State v. Bentley
| Decision Date | 24 November 1943 |
| Docket Number | 290. |
| Citation | 27 S.E.2d 738,223 N.C. 563 |
| Parties | STATE v. BENTLEY. |
| Court | North Carolina Supreme Court |
The defendant was tried at the stated term of Caldwell Superior Court upon a bill of indictment charging as follows "The Jurors for the State upon their oath present, That Albert Bentley, late of the County of Caldwell, on the 10th day of April, in the year of our Lord one thousand nine hundred and forty-three, with force and arms, at and in the County aforesaid, unlawfully, wilfully and feloniously did commit an assault with the intent to kill upon one Glen Adkins with a certain deadly weapon, to wit: a shot gun and did then and there shoot him the said Glen Adkins in the chest, hand and face thereby severing muscles, flesh leaders, veins and causing the loss of the sight of one eye which said felonious assault resulted in serious injury but did not result in death, against the form of the statute in such case made and provided and against the peace and dignity of the State."
The charge is brought under Chapter 101, Public Laws of 1919 Michie's Code of 1939. Section 4214, and the indictment follows the language of the statute.
The evidence of the State may be summarized as follows:
Glenn Adkins, upon whom the assault was committed, in company with his brother, drove up to defendant's house in the night time and parked the car, and then went up to the house and called, asking where Goldie McLean or Goldie Brown lived, and was informed that she lived next door. Thereupon, witness went up to the indicated house and asked the people there if these folks had come in from work, and having been informed that they had not, he turned around and went back through the yard where the car was parked. Witness called defendant again and asked whether he knew if Goldie Brown or Goldie McLean had come in from work, and defendant replied that he didn't know anything about it and told him to leave. Witness stated that they were leaving the house when defendant reached and got a shotgun and presented it. There was further talk about whether the witness and his brother were going to leave, and when they were 40 or 50 yards from the house, defendant called, the witness turned, and just then defendant fired the gun and four shots went into Adkins' chest and one put out an eye. "The ball is there, but I cannot see out of it." Witness stated that he had never seen Bentley before and had had no cross words with him.
On cross-examination, witness stated that he was in the community looking for Goldie McLean; that he had been indicted for larceny of a middling of meat, but had been acquitted; and one time for driving under the influence of whiskey. He also had a little trouble in West Virginia, where they got him for being drunk.
Monty Adkins stated that he was with his brother Glenn on the night in question, and drove to defendant's house. They had gone to Valmead Cotton Mill and got to talking about seeing Lillie Brown, and turned back and went up there, driving a little while at a time, stopping and talking. They parked the car at the gate, walked up and hollered and inquired for Goldie McLean, and was told that she lived up the hollow. They went up there and asked if Lillie Brown was there, and Goldie McLean hollered and answered from the inside of the house that she had not come back from work. They started back to the car and seeing the light in Bentley's house, asked if Lillie Brown had come back from work. Bentley ordered them off the place and Glenn said they would be glad to go. While they were walking back to the corner of the yard, Bentley threw down a hatchet which he had, took a shotgun and presented it to them.
When the defendant first ordered them out of the yard, they were about fifteen feet from the door. When the shot was fired, witness testified they were about fifty feet away. While they were walking out they turned when defendant hollered, "I will see you fellows in a few minutes." This witness stated he got several shots, and his brother was shot on the knuckles and asked witness to drive.
Witness stated that both he and his brother were married and that they were out looking for women. He had heard some talk of Goldie McLean's reputation, but he was looking for Lillie Brown, who had the same reputation as Goldie McLean. After Mr. Bentley told them the girl did not stay there, they stopped again and asked for her because they saw the light on. They thought they would find out whether she had come back. Witness had been drinking whiskey, but did not know whether his brother had or not; had no whiskey with them.
