State v. Conly

• Decision Date: 13 May 1902
• Citation: 41 S.E. 534,130 N.C. 683
• Parties: STATE v. CONLY.
• Court: North Carolina Supreme Court

41 S.E. 534

130 N.C. 683

STATE v. CONLY.

Supreme Court of North Carolina

May 13, 1902

Appeal from superior court, Rowan county; Coble, Judge.

Archie Conly was convicted of murder, and he appeals. Affirmed.

On a prosecution for a homicide, an instruction presenting every phase of murder in the first degree, murder in the second degree, manslaughter, and self-defense, considered, and held a proper exposition of the law applicable to the case.

The defendant was tried at November term, 1901, of Rowan superior court before Coble, J., for murder in first degree convicted, and sentenced to hang. When the case was called for trial, the defendant renewed, and insisted on, a previous motion to continue. Motion overruled. At the beginning of the trial the solicitor for the state was not present; the state being represented by Messrs. Theo. F. Kluttz and Walter Murphy, who were recognized by the court as appearing for the prosecution. Counsel for defendant stated in open court that the defendant stood upon his rights, and waived nothing. Messrs. Kluttz and Murphy had been employed by a private prosecutor, and had appeared, with the approval of the solicitor and the recognition of the court, from the beginning of the trial.

The following witnesses were called, sworn, and examined:

Forney Peterson testified: Was present at the killing last Friday night. It was at a reception at Mrs. Setzer's. Moses Todd walked out of the house, got down on the steps, and lit a cigarette. The defendant, Archie Conly, was standing on the ground, with some others beside him. Defendant said to Moses Todd, "Give me a draw off of your cigarette." Todd said, "What do you mean?" Defendant said "Give me a draw off of your cigarette if you want to. If you don't, go to hell." Todd said: "I won't give you a draw, and I won't go to hell, either." Just then Gus Davis, the deceased, walked out right behind Moses Todd. Todd and the defendant had some more words. The deceased said to Ernest Watters, "Let's go to room;" and they said to Moses Todd, "Duck, what are you doing standing here? Are you a dead man?" Then the defendant said to the deceased, "What in hell have you got to do with it?" The deceased said, "I haven't anything to do with it, my friend. I am not speaking to you." Deceased said, "I am going home;" and he and Moses Todd walked off together. Todd was in front. Defendant said to deceased, "I don't care nothing for a nigger like you;" and deceased said "I don't care nothing for you either." Defendant said, "Do you want to fight?" And deceased said, "No; I don't want to have anything to do with you;" and some one hollered, "Get him Archie;" and the defendant grabbed the deceased with his left hand, and made a pass at him with his right hand, and deceased threw up his hand and hollered, "Boys, don't let him kill me like that." Deceased made a break and run, and the defendant right behind him, and Moses Todd right behind defendant, and Ed Smith and Will Evans following and hollering, "Don't Archie." Deceased ran about 15 yards and fell, and defendant started to get on him, and Ed Smith caught defendant by coat. Defendant made two or three passes at deceased, and Moses Todd kicked defendant, and defendant got up and said, "I am gone." Witness and Will Evans picked deceased up off the ground. Defendant ran down railroad towards Charlotte. Deceased said, "Please some one get the doctor." Todd and Smith went for the doctor, and witness went to hotel and phoned for Dr. McKenzie. They carried deceased to doctor's office, and when doctor came in he said deceased was dead. Witness knew he was dead. Cross-examined: Witness not expecting any difficulty. There was nothing to show that there was any trouble between deceased and defendant before deceased came out and asked Moses Todd, was he a dead man. From time deceased came out of home till he was killed was a very short time.

