State v. Collins

• Decision Date: 24 January 1925
• Docket Number: 420.
• Citation: 126 S.E. 98,189 N.C. 15
• Parties: STATE v. COLLINS.
• Court: North Carolina Supreme Court

126 S.E. 98

189 N.C. 15

STATE v. COLLINS.

No. 420.

Supreme Court of North Carolina

January 24, 1925

Appeal from Superior Court, Anson County; Lane, Judge.

Jim Collins was convicted of murder, and he appeals. Affirmed.

Evidence held to warrant submission to jury of a question whether defendant had time for premeditation and deliberation.

The prisoner was charged with the murder of A. C. Sedberry on July 19, 1924, and he appealed from the judgment pronounced on conviction for murder in the first degree. At the trial he did not testify or introduce any evidence. The salient features of the state's evidence are substantially as follows:

On the day of the homicide the deceased was engaged in scraping the public road leading from White Store to Peachland. He and Baxter McRae were running a road grader, which was pulled by a truck; McRae operating the truck and the deceased the grader. They met a car driven by Frank Gulledge, in which were Jack Polk, Henry Watts, and Jack Crowder. The prisoner was on the running board. During a part of 1924 the prisoner had worked for the deceased, but had left him, and was employed by William Gulledge when the homicide occurred. The deceased had the car to stop when it approached the truck and this conversation followed:

Sedberry "Jim, why did you do like you did this morning?"

Collins "Did what?"

Sedberry: "Send Oscar Gulledge for the money."

Collins: "I just sent him."

Sedberry: "Ain't you a man of your own?"

Collins: "I am."

Sedberry: "Why did you not come and get it?"

Collins: "I just didn't come."

Sedberry: "I owe you $2.37, and carried you one night to see the doctor, didn't I?"

Collins: "You did."

Sedberry: "I didn't intend to charge you for that, if you had staid your time out that you hired to work, but, as you did not, I am going to charge you $2.50 for that trip; that leaves you owing me 13 cents, and I am going to strike off even with you."

Collins: "I don't give a d___n what you do with it."

Sedberry (after stepping down from the road machine): "Don't you cuss me."

Collins: "I didn't cuss you."

Sedberry: "You cussed at me."

The subsequent conduct of the two is described by Baxter McRae:

"Sedberry then got hold of Jim, pulled him off the fender of the car, hit at him, and slapped him a time or two after he stepped on the ground. He hit him across the head, and, while being hit, Jim was holding up his hands. Sedberry then turned Jim loose, and Jim stepped back and opened his knife and started to him, and Sedberry picked up a rock and said, 'Don't you come on me with that knife.' Jim then backed off and closed the knife. Sedberry then got back on the road machine and said, 'Let's go,' and we started down the road. This happened just beyond Jack Polk's house. Jim started following us up the road, and Jack's wife called to him from the window and said, 'Don't you come up here; go back the other way.' When we got about 50 yards beyond Jack Polk's house, Jim Collins came on down there again and hollered to me to stop the truck. He spent the nights at Jack Polk's, but worked for and boarded with Mr. Gulledge. When we had gone about 50 yards on the opposite side of Jack's house, Jim came down near where we were and hollered to me to stop the truck. Sedberry said, 'Go on.' Then Jim aimed the gun at Sedberry and looked up. Just at that time Jack Polk ran up, jerked the gun down, and it fired in the ground about 3 feet behind the scraper. The gun looked like it was aimed at Sedberry's head. Jim and Jack went back towards the house tussling over the shotgun. Jack was trying to take the gun away from him and finally did get it. They tussled for about 50 yards over the gun going toward Jack's house. We went on down the road across the swamp with the truck and scraper, and, when we had gotten about 290 yards from where the gun was fired, I saw Jim Collins coming and said, 'Here comes that negro.' Sedberry looked around and Collins shot while he was running. He didn't say a word and shot one time, turned around, and went back. He shot with a 32 Colt's automatic pistol. He was running when he shot. It is 335 yards from where he overtook us to Jack Polk's house. He got within about 25 feet of Sedberry before he shot. I saw that he was shot just above the hip. I helped him get on the truck and carried him to White Store. It was about 385 yards from where we first met Collins to where he shot Sedberry. It was from a half to three-quarters of an hour from the time of the quarrel in the road until Collins shot Sedberry."

