m. on June 17, 1932. There some one shot Chiapetta and inflicted a wound which caused his death, the bullet having gone through his body. The surviving six were witnesses for the state on the trial. They testified in effect that the defendant shot Chiapetta while the latter was lying down in the box car. There was evidence for the state tending to show that the men in the box car had not had liquor, had not been drinking, and had not assaulted or resisted the defendant, and that they were on the train with the consent or acquiescence of the railroad authorities.

The conductor testified that he had not given these men his consent or permission to ride on the train. After the deceased was shot the defendant took the train and went to Asheville.

The defendant offered evidence tending to show the following circumstances: "The defendant was special railroad police officer of the Southern Railroad, commissioned by the state of North Carolina, whose duty it was to inspect and police trains against trespassing and robbing. On his round of duty when the train arrived in Marion, he came to the empty box car in which the deceased and his companions were riding. He flashed his light and noticed a number of men in there, and asked them to come out, but no attention was paid to him. He then crawled up into the car when some one in there hollered to him 'Get out of here or we will kick your -- head off.' Just then he started to flash his light and the crowd made a move as if to go to the door, but instead of doing so, pushed him out of the door to the ground, and at the same time some one in the crowd kicked his flash light out of his hand. When he struck the ground three or four of the men got on him and grappled with him, one on the rear and one on each side and the others around. They tried to disarm him and in the struggle the pistol was discharged one time under the train and there was a tinkling sound as if the bullet had struck metal. There was no out-cry from any one that anybody had been shot. About that time a second shot was fired from a point west and up the track. Then the deceased and those attacking the defendant began to scatter, and one of them picked up the defendant's flash light and ran through the train and was followed a short distance by the defendant. At this time the train was pulling out and the defendant boarded it, but did not learn that any one was shot until he reached Asheville. The deceased was shot by a bullet entering in front about one and one-half inches below and just left of the navel and ranged upward slightly and passed out on the right side just back of the middle of the body and below the ribs. The defendant contended that if the deceased was hit by the bullet from the pistol of the defendant it was as a result of the ricochet of the bullet, and that the deceased could have been hit by the second shot which was fired by another."

All this was denied by witnesses for the state, who testified that the defendant shot the deceased, was accused of the offense at the time, did not deny the act, ran away from the scene, and went on the train to Asheville.

The material exceptions are set out in the opinion.

Chas. Hutchins, of Burnsville, and Winborne & Proctor, of Marion, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

ADAMS Justice.

On June 13, 1932, the superior court of McDowell county convened for the trial of civil and criminal causes. In the preceding January grand jurors had been drawn whose term of service continued until the 1st day of July. They were in session during the sitting of the court and, having concluded their work, were released on Thursday, June 16th, and were afterwards recalled by the court during the term to investigate the homicide which meantime had occurred.

The deceased was shot with a pistol on Friday night, June 17, 1932, and died on the following Sunday. On Tuesday, June 21st, the grand jury returned a bill charging the defendant with murder. The court set the case for hearing on Wednesday, June 29th, the latest date permissible under the statute for entering upon the trial while the court was in session. The defendant, reserving his rights in apt time, moved for a continuance of the case on the ground that he had not had sufficient time to prepare his defense; that six witnesses for the prosecution were nonresidents of the state, four residing in Texas and two in Arkansas; that they were with the deceased at the time the wound was inflicted; that the defendant had information which led him to believe that the character of each of these witnesses was bad; and that he had had no time to take the deposition of nonresident witnesses. The motion for continuance was overruled and the defendant excepted.

It has been held in numerous decisions of this court that the question of granting or refusing a motion for the continuance of an action is peculiarly within the discretion of the trial court. The exception to the rule is the court's abuse of discretion. The defendant contends that the circumstances bring his case within the exception, for the reason that he had no opportunity to produce evidence as to the bad character of the nonresident witnesses who testified on behalf of the state.

With respect to this position several facts are to be considered. It is provided by statute that, if a continuance is asked because a witness is absent, the affidavit must contain the name and residence of the witness, the facts to be proved by him, and a statement that the applicant expects to procure his attendance at a subsequent term. C. S. § 560; Rule Superior Court, No. 5. The defendant did not comply with this requirement. The fact that he had information which led his mind to a particular conclusion did not remove his motion from the field of speculation. The object was to get evidence of bad character, if it could be obtained; but the defendant was permitted to cross-examine these witnesses before the trial, and at the trial all admitted having had experience in the criminal courts or having been charged with violation of the criminal law. According to their several admissions Phillips had been charged with theft and burglary; Carroll had been the recipient of five bullets during a fight "up in Michigan"; Sliter had been arrested for the theft of an emery wheel; Barnard had done work in a penitentiary; Moore had been arrested for an aggravated assault; and Horton "had not stayed anywhere long enough to be caught." This testimony furnished ample illumination on the question of character; more light would hardly have been supplied by a bare statement of the "good" or "ba...