State v. Barrett

• Decision Date: 18 September 1906
• Citation: 142 N.C. 565,54 S.E. 856
• Parties: STATE. v. BARRETT.
• Court: North Carolina Supreme Court

54 S.E. 856

142 N.C. 565

STATE.

v.BARRETT.

Supreme Court of North Carolina.

Sept. 18, 1906.

1. Criminal Law—Separate Trial op Co-defendants—Discretion of Trial Court.

The granting of a motion for separate trials of persons jointly indicted is within the sound discretion of the trial judge, and his discretion is not reviewable.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1380; vol. 15, Cent. Dig. Criminal Law, § 3050.]

2. Homicide—Murder in the First Degree— Premeditation.

One who weighs the purpose to kill another long enough to form a fixed design to do so, and then does the act, is guilty of murder in the first degree; but, where the intent to kill is formed simultaneously with the act of killing, the homicide is not murder in the first degree.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 19, 20, 37, 38.]

8. Same.

Some time before the killing accused had engaged in an affray, and a warrant for his arrest had been immediately issued. After the affray accused armed himself with a gun. The officer having the warrant, on meeting the accused, informed him of the issuance of the warrant and stated that he could consider himself under arrest. Immediately, without inquiry, accused shot the officer. The officer had presented no weapon and had not attempted to seize accused. Held, sufficient to show murder in the first degree.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 35-38.]

Appeal from Superior Court, Pitt County; Long, Judge.

Sylvester Barrett and another were convicted of murder, and Sylvester Barrett appeals. Affirmed.

F. C. Harding and Julius Brown, for appellant.

The Attorney General, for the State.

BROWN, J. The evidence tends to show that the homicide occurred near Farmville in the county of Pitt, some time between 10 and 11 o'clock on the night of January 20, 1906. The deceased was constable in Farmville township and had a warrant for several parties, including the prisoners, for an affray which occurred about sunset on January 20th, near Farmville, the circumstances of which are substantially as follows: One J. C. Case left Farmville in a wagon accompanied by three others, and about one mile out of Farmville these parties overtook a crowd on the road. The prisoners, Cobb and Barrett, were among the number. Case said, "Get out of the road boys, " and they replied In profane language. An altercation ensued during which the prisoner Cobb, after having first approached the wagon "with a knife or some kind of a blade in his hand, " wrested from Case a shovel with which he assaulted Smith, one of the parties in the wagon, and broke his arm. The prisoner Barrett was present when this difficulty occurred. Upon complaint of Smith immediately made, a justice of the peace issued a warrant for the parties, including the prisoners Cobb and Barrett. The warrant was placed in the hands of the deceased, Walter Lovett, the constable for Farmville township. Several parties were summoned to aid in the arrest. Some of these parties went to Cobb's house and also to Barrett's but did not find the prisoners at home. The homicide occurred near the bouse of one Watt Parker. Dr. Joyner and Lovett the father of the deceased, were in a buggy, and Walter Lovett, the deceased, was standing on the rear axle, Dr. Joyner testified that, when they were within about 20 yards of Parker's house, he saw two persons in front of the house. Lovett, the deceased, said: "Halt! We have a warrant for you. Consider yourselves under arrest." As the deceased stepped down a gun was fired.

There was abundant evidence tending to prove that the shot was fired by Barrett or that at the moment he was present aiding and abetting Cobb. If evidence tends to prove anything, the uncontradicted evidence in this case tends to prove that the death of Lovett was brought about by the joint act of Barrett and Cobb. Upon the trial the prisoners moved for a severance. His honor after...