State v. Barnhill

• Decision Date: 14 November 1923
• Docket Number: 278.
• Citation: 119 S.E. 894,186 N.C. 446
• Parties: STATE v. BARNHILL.
• Court: North Carolina Supreme Court

119 S.E. 894

186 N.C. 446

STATE v. BARNHILL.

No. 278.

Supreme Court of North Carolina

November 14, 1923

Appeal from Superior Court, Pender County; Sinclair, Judge.

Don Barnhill was convicted of assault with a deadly weapon, and he appeals. No error.

An exception to a charge which is not insisted upon in the brief as a rule will not be considered on appeal, under Rule of Practice in Supreme Court, rule 27.

Don Barnhill was charged with an assault on R. R. Henry with a deadly weapon, about 10 o'clock at night, on January 8 1923, near the barber shop of Hayes Tate, in the town of Atkinson.

R. R Henry testified that as he left the barber shop one of the Russ boys, Barnhill, and Woodcock were at the other corner of the store, and as he started in that direction Barnhill said "Damn him, let him come up here and I will fix him." That he did not go closer; that he went in Russ' store, and stayed in there about two minutes, and went out and started home. As he stepped out of the light into the darkness he was struck across the nose and knocked around, and as he started toward the light he was struck twice in the back of the head with a stick; that he could not see any one in the dark. He was knocked down, struck, about five minutes after Barnhill made the threat; that he had had trouble with Barnhill; about four years previous Barnhill had cut him in four or five places and was tried and convicted. He (Henry) was drinking; that he heard Barnhill make the threat; did not see him; did not know who hit him.

Carney Russ, witness for the state, testified:

"I saw Barnhill the night Henry was hit, some time after 10 o'clock. I saw him before and after he was hit. I saw him about 5 or 10 minutes before he was hit. When I first saw him he was standing in front of the store door. I was standing at the corner of Boney's store with Chancey, Woodcock, Barnhill, and Hayes Tate. I saw him about 2 minutes after he was struck. He came back in the store. I don't know where Barnhill was at the time. I saw him afterwards. He came back there in front of the store and got in a truck. This was Woodcock's truck, I guess. Woodcock was with him. I had a conversation with Barnhill, and he said that he 'busted his damn face.' He was talking about Henry. Barnhill then got in the truck and left. This was something like five minutes after Henry told me he had been struck. Barnhill was drinking some. He did not say why he busted his face. I think Barnhill drove the truck away. Woodcock cranked the truck up. Barnhill and Woodcock went off in the truck. At that time I had gone back to the store door. Henry's nose was busted, and I think his ear was bleeding. I could not tell how bad he was hurt."

Hayes Tate corroborated the testimony of Henry and Russ in many respects. The above is substantially the testimony of the state.

Don Barnhill, the defendant, testified as follows:

"I went to Atkinson that night with Leslie Woodcock. We went from the home of Bland Wallace, my father-in-law. We went on Leslie Woodcock's truck. He drove it. We got to Atkinson somewhere between 7:30 and 8 o'clock, and we stayed there until close to 10 o'clock. I then went home with Leslie Woodcock. We went on the truck. Woodcock drove it back, We got back to Wallace's house at quarter past 10. It was that time when we got in the house. Bland Wallace and his wife, and my wife, and Leslie Woodcock and Leslie Woodcock's wife were there. At the time I left Atkinson I had not heard anything about Henry having been assaulted. I did not go back to Atkinson any more that night, but stayed at Wallace's the rest of the night. Leslie Woodcock went back to Atkinson to get a package which he had left. He drove the truck back, and got back from Atkinson a few minutes after 11 o'clock. He was gone about an hour. The distance is about two miles. The truck he was driving was a lumber truck, worm-drived with slow speed. The first time I heard that Henry had been struck, was when Leslie Woodcock came back that night. I did not strike Henry, and did not make any threats against him. I heard the statement of Hayes Tate that he saw me and Leslie Woodcock and some others standing on the corner; that was about 9:30 o'clock and before Leslie Woodcock and I went home. Hayes Tate passed the corner where we were standing. The truck was standing in front of Russ' store, where we stopped it when we first came. The truck stood there from the time we came until some where near 10 o'clock when we left. I never made any statement to Carny Russ that I had struck Henry or that I had busted his face. I did not call him to the truck to me. I didn't make any statement to him asking him not to give me away, or anything like that." He testified that Leslie Woodcock was his brother-in-law.

