State v. Brooks

• Decision Date: 15 October 1947
• Docket Number: 149
• Citation: 44 S.E.2d 482,228 N.C. 68
• Parties: STATE v. BROOKS et al.
• Court: North Carolina Supreme Court

44 S.E.2d 482

228 N.C. 68

STATE v. BROOKS et al.

No. 149

Supreme Court of North Carolina

October 15, 1947

Criminal prosecution upon indictment charging the defendants with the murder of one George Bowman.

The defendants were prisoners serving sentences under the supervision of the State Highway and Public Works Commission and had been assigned to a prison camp in Henderson County.

The evidence tends to show that the defendants conspired to escape and that it was agreed to overpower a guard, obtain his rifle and use the rifle, if it became necessary, in order to escape. On 3 March, 1947, the defendants decided to carry out their plan of escape. They were working in a rock quarry and those in charge were preparing to set off a charge of dynamite. The prisoners were moving out of the quarry. Defendant Brown first entered a guard shack occupied by the guard, Gordon Morgan the defendants Brooks and Munn followed him into the shack. The guard was overpowered and his rifle was taken by Brooks. In the struggle the guard was knocked down an embankment 15 or 20 feet from the guard shack into a gravel bin. Brooks fired upon the guard and the guard returned the fire with his pistol. In the meantime another guard, George Bowman, was informed of the trouble and started towards the shack previously occupied by Morgan. The defendant Brooks, using the seized rifle, stuck the barrel through a hole in the guard shack and shot and killed Bowman. The defendants then escaped, carrying the seized rifle with them. After the defendants were recaptured, according to the testimony of J. E. Braswell, the officer in charge of the Fugitive Office of the State Prison Department, the defendant Munn told him 'They had agreed to make the break and that Brooks would use the gun and that Brown would make the attack * * * that Brooks used the gun because he knew how to operate it,' and that Brooks admitted he was the gun man.

Verdict Each defendant guilty of murder in the first degree. Judgment of death by asphyxiation was imposed upon each defendant. Defendants appeal, assigning error.

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

R. L. Whitmire, of Hendersonville, for J. C. Brooks.

W. W. Carpenter, of Hendersonville, for Grady Brown.

Charlton E. Huntley, of Hendersonville, for Thurman Munn.

DENNY Justice.

The defendants Brown and Munn except to the failure of his Honor to charge the jury on manslaughter.

The exception does not properly present this question. There was no request for such instruction. No exception has been entered to any portion of the Court's charge to the jury. And there is no exception reserved under the provisions of G.S. s 1-180, on the ground that the Court failed to explain the law arising upon the evidence in the case and pointing out wherein the Court failed to comply with the provisions of this statute. Even so, if such exception had been entered and preserved, it would be without merit.

These defendants contend that they did not knowingly aid or encourage Brooks in the commission of this homicide. They insist they were only engaged in an escape which is a misdemeanor, G.S. s 14-256, and therefore would not be guilty in any event, of more than manslaughter, citing State v Hardee, 192 N.C. 533, 135 S.E. 345; State v. Merrick, 171 N.C. 788, 88 S.E. 501; State v. Powell, 168 N.C. 134, 83 S.E. 310; State v. Durham, 141 N.C. 741, 53 S.E. 720, 5 L.R.A.,N.S., 1016; State v. Horner, 139 N.C. 603, 52 S.E. 136, 4 Ann.Cas. 841, and State v. Vines, 93 N.C. 493, 53 Am.Rep. 466. This contention on the part of these defendants cannot be sustained in the light of the evidence disclosed on this record. There was a conspiracy to escape. As a part of the common design or plan to escape, it was agreed that Brown was to attack the guard and Brooks, who knew how to operate the guard's gun, was to seize the gun. The exact procedure agreed upon was followed. Brown entered the guard shack, followed by Brooks and Munn. Brown did attack the guard, Brooks did seize his rifle and used it to fire on the guard Morgan and to kill the deceased, another guard, who was apparently going to the rescue of Morgan. The conduct of these defendants, in carrying out their conspiracy to commit an unlawful act was such as might naturally and reasonably have been supposed to result in a homicide. The defendants Brown and Munn were active participants in the commission of this homicide, giving Brooks aid and assistance; and under our...