State v. Church

• Decision Date: 02 November 1949
• Docket Number: 218
• Citation: 55 S.E.2d 792,231 N.C. 39
• Parties: STATE v. CHURCH et al.
• Court: North Carolina Supreme Court

55 S.E.2d 792

231 N.C. 39

STATE v. CHURCH et al.

No. 218

Supreme Court of North Carolina

November 2, 1949

The defendants, Garney Church, Charlie Wyatt and Dean Powers, were charged in three separate bills of indictment with assault with deadly weapon with intent to kill, inflicting serious injury not resulting in death, on Billy Vanover, Jack Vineyard and Myrtle Jean Price respectively.

Charlie Wyatt died before the trial, and the action abated as to him. The cases were consolidated for trial.

The State's evidence discloses that on the night of January 8, 1949, Myrtle Jean Price, Billy Vanover, Jack Vineyard John Vineyard, Lucille Greer and Pearlie Mae Lambert had driven from West Jefferson in a convertible Chevrolet automobile, which belonged to Jack and John Vineyard, to 'Pop Triplett's Place', in Wilkes County. The place was closed when they arrived, but while they were sitting in their parked car, about 11:15 or 11:30 P.M Charlie Wyatt went to the Vineyard car and said, 'How are you all?' Someone in the car answered, 'We are all right'. He left and immediately several shots were fired behind the Vineyard car. Some of the occupants of the Vineyard car had seen six men get out of an automobile shortly before the shooting started, and when the first shots were fired, six men were standing behind the Vineyard car. Myrtle Jean Price testified she could not identify any of the six men; that she got out of the car and went up to three of the men and said, 'Don't shoot any more in the car. There are girls in there '. She further testified that she thought the three men were Garney Church, Dean Powers and Charlie Wyatt, and that the one she took to be Garney Church hit her in the eye with his fist, which 'staggered' her, and someone hit her in the mouth, knocked out a front tooth, and she was 'knocked out'. On cross-examination she was not positive in her identification of any of the defendants except Charlie Wyatt, but she did say: 'To my best knowledge I saw Garney Church and Dean Powers there that night.'

The evidence further discloses that after the attack on Myrtle Jean Price, three of the men went on one side of the Vineyard car and three on the other; that Charlie Wyatt held a pistol on Billy Vanover, while Dean Powers dragged him from the car; that Vanover was beaten and left on the ground; that Jack Vineyard was shot while he was in the car, the bullet entering his shoulder.

Jack Vineyard testified that before Myrtle Jean Price got out of the car she looked through the glass and said, 'I see Garney Church. Let me out, I will stop him. ' Thereafter he started to get out of the car, and Charlie Wyatt had a pistol and punched him in the stomach. 'I just got one foot on the ground. Pearlie said, 'Look what they have done to Bill'. Somebody hit me with something and busted my skull and knocked me out. When I next knew anything was in Glendale Springs on my way to the hospital. ' He also testified that he later examined his car and one bullet entered the car through the back glass and 'it looked like they shot in from both front doors, (shots) went in each corner of back seat. * * * I was sitting on the left side of the back seat at the time I got shot.'

Mathie Triplett testified that he was at 'Pop's Place' the night of the shooting. 'I knew Garney Church. I have known him about three months. I saw him the night this shooting occurred. I saw him walking down the road from his car. That was before the shooting, a matter, I reckon, of a half or two minutes, something like that. He was walking from his car when I saw him. I know his automobile, it was there. I am positive it was him, I saw. I did not see the Vineyard boys or Billy Vanover or any of the witnesses on the stand. * * * We had lights in the house. * * * I opened the door and asked what was going on out there. Shooting was going on. I saw Church just a minute before anything started. * * * I was standing in the door when I saw Garney Church; I opened it enough to stick my head out the door. I didn't know none of the rest. I saw four men.'

The defendants moved for judgment as of nonsuit at the close of the State's evidence. The motion was overruled. The defendants offered no evidence and renewed their motion, which was again overruled.

The jury found the defendants guilty in each case of assault with a deadly weapon. The Court imposed a sentence on both defendants in each case, of two years in the common jail of Wilkes County, to be assigned to work on the roads under the supervision of the State Highway and Public Works Commission, the sentences to run consecutively.

The defendants appeal, assigning error.

Attorney General Harry McMullan and Assistant Attorney General Ralph M. Moody and Forrest H. Shuford, II, Raleigh, of Staff, for State.

F. J. McDuffie, Wilkesboro, and Trivette, Holshouser & Mitchell, North Wilkesboro, for defendants.

DENNY Justice.

These defendants seriously contend that their motion for judgment as of nonsuit should have been granted for the following reasons: (1) That the identity of the defendants was not sufficiently shown to warrant the submission of the charges to the jury; and (2) that the evidence is insufficient to show that the defendants conspired to assault Jack Vineyard, Billy Vanover and Myrtle Jean Price, or that they were acting in concert or aiding and abetting one another when the assaults were made.

We think the evidence adduced in the trial below, when considered in the light most favorable to the State, as it must be on motion to nonsuit, is sufficient to carry each of these cases to the jury as against both defendants. State v. Gentry, 228 N.C. 643, 644, 46 S.E.2d 863; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Gordon, 225 N.C. 757, 36 S.E.2d 143; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Woodard, 218 N.C. 572, 11 S.E.2d

The inability of the State to introduce evidence as to the identity of three of the six men who were present and aiding in the assault on these prosecuting witnesses, has no material bearing on the question of the guilt or innocence of these defendants. The evidence is unequivocal as to the presence and conduct of Charles Wyatt and Dean Powers, and while the prosecuting witness, Myrtle Jean Price, would not say positively that she knew Garney Church and Dean Powers were two of the three men she requested not to 'shoot any more in the car', she did testify that she thought they were present and that she thought Garney Church was the person who hit her in the eye with his fist. The fact that this witness was not positive in her identification of these defendants did not make her testimony inadmissible. The lack of positiveness as to the identity of Dean Powers and Garney Church went only to the weight and not to the admissibility of her testimony. Stansbury, N.C. Evidence, Sec. 129. State v. Lytle, 117 N.C. 799, 23 S.E. 476; State v. Costner, 127 N.C. 566, 37 S.E. 326, 80 Am.St.Rep. 809; State v. Carmon, 145 N.C. 481, 59 S.E. 657; State v. Lane, 166 N.C. 333, 81 S.E. 620; State v. Walton, 186 N.C. 485, 119 S.E. 886; State v. Lawrence, 196 N.C. 562, 146 S.E. 395. Moreover, there is other evidence on this record which tends to show that Garney Church was present before the shooting started and while the assaults were being committed. These assignments of error will not be sustained.

The defendants also excepted to and assign as error the admission of the testimony of Myrtle Jean Price, as to the identity of Garney Church, in response to the following inquiry by the Court: 'Tell upon what ground you thought you recognized him? ' Among other things the witness said: 'He was at the cafe earlier in the afternoon. They were in there talking. He said he had some dealings with Billy Vanover and he was going to get even with him, he didn't say how or when. * * * I had known him all my life. He was raised in the same community I was.'

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