Leslie Woodcock testified that he was with Barnhill and corroborated him that Barnhill did not strike Henry and as to the time they left the store, about 10 o'clock, and that it would take about 15 minutes to go to Wallace's house; that after taking Barnhill to Wallace's he went back to the store for a package, and then, for the first time, heard Henry had been assaulted. He said that he was Barnhill's brother-in-law.

Mrs. Don Barnhill, wife of the defendant, said that her husband got back at 10:15. Bland Wallace and his wife, Janie Wallace, father and mother-in-law of the defendant, all testified to the same effect.

Several witnesses were introduced and testified to the good character of the witnesses for the state and the defendant.

The state, in rebuttal, examined C. M. Chancey, who corroborated the state's witnesses in many respects and was asked the following questions on cross-examination:

"Q. You remember who was there? Ans. I remember seeing them. I don't remember what was said. I remember there was drinking.

Q. You do remember that just before they went in the store that you and Mr. Russ were standing out there talking? Ans. Yes, sir; I remember Cornie, but I don't remember the words and I don't remember how many.

Q. Right when the man was hit if anybody had come there and said they hit him, wouldn't that have made an impression on your mind?"

To the last question there was objection by the state, which was sustained by the court, and the defendant excepted. This was defendant's first exception and assignment of error. Counsel for defendant then asked the witness:

"Q. Do you think your mind was in such a condition that that would not have made an impression on you? Ans. I guess not. I have told you all I know about it."

There was other evidence not necessary to set forth for the determination of the case.

The court below gave the contentions of the state and defendant, and charged the jury. The jury returned a verdict of guilty. The defendant was sentenced by the court, and excepted and appealed to this court. The following exceptions were taken to the charge of the court, and defendant assigned as errors:

Second. "Reasonable doubt, gentlemen of the jury, don't mean any doubt. You may have a doubt about a matter, and at the same time it would not be what the law calls a reasonable doubt. If a jury could acquit in cases, gentlemen of the jury, simply because you could raise imaginary doubts about it, you would never convict, and the law could not be enforced. Therefore, the law says, the defendant is entitled to the benefit of the doubt where the doubt is a reasonable doubt founded on some substantial reason."

Third. "That he is unable to explain it to you, gentlemen of the jury, because he wasn't there and knows nothing about it, and he relies upon what the law calls an alibi; that he wasn't there and therefore can't explain it, but that he isn't guilty, because he wasn't there."

Fourth. "Now, the defendant contends, gentlemen of the jury, that not only the state has not satisfied you beyond a reasonable doubt, that he struck the blow, but that he has offered you evidence which you ought to believe, beyond a reasonable doubt, that he could not have stricken the blow, because he wasn't there."

Fifth. "The court charges you further that it is a rule of law, which you have sworn to observe, that in conflict of evidence, gentlemen of the jury, it is your duty to scrutinize closely the evidence of every defendant in a criminal case before you accept it."

Sixth. "And the law says the close relations have that same temptation. Therefore, it is your duty to scrutinize their evidence before you accept it. But the law says that after having scrutinized their evidence, applied your common sense and reason to it, observed the demeanor of the witnesses on the stand, and considered their interest in the result of the trial, if you find that the evidence is entitled to be believed, that you have a right to accept it and give it the same weight you would that of any disinterested witness."

Weeks & Cox, of Wilmington, and C. E. McCullen, of Burgaw, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The witness...