State v. Blackwelder, (No. 467.)

• Docket Nº: (No. 467.)
• Citation: 109 S.E. 644
• Case Date: December 07, 1921
• Court: United States State Supreme Court of North Carolina

109 S.E. 644

STATE.
v.
BLACKWELDER.

(No. 467.)

Supreme Court of North Carolina.

Dec. 7, 1921.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Circumstantial Evidence; Direct Evidence.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Presence.]

Appeal from Superior Court, Cabarrus County; Bryson, Judge.

Frank Blackwelder was convicted of murder in the second degree, and appeals. No error.

Criminal action tried before Bryson, Judge, and a jury at the April term, 1921, of Cabarrus county. Frank Blackwelder and Sid McDaniel were indicted for the murder of M. W. Allman, but Blackwelder only was tried. When the case was called for trial, the solicitor announced that he would not request a verdict for murder in the first degree, but only for murder in the second degree, or for manslaughter, as the evidence might warrant. The jury returned a verdict against Blackwelder for murder in the second degree. The judgment of the court was pronounced, and the defendant, having en-

[109 S.E. 645]

tered exceptions of record, appealed to the Supreme Court.

There was evidence for the state tending to show the facts to be as follows: M. W. Allman resided in Cabarrus county, some distance from Concord, the county seat, and about a quarter of a mile from the cross roads. On the occasion hereinafter referred to, he, his wife, and his son were at his home. Between 1 and 2 o'clock on the morning of January 4, 1921, the defendant arrived at Concord on a train which had come from Charlotte, and at the station met McDaniel and a man named Jones. The defendant, after a conversation with the other two, went to the Hartsell mill, and took a pistol and some cartridges from a traveling bag which he had left at the home of Mc-Daniel's mother. About 2 o'clock these three men left Concord in a Ford car, and went in the direction of the place at which the deceased lived, and about 4 o'clock in the morning a car passed the residence of the deceased, and. stopped in front of his garage, which was about 50 yards from the residence; the wife of the deceased about this time heard the door of the car close, and raised the curtain, looked through the window, and saw the car go on down the road. In about three minutes the car returned, and again passed the residence of the deceased, and stopped at a distance of about 40 or 50 yards from the house in the road leading to Concord. The deceased, his son, and his wife had been disturbed by the noise, and the deceased, going out to make an investigation, called out, "What are you doing there?" Just prior to this time, or about this time, the son of the deceased heard the door of the garage open, and, taking the shotgun, went to the piazza and fired the gun twice. The ear which had stopped beyond the house thereupon moved on in the direction of Concord, and the deceased and his son a few minutes thereafter took the car of the deceased from the garage and went in pursuit of the other car a distance of about two miles, when, failing to overtake it, they returned in the direction of their home.

When about a mile from home, the deceased and his son met the defendant and McDaniel in the road coining from the direction of their residence, and apparently going toward Concord. Upon their meeting, the deceased had the car stopped, and entered into a conversation with the defendant and McDaniel. The deceased inquired where Black-welder and McDaniel were going, and they said they were going to Concord. The deceased asked where they were from, and they said from Georgeville. The deceased asked their names, and Blackwelder said his name was Smith. The deceased inquired whether the car had run off and left them, to which Blackwelder answered, "No." The son of the deceased then got out of the car, walked in front of it, and the deceased thereupon told Blackwelder and McDaniel to come in front of the car so that he might see them in the light. They came in front of the car, find Blackwelder inquired whether the deceased knew them. The deceased said he did not, got out of his ear, took a position near his son, and said to Blackwelder and McDaniel: "Why do you hold your hand so closely in our pockets? You have a gun, haven't you?" Blackwelder and McDaniel had their hands in their overcoat pockets, and Blackwelder said, "Yes." The deceased took the shotgun which his son had. He had previously asked Blackwelder and McDaniel if they had been in his garage, and each of them said "No." The deceased said: "I have reason to believe you are the two fellows I ran out of my garage a few minutes ago." He asked them to take their hands out of their pockets, and Blackwelder remarked: "There is no use of that." The deceased then said: "If you were not in my garage at the time mentioned, why do you refuse to take your hands out of your pockets?" Blackwelder and McDaniel then began shooting with pistols, and the defendant fell at the first shooting. The shotgun which he held was fired as he fell, and again after he had fallen to the ground. The son was shot in each shoulder. McDaniel shot him and Blackwelder shot the deceased. They fired four or five times before the shotgun was fired. Blackwelder was shot in the hand, and, as he and McDaniel ran away, the son of the deceased fired two shots at them. The shotgun was the only weapon in the possession of the deceased and his son. The deceased was shot on the morning of January 4th, and died at 3 o'clock on the morning of the 7th.

The defendant, Blackwelder, was a mechanic, and worked in one of the mills at Concord, and had mechanic's tools which he kept in his suit case. On the morning following the homicide, defendant's glove and a pair of bolt nippers were found on the ground near the scene of the shooting. The defendant had previously pleaded guilty of carrying a concealed weapon and of larceny in Mecklenburg county, and had been sentenced to the roads for a term of 2 years. He had served about 13 months when he was pardoned. He had been charged with breaking into a store at Mooresville, and had been arrested on another occasion and, it seems, had been released after trial. There was evidence tending to show that the general reputation of the defendant was bad. It had been raining for some time before the shooting took place, and the deceased in his dying declaration said that he noticed when he met Blackwelder and McDaniel that they had very little mud on their shoes, though the road from his house to the scene of the shooting was very muddy.

[109 S.E. 646]

The state contended that Blackwelder, McDanlel, and Jones had gone in a car from Concord to the residence of the deceased for the purpose of committing larceny of the car which the deceased had locked in his garage; that Jones drove the car and that Blackwelder and McDaniel got out of the car when it stopped in front of the garage, broke the door, and were in the act of taking the car away when they were frightened by the deceased and by the firing of the gun; that the night was dark, and, after their car had left them, they secreted...