The defendant testified that he had just gotten back home from Elizabeth City when the Adkins brothers came up to the premises in a boisterous manner, speaking loudly and cursing, and had previously been running their car up and down the road practically all night. The brothers wanted to know where Lillie Brown lived and were informed that she did not stay there. They then started cursing defendant, who told them to get away, and was told that they would leave "when they got damned good and ready." The brothers then went up to the next house and after about ten minutes, came back and began to beat on the side of the house. It was then daylight, and defendant was sitting in a chair at the door. The Adkins brothers said that they wanted something to eat, wanted breakfast, and were told that defendant had no breakfast. They then began cursing defendant obscenely. Glenn Adkins and his brother stood cursing awhile and then went out into a private road between the two houses, stopped and began cursing again. Defendant got a single-barrel shotgun, went to his room and got shells, and found the brothers, when he returned, walking back up the road toward the house, and defendant told them to come no further. They replied that they would make shoe strings out of Bentley, and then Bentley told them to come no further or he would shoot. They were 30 to 40 yards away when he shot. He stated that he was afraid the two men would come back and knew he could not do anything with them unless he used some kind of weapon. They were pretty drunk. Defendant admitted that he had had trouble in court.
Josephine Seehan corroborated the defendant in the principal features of his testimony.
At the close of the State's evidence and at the close of all the evidence, defendant moved for judgment as of nonsuit, which was denied. The case was submitted to the jury, which rendered its verdict as follows: "That the said Albert Bentley is not guilty of 'an assault with a deadly weapon with the intent to kill,' 'not guilty of an assault with a deadly weapon doing serious injury,' and to the question of the Clerk as to how they did find, they replied: 'Guilty of assault with a deadly weapon.' "
The defendant thereupon, through his counsel, moved the Court that he be discharged upon the ground that the issue upon which the jury returned a verdict of guilty was not submitted to it. Motion was overruled, and defendant excepted. Thereupon, the defendant moved in arrest of judgment for the reason that the verdict was insufficient to support the judgment pronounced. The motion was overruled, and defendant excepted.
Judgment followed that the defendant be confined in the common jail of Caldwell County for six months and assigned to work on the roads under the control and supervision of the State Highway and Public Works Commission.
Whereupon, the defendant appealed, assigning error.
Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.
W.H. Strickland, of Lenoir, for defendant, appellant.
Defendant's challenge to the trial draws into the discussion the verdict, the evidence, and a relevant part of the instructions to the jury. It is in their correlation the defendant finds reason for his discharge; and in the same correlation, the State finds cause for his detention.
In some features the case at bar closely resembles State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 recently decided. We refer to it for an analysis of the state under which the present indictment was brought, and for a discussion of the validity of convictions thereunder of lesser grades of assault than that charged. C.S. § 4639; State v. Goff, 205 N.C. 545, 551, 172 S.E. 407; State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Strickland, 192 N.C. 253, 134 S.E. 850.
Defendant has addressed no argument to the support of his general demurrer to the evidence, and the exception is presumably abandoned. Rule 28; In re Beard's Will, 202 N.C. 661, 163 S.E. 748, 749; Gray v. Cartwright, 174 N.C. 49, 93 S.E. 432.
Under the exception to the refusal to discharge the defendant, counsel does, however, argue specially that there was no evidence pointing to the offense of "assault with a deadly weapon" upon which the sentence of the Court rested.
If we are to understand the appellant to base his demand for discharge merely on the fact that the jury by an act of grace has found him guilty of a minor offense, of which there is no evidence, instead of the more serious offense charged, this is to look a gift horse in the mouth; more especially, since the conclusion that there is no evidence must be reached by conceding that all the evidence, including the admission of the defendant, points to a graver crime. Such verdicts occur now and then, despite the efforts of the courts to discourage them. When they do, although illogical or even incongruous since they are favorable to the accused, it is settled law that they will not be disturbed. State v. Robertson, 210 N.C. 266, 186 S.E. 247; State v. Smith, 201 N.C. 494, 160 S.E. 577; State v. Cox, 201 N.C. 357, 160 S.E. 358; State v. Spain, 201 N.C. 571, 573,...
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