Jack Polk testified as to the shooting:

"I rode off on the running board, and, after getting up the road a little way, I saw Jim coming out of my house with my gun going down the road towards Sedberry. I told Mr. Gulledge to look yonder; 'Jim's got my gun, stop and let me get off.' He slowed up; I jumped off, and went running back towards where Jim was. I met my wife and she said, 'Jack, where are you going?' I said, 'Don't you see Jim with my gun? I am going to get it from him.' I overtook him, and he had the gun cocked and aimed at Mr. Sedberry. I grabbed the gun and said, 'What you mean? Give me my gun. What you mean by taking my gun out of the house? Give me my gun, and let that man alone.' It fired just as I knocked it down. Then me and Jim tussled over it. While we were tussling, I told him to give me my gun, and asked him didn't he have good sense, and let the man alone, and after a while I got it loose from him; we were near the house when I got it. I ran in the house with the gun, and went in the back part of the house, and saw him near me when I went in the dining room, and he come in behind me when I was putting up the gun, and, when I looked around, he was going around the house on the left side. He was going back toward Sedberry. I went out the back door; I didn't see any pistol, didn't know he had one, and had never seen him with one. My wife was going up the road, calling me to come on. I was not going toward the truck. The last I saw of Jim he was going around the house in the direction of the truck. He was running. The next time I saw him he was up the road toward Mr. William Gulledge's; he didn't say anything about shooting Sedberry. I knew he had been shot, and didn't say anything to him. He told me to get his money from Mr. Gulledge, and give it to him."

The foregoing testimony was corroborated by other witnesses, but under cross-examination they modified or varied their statement as to some of the circumstances. There was also evidence tending to show that the deceased beat the prisoner on the head, and caused him to become highly excited; that, soon after the fatal shot was fired, the prisoner said that he had shot a man, and wanted to give himself up to the sheriff; that he told William Gulledge that he had shot the deceased, and wanted his money at once; that Gulledge told him to go to Ben White's, and stay there until he could go to the store and get some change, but a large crowd soon gathered near by; that the deceased was a white man, 6 feet in height, weighing about 215 pounds, and the prisoner a colored boy about 19 or 20 years of age.

Dr. Hart testified as follows:

"I was called to see A. C. Sedberry on the 19th of July, 1924; found him lying on the porch of Mr. E. E. McRae's house at White Store with a pistol shot wound in his back. The bullet entered the body about 3 inches to the left of the spinal cord and just above the hip bone, passing upward and to the right--penetrating the intestines 10 times, cutting the liver, severed the nerve and arteries, and lodged just under the last rib on the right side. He was brought to the hospital here, and the bullet removed, and intestines sewed up. He suffered intensely and bled profusely. His chance was mighty small, but we operated to give him the benefit of the doubt, and he died Sunday morning, July 20, 1924, about 5 o'clock. His death was caused by the pistol shot wound."

Other testimony is referred to in the opinion.

H. H. McLendon and H. P. Taylor, both of Wadesboro, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

On his cross-examination the sheriff testified that he learned of the homicide about noon, and went immediately to White Store and thence to the home of Henry Collins, the prisoner's brother. He was then asked this question:

"Did you receive information from the defendant's brother, Henry, that he was close by and ready to surrender?"

The state's objection was sustained and the prisoner excepted.

There are two grounds upon which the ruling may be sustained: (1) Neither the form of the question nor the record indicates what the answer would have been. State v. Ashburn, 187 N.C. 717, 722, 122 S.E. 833; Barbee v. Davis, 187 N.C. 79, 85, 121 S.E. 176; Hosiery Co. v. Express Co., 186 N.C. 556, 120 S.E. 228; State v. Jestes, 185 N.C. 735, 117 S.E. 385; Snyder v. Asheboro, 182 N.C. 708, 110 S.E. 84. (2) The proposed evidence was inadmissible as hearsay. Evidence is termed hearsay when its probative force depends in whole or in part upon the competency and credibility of some person other than the witness from whom the information is sought, and such evidence, with certain recognized exceptions not applicable here, is uniformly held to be objectionable; the declarant not having spoken under the sanction of an oath, and not having submitted to cross-examination. Chandler v. Jones, 173 N.C. 427, 92 S.E. 145; State v. Springs, 184 N.C. 768, 114 S.E. 851.

The witness testified further that, soon after he arrived at the scene of the homicide, he saw probably 75 armed men between White Store and Gulledge's house, and that on Sunday the number increased possibly to 1,000 men, many of...