State v. Beal, No. 456.

Docket NºNo. 456.
Citation154 S.E. 604
Case DateAugust 20, 1930
CourtUnited States State Supreme Court of North Carolina

154 S.E. 604
(199 N. C. 278)

STATE.
v.
BEAL et al.

No. 456.

Supreme Court of North Carolina.

Aug. 20, 1930.


[154 S.E. 604]

The homicide was committed upon a police officer, who, with several others, had entered a camp of striking workmen. Upon the same grounds was erected a building used as union headquarters. The evidence for the state tended to show that the police officers upon receiving a call, arrived at the strikers' lot, were met by a guard who leveled a gun at them, arrested the guard, proceeded to, but did not enter the union hall, and, upon leaving the lot with the arrested guard, shots were fired from the direction of the building, killing one and wounding the other police officer and the arrested guard. It was not shown who fired the fatal shot. The theory of the state was that defendants, union organizers and guards, had conspired to resist the officers and prevent their entry on the union grounds.

Although the absence of defendant created no presumption against him, yet his failure to testify necessarily left the jury to infer the facts without the benefit of his testimony.

[154 S.E. 605]

During the progress of a trial, one of the jurors suffered an acute attack of emotional insanity and became wholly incapacitated for further jury service; whereupon the court, as a matter of necessity, withdrew a juror and ordered a mistrial, continuing the cause. Defendants' motion for their discharge was overruled.

The declarations were to the effect that deceased did not know why "they" shot him in the back and killed him, that he "didn't do anything, " and that he never did "them" any harm. The statements of the deceased in detailing facts attending the infliction of his fatal wounds, were evidently intended to relate to those who were present with guns, shooting, and the conclusion is permissible that his references were to the defendants or to those on trial.

The state's theory was that defendants had conspired to resist the entry of police officers on the union grounds even unto death. The cross-examination of one of defendants with respect to distribution, among the strikers, of a Communist newspaper, was competent as tending to show the purposes and objects which the mem-

[154 S.E. 606]

bers of the union had in mind, and the methods by which they proposed to accomplish those objects.

The trial was for the killing of a police officer. On cross-examination, one of defendants, a union organizer, was asked if he did not distribute to the strikers, through the union headquarters, before and during the strike a Communist daily newspaper, containing several communications critical of the millowners and police officers of the city.

Witness was required to read from a publication, the substance of which she admitted teaching the strikers' children. Witness was organizer of the children's section of the union. The publication, in substance, was to the effect that the government, in cases of industrial dispute, was always on the side of the employers and stood for child labor. The publication exhorted the strikers' children to join an organization of workers' children.

By means of cross-examinatfon, the situation of the witness with respect to the parties, and the subject of litigation, his interest, motives, inclination, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he testifies, the manner in which he has used those means, his powers of discernment, memory, etc., may be fully investigated in the presence of the jury, to afford an opportunity for observing his demeanor and determining the weight and value of his testimony.

Witness, having taken the oath, was asked on cross-examination whether she believed in the existence of a Supreme Being who controls the destiny of men and rewards their virtues or punishes their transgressions here o.r hereafter. Witness answered, in effect, that she believed that man controls his own destiny, but that, when she took an oath, whether on the Bible or in any other manner, it would have a binding effect upon her to tell the truth. Const. 1776, Declaration of Rights, § 19, declared that all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience. This was amended by Const. 1868, Declaration of Rights, § 26, by adding thereto a provision that no human authority should, in any case whatever, control or interfere with the right of conscience.

The injury must be positive and tangible, and not merely theoretical.

[154 S.E. 607]

The exception was with respect to what defendants proposed to show by witness, offered as a sustaining character witness to a character witness.

The instruction, in substance, stated that the testimony of defendants, who testified in their own behalf, should be scrutinized with care to ascertain to what extent, if any, their testimony was warped or biased by their interest, but that, if the jury, after such scrutiny, believed the testimony, they should give it the same credit as if defendants were disinterested.

Defendants, by separate bills of indictment, were charged with murder and secret felonious assaults. On the motion of the solicitor, the bills were consolidated and tried as different counts in a single indictment. There seems to have been no objection to the motion. Defendants made motions in arrest of judgment on the assault counts on the ground that they had not been required to plead thereto.

The general rule is that what constitutes legitimate argument in a given case is to be left largely to sound discretion of trial court, which will not be reviewed on appeal unless the impropriety of counsel be gross and well calculated to prejudice the jury. In the case at bar, the court promptly stopped the solicitor on objection being made, and, at another time, sua sponte, admonished the solicitor to stay within the record.

Appeal from Superior Court, Mecklenburg County; Barnhill, Judge.

Fred Erwin Beal and others were convicted of murder in the second degree and felonious secret assault, and they appeal.

No error.

Criminal prosecution tried upon indictments charging the defendants, pursuant to an unlawful conspiracy or confederation, with (1) the murder of O. F. Aderholt; (2) felonious secret assault upon T. A. Gilbert; (3) felonious secret assault upon A. J. Roach; and (4) felonious secret assault upon C. M. Ferguson.

Statement of the Case.

