State v. Bennett

• Decision Date: 31 January 1946
• Docket Number: 650
• Citation: 36 S.E.2d 708,226 N.C. 82
• Parties: STATE v. BENNETT et al.
• Court: North Carolina Supreme Court

36 S.E.2d 708

226 N.C. 82

STATE v. BENNETT et al.

No. 650

Supreme Court of North Carolina

January 31, 1946

Criminal prosecution upon a bill of indictment charging that 'Hugh Gibson (alias Bob O'Connell alias Bob Martin, alias F. H. Heater), Lacy Salmon, Herbert Carroll, Henry Hadie Agner, Clarence Norris, Sam H. Thompson and Raymond Bennett, late of the county of Guilford, on the 9th day of June, A. D.1944, with force and arms, at and in the county aforesaid, unlawfully, wilfully, feloniously premeditatively and deliberately and of their malice aforethought, did kill and murder R.L. (Bob) Beck, while engaged in the perpetration of the crime of robbery against the form of the statute', etc.

The defendants, and each of them, on being arraigned, pleaded not guilty. Thereafter, prior to the drawing of the jury, the solicitor announced in open court that the State takes a nol pros with leave as to defendant Hugh Gibson (alias Bob O'Connell, etc.). And during the progress of the trial defendant Lacy Salmon, through his counsel, entered a plea of guilty of murder in second degree, and at close of argument of counsel, defendants Henry Hadie Agner and Clarence Norris, through their counsel also pleaded guilty to murder in the second degree, and the case was submitted to the jury only as to defendants Herbert Carroll, Sam H. Thompson and Raymond Bennett. As to each of these the jury returned verdict of 'Guilty of the felony of murder in the second degree as charged in the bill of indictment'.

The judgment of the court is that each of the defendants, so pleading and being found guilty, be confined in the State's Central Prison, Raleigh, at hard labor for a term of not less than 25 nor more than 30 years and assigned to work under the supervision of the State Highway and Public Works Commission.

Defendant Raymond Bennett only appeals therefrom to Supreme Court and assigns error.

Harry M. McMullan, Atty. Gen., Hughes J. Rhodes, Ralph M. Moody and J. E. Tucker, Asst. Attys. Gen., for the State.

H. L. Koontz and J. A. Cannon, Jr., both of Greensboro, for defendant-appellant.

WINBORNE, Justice.

While the assignments of error on this appeal are too numerous and extensive to admit of treatment seriatim within the bounds of an opinion of reasonable length, we have given careful attention to each of them and fail to find cause for disturbing the judgment on the verdict against appellant.

In this State a murder 'which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * or other felony, shall be deemed to be murder in the first degree * * * '. G.S. s 14-17, formerly C.S. s 4200. See also State v. Miller, 219 N.C. 514, 14 S.E.2d 522 and cases there cited.

Moreover, the record discloses that the State proceeded in the trial court upon the theory that if the defendants conspired to rob R. L. (Bob) Beck and he was shot and killed by Salmon, one of the conspirators in the attempted perpetration of the robbery, each, and all of the defendants would be guilty of murder. This is held to be a correct principle of law. State v. Bell, 205 N.C. 225, 171 S.E. 50, and cases cited. See also State v. Stefanoff, 206 N.C. 443, 174 S.E. 411; State v. Green, 207 N.C. 369, 177 S.E. 120; State v. Kelly, 216 N.C. 627, 6 S.E.2d 533; State v. Miller, supra.

In the light of these principles of law it is deemed appropriate to treat some of the subjects in which the main points stressed by counsel for defendant have been grouped.

The first group of assignments relate to admission of testimony of officers for purpose of corroborating the witness Gibson an original defendant, as to statements made by him to them while he was in prison in Georgia and on return trip to North Carolina several months after the death of Beck. In this connection the record discloses that without objection Gibson testified: That on June 9, 1944, he saw defendant Carroll about 6 o'clock in the afternoon at Waco Service Station near High Point and exchanged cars with him for a few hours,--letting him have a 1940 black Ford sedan and a pistol which Carroll asked for; that his car was returned about 12 o'clock that night and 'Bennett was sitting in it', but the pistol was not in the car; that seeing Carroll, Bennett and Agner the next morning, he asked Carroll where his pistol was, and he replied that he had it and that it had killed Beck; that after he, the witness, had been brought from the Georgia penitentiary he asked Bennett how he got mixed up in a thing like this, and Bennett said he had Carroll's car and that Agner borrowed the car from him in order to go get Carroll and...