State v. Biggs

• Decision Date: 03 January 1944
• Docket Number: No. 650.,650.
• Citation: 32 S.E.2d 352,224 N.C. 722
• Parties: STATE. v. BIGGS et al.
• Court: North Carolina Supreme Court

32 S.E.2d 352

224 N.C. 722

STATE.

v.BIGGS et al.

No. 650.

Supreme Court of North Carolina.

Dee. 13, 1944.

Appeal from Superior Court, Guilford County; F. D. Phillips, Judge.

Elmer Hardie Biggs, Jr., William Dal-ton Biggs, and John Edgar Messer were convicted of murder in the first degree, and they appeal.

No error.

The defendants were charged with the murder of E. J. Swanson. The jury returned verdict of guilty of murder in the first degree as to each defendant.

This case was here at Fall Term 1944, and is reported in 224 N.C. 23, 29 S.E. 2d 121. On that appeal error was found in the admission in evidence of certain confessions which were held not voluntary, and a new trial was ordered.

In the trial now under consideration evidence was offered by the State tending to show that the deceased was shot and killed in the perpetration or attempt to perpetrate a robbery, in which all three of the defendants participated. It is not deemed necessary to recite here all the testimony which appears of record, but a brief resume of the material evidence pertinent to the questions presented by the appeal may be stated as follows:

On the night of February 19, 1943, between 8:30 and 9 o'clock, E. J. Swanson, then 67 years of age, was in his store in the village of Jamestown. There was an electric light in the store and one on the porch. Swanson's wife and a customer, O. M. Bundy, were present in the store. Two men, later identified as defendants, Wm. Dalton Biggs and John Edgar Messer, came in the front door, and one of them called for a package of cigarettes. Swanson, who was behind the counter near the cash register, waited on them and made change for a dollar bill. They then asked for-matches and as Swanson put the matches on the counter Wm. Dalton Biggs drew a pistol, pointed it at Bundy and told him to put his hands up, saying, "This is a hold-up." Swanson made some inarticulate sound and either sank or leaned down behind the counter, and Messer reached over the counter and shot him twice and killed him. The two defendants then ran out of the store. Two other witnesses, Doris and Mildred Ray, who lived nearby, were at this moment coming across the street to the store. They saw a blue Ford coach fifty feet from the store, and Doris Ray recognized and later identified the defendant Elmer Biggs as the man sit ting under the wheel. The moon was shining bright, the weather was warm, the glass of the automobile was down and she had a clear view of this man. Half way across the street these witnesses heard a noise in the store, hurried to it, and saw the defendants, Wm. Dalton Biggs and Messer, run out, passing within ten feet of them, and get in the automobile and drive away.

It further appeared in evidence that on March 31st following, these four witnesses went to Danville, Virginia, and identified these three defendants as the men they had testified as having seen in Jamestown the night of the homicide. Defendants were then in custody and the witnesses picked them out from a group. When Mrs. Swanson told Messer and Wm. Dalton Biggs she recognized them as the ones who entered the store and shot her husband they hung their heads and said nothing. When Doris Ray told Elmer Hardie Biggs she identified him as the one she saw under the wheel of the automobile in Jamestown he asked, "Are you sure of that?", and when she said, "I am positive, " he said, "Well, there is nothing else I can say."

Evidence was offered and admitted over objection that on March 16th, 1943, twenty-seven days after the homicide at Jamestown, these three defendants were observed driving in a blue Ford coach automobile in Danville, Virginia, and that Elmer Hardie Biggs was under the wheel and Messer and Wm. Dalton Biggs were on the seat beside him; that shortly thereafter Messer and Wm. Dalton Biggs entered the filling station of R. F. Barber and asked for smoking tobacco. Barber waited on them, and they drew pistols on him, saying it was a hold-up, and forced him to open the cash drawer and robbed him of $140. They then backed out of the door and told Barber not to follow. They started running in the direction of the place where the other witness had seen the automobile, and Barber picked up his own pistol, ran out the back door and shot at them, and they shot back at him three times. The witnesses identified the defendants as the men they had seen on this occasion in Danville.

There was also evidence that the following morning, March 17th, Wm. Dalton Biggs was arrested in Reidsville in a blue 1938 model Ford coach, identified as thesame automobile in which the defendants were seen in Danville, and Messer and Elmer Hardie Biggs were arrested March 18th, near Reidsville, in a closed paneled truck. In the truck beside them was found a photograph of Messer and Elmer Hardie Biggs, each with a pistol in his hand. There was also evidence that defendant Wm. Dalton Biggs while awaiting trial had attempting to escape from jail.

The defendants offered no evidence and did not go on the stand. The jury returned verdict of guilty of murder in the first degree as to all three of the defendants. The court pronounced sentence of death by asphyxiation as provided by law, and the defendants appealed.

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

R. R. King, Jr., of Greensboro, and P. W. Glidewell, of Reidsville, for defendants.

DEVIN, Justice.

The defendants were tried under a bill of indictment charging them with the murder of E. J. Swanson. The evidence offered tended to show that Swanson was feloniously slain, and that the murder was committed in the perpetration or attempt to perpetrate a robbery. This brought the offense within the specific language of G. S. § 14-17, and constituted it by force of the statute murder in the first degree. State v. Alston, 215 N.C. 713, 3 S.E.2d 11. The question with which the defendants are chiefly concerned is whether there was sufficient evidence to connect them or either of them with the crime charged, and, if so, whether there was error in law in the trial which would entitle them to another hearing.

The defendants noted numerous exceptions in the course of the trial, and in their appeal have assigned error in many rulings of the trial court. However, these are presented in their well prepared brief in four groups which we will now consider.

1. The defendants excepted to the denial of their motion for judgment of nonsuit on the ground that the evidence of identification of the defendants by the witnesses at the scene of the homicide was insufficient to carry conviction by reason of discrepancies and inaccuracies in certain particulars pointed out, especially in the case of Elmer Hardie Biggs. But an examination of the testimony offered by the State shows that the commission of the offense charged and the identification of the defendants therewith was sufficiently definite and positive to require submission of the case to the jury as to each one of the defendants.

2. Defendants' prayer for instruction to the jury that they might render verdict of guilty of murder in the second degree was properly denied. All the testimony tended to show that the felonious slaying of the deceased was committed in an attempt to perpetrate a robbery. There was no other view presented by the evidence. This brought the crime within the statutory definition of murder in the first degree. Hence the court correctly charged that if the defendants were guilty at all they were guilty of murder in the first degree, and that the only verdict the jury could render on the evidence was guilty of murder in the first degree or not guilty. The defendants offered no evidence and the defense was necessarily confined to contesting the credibility and weight of the State's evidence and the sufficiency of the identification of the defendants as the perpetrators or active participants in the crime charged. There was no evidence upon which a verdict of guilty of murder in the second degree could properly be founded. The trial judge's ruling was in accord with the decisions of this Court. State v. Smith, 223 N.C. 457, 27 S.E.2d 114; State v. Manning, 221 N.C. 70, 18 S.E.2d 821; State v. Miller, 219 N.C. 514, 14 S.E.2d 522; State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Ferrell, 205 N.C. 640, 172 S.E. 186; State v. Don-nell, 202 N.C. 782, 164 S.E. 352; State v. Myers, 202 N.C. 351, 162 S.E. 764; State v. Spivey, 151 N.C. 676, 65 S.E. 995; State v. Covington, 117 N.C. 834, 23 S.E. 337. In State v. Newsome, 195 N.C. 552, 143 S.E. 187, the same rule was declared though it was held that under the evidence in that case a verdict of second...