The case grows out of a strike begun April 1, 1929, and conducted by the local branch of the National Textile Workers' Union at the Manville-Jenkes Company's Loray Mill in Gastonia, N. C. Headquarters of the union were first established on West Franklin avenue, and a few doors away the Workers' International Relief, an organization designed to care for strikers and their families, had; its headquarters. These union and relief headquarters were demolished on the night of April 18 by persons unknown, or at least not disclosed by the record. Members of the union then proceeded to construct new headquarters on North Loray street on a lot leased for the purpose by the National Textile Workers' Union. Here they erected a hall and a number of tents for storing supplies and housing strikers and their families.

Fearing a repetition of what had happened to their headquarters on Franklin avenue, and not being willing to trust to the protection of the "one-sided Manville-Jenkes law, " as was stated in a letter to Governor Gardner by a member of the strike committee, under date of May 16 (written with the approval of the defendant Beal), the strikers and members of the union supplied themselves with firearms, shotguns, pistols, etc., established a voluntary system of patrol, and, in this way, "determined to defend the new union headquarters at all costs." Holes were cut in the front wall of the building through which guns

[154 S.E. 608]

could be fired without disclosing the identity of the gunners to any one on the outside.

Meetings were held in the front yard of the premises from time to time, in fact nearly every evening, at which the progress of the strike and the condition of the workers were discussed by different speakers, and, after the close of the meetings five or six guards, armed with shotguns, usually remained to patrol the property.

The evidence tends to show that at one of the meetings, probably during the latter part of May, the defendant Beal, in an address to the workers, advised them that they were going to "pull a strike" at the Loray Mill; that he had sent a delegation to Washington to straighten the matter out with the government; that the bosses, thugs from the mill, and officers of the town were trying to tear up their union and break up their meetings, but "they were a fighting union—not dreading the police at all—let them come when they wish;" that he had instructed the guards to be constantly on the alert and to protect every-thing against all comers, police, mill thugs or bosses; and that the only way to win the strike was to shut down the Loray Mill.

On the night of June 7, 1929, an encounter took place between police officers of the city of Gastonia and those in charge of the union premises which resulted in the killing of O. F. Aderholt, chief of police, the wounding of Officers Gilbert and Ferguson, and A. J. Roach, who came with the police, and Joseph Harrison, one of the strikers.

Of the seven defendants tried and convicted, three came to Gastonia in connection with the strike, Fred Erwin Beal, age 33, of Lawrence, Mass., as Southern organizer for the National Textile Workers' Union, Clarence Miller, of New York, as organizer of the youths' section of the union, with his wife, age 20, who organized the children's section, and George Carter, age 23, of Mispah, N. J., who read about the strike and came because he was interested in strikes. The remaining four, W. M. McGinnis, Louis McLaughlin, Joseph Harrison, and K. T. Hendricks, age 24, are residents of Gastonia.

True bills were returned by the...

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151 practice notes
  • State v. Creech, No. 218.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 7, 1949
    ...it must be made to appear that the appellant's rights have been injuriously and prejudicially affected. State v. Beal, 199 N.C. 278, 154 S.E. 604. The party alleging error, "not only has the laboring oar, but the tide is also against him. Error must be shown; it will not be presumed." Cole ......
  • State v. Sanders, No. 43
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 12, 1970
    ...158 S.E.2d 522; State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Stancill, 178 N.C. 683, 100 S.E. 241. In view of the serious nature of the facts in this case, we do not think this ruling affecte......
  • State v. Buchanan, No. 317A89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1991
    ...as entered properly, but rejected defendant's appeal of his denied motion for discharge. See also State v. Beal, 199 N.C. 278, 295-96, 154 S.E. 604, 614 Within the last ten years, however, this Court has faced an increasing number of appeals involving an accused's constitutional right to pr......
  • State v. Bittings, No. 548.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 20, 1934
    ...1; State v. Poster, 172 N. C. 960, 90 S. E. 785. In the next place, the contention itself was legitimate. State v. Beal, 199 N. C. 278, 154 S. E. 604; State v. Mull, 196 N. C. 351, 145 S. E. 677; State v. Lawrence, 196 N. C. 562, 146 S. E. 395; State v. Stewart, 189 N. C. 340, at page 347, ......
  • Request a trial to view additional results
151 cases
  • State v. Creech, No. 218.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 7, 1949
    ...it must be made to appear that the appellant's rights have been injuriously and prejudicially affected. State v. Beal, 199 N.C. 278, 154 S.E. 604. The party alleging error, "not only has the laboring oar, but the tide is also against him. Error must be shown; it will not be presumed." Cole ......
  • State v. Sanders, No. 43
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 12, 1970
    ...158 S.E.2d 522; State v. Woolard, 260 N.C. 133, 132 S.E.2d 364; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Stancill, 178 N.C. 683, 100 S.E. 241. In view of the serious nature of the facts in this case, we do not think this ruling affecte......
  • State v. Buchanan, No. 317A89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1991
    ...as entered properly, but rejected defendant's appeal of his denied motion for discharge. See also State v. Beal, 199 N.C. 278, 295-96, 154 S.E. 604, 614 Within the last ten years, however, this Court has faced an increasing number of appeals involving an accused's constitutional right to pr......
  • State v. Bittings, No. 548.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 20, 1934
    ...1; State v. Poster, 172 N. C. 960, 90 S. E. 785. In the next place, the contention itself was legitimate. State v. Beal, 199 N. C. 278, 154 S. E. 604; State v. Mull, 196 N. C. 351, 145 S. E. 677; State v. Lawrence, 196 N. C. 562, 146 S. E. 395; State v. Stewart, 189 N. C. 340, at page 347, ......
  • Request a trial to view additional results

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