Moses Todd testified: Was present night of killing. It was across the railroad, over at Mrs. Setzer's. Witness came out on steps, struck a match, and lit a cigarette. The defendant was standing on the ground, and said to the witness, "Give me your cigarette stump, boar." Witness did not pay much attention. Defendant said something else, and witness said something. Then defendant said, "If you don't want to, you can keep it and go to hell, God damn you!" And witness walked out on the ground and said, "You see how a man has to be cursed about his own things." Witness walked away about six or seven feet. The deceased was standing on the porch and said to witness, "Are you a dead man." And witness said to deceased, "No; I am not a dead man, but I don't care to be bothered with a hobo." Defendant asked deceased what in hell he had to do with it, and deceased said: "I was not talking to you. I was talking to" witness. Defendant said, "If you fool with me I will cut that collar off your neck, you damn son of a bitch!" And somebody said, "Boys don't have any fuss." Witness said to deceased, "Come on; let's go." Witness and deceased started off together. Witness was 6 or 7 steps in front of the deceased. Defendant was standing in the crowd. When within about 10 or 15 steps from the crowd, he heard some one say, "Get him, Archie." Witness did not pay much attention, but happened to turn his head, and defendant was in arm's reach of deceased; and, before witness could say anything at all, defendant grabbed deceased with his left hand. Defendant grabbed deceased around his neck with his left hand, and stabbed him in the neck with a knife or something in his right hand. Deceased broke loose, and defendant struck at him again, and cut him on the hand. Deceased said, "Are you going to let him kill me?" and started to run. He ran 10 or 15 yards and fell. Defendant was right after him, and stabbed him twice when he fell. It seemed like he hit him in the neck the first time, and the second time in the back. Witness hit and kicked defendant while he was on deceased. Ed Smith caught by the coat, pulled and shoved him. Defendant jumped up and says, "I am gone," and went down the railroad. Deceased looked at witness and said, "You seem to be the only friend I have. Will you go for the doctor?" Witness and Ed Smith went for the doctor. Other boys carried deceased to doctor's office. Deceased did not live over ten minutes. Before witness made his cigarette, nothing was said between defendant and deceased. Cross-examined: Witness supposes that deceased thought there might be some trouble when he asked witness, was he a dead man. When defendant said to deceased, "I will cut that collar off your neck, you damn son of a bitch, if you fool with me," deceased shook his finger at defendant and said "No; you won't do nothing to me." Witness does not know whether defendant was drunk, but he acted like he had been drinking. Witness had not been there long. Was not there more than 10 or 15 minutes in all.

Ed Smith testified: "Was at the difficulty. Had been home with a girl, and come back. When I got back, there was a crowd out there. I heard one person say, 'Damn you!' and another say, 'You say damn me?' and the other said, 'Yes,' and they went together. There were two or three boys between me and the two that were fighting. Defendant threw his hand around the neck and shoulders of the deceased, and did something with his right hand. I could not tell what he had in his, but he kinder twisted his hand around. Deceased threw up his hand and broke loose from the defendant and run, and the defendant after him, and deceased stumped his foot and fell, and defendant got down on him and made two or three motions towards his shoulders, and deceased said, 'Oh! Oh!"' Witness made a long step and got in front of Todd and pushed defendant off deceased. Defendant stepped away and said, "I am gone." Some of the boys went for the doctor, and some carried deceased to the office. Deceased died in five or six minutes. Cross-examined: It was about midnight. Defendant and deceased were right close together all the time. All done just as quick as it could be. The words, "Damn you!" and "You damn me?" were spoken by different persons. Did not see defendant drink any, but he acted like he had liquor.

Will Crowell testified: Met the defendant about 1 o'clock on the night of the killing on corner of Main and Liberty streets. Defendant said, "Hello, Zeke." Witness said, "Hello, Archie." Defendant said, "I cut a damn nigger over yonder at the dance," and showed witness the blood on his hand. He had a Barlow knife open in his hand. Defendant said he would go and lie down. Witness went with policeman to house of Ella Jones. They found defendant there. He was between the mattress and the slats of the bed. Officer Eagle pulled him out by the feet. Two officers were present. No threats made. No inducements offered. Witness said to defendant, "You murdered my friend, Gus Davis," and defendant replied, "Let him die and go to hell, the son of a bitch." (Objection by defendant on ground of duress. Overruled. Exception.)

Officer Eagle testified: "Am a policeman. Found the defendant, the night of the killing, at house of Ella Jones. He was between mattress and slats of bed. Officer Monroe was with me, and several negro boys. Told defendant to come out." He didn't come, and witness pulled him out. Defendant was mad. No threats. No inducements. Witness had his pistol in his hand while defendant was under bed. Will Crowell said to defendant, "You have killed my friend Gus Davis." The defendant said, "Let him die and go to hell, the son of a bitch." (Objection and exception by defendant.) Cross-examined: "I heard all that was said."

W. A Monroe testified: "Am a policeman. Was present at the arrest of the defendant. No threats. No inducements. Had my pistol out...