State v. Cooper, 3

• Decision Date: 28 February 1968
• Docket Number: No. 3,3
• Parties: STATE of North Carolina v. Theophilus COOPER.
• Court: North Carolina Supreme Court

Page 305

159 S.E.2d 305

273 N.C. 51

STATE of North Carolina v. Theophilus COOPER.

No. 3.

Supreme Court of North Carolina.

Feb. 28, 1968.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. George A. Goodwyn, and Asst. Atty. Gen. William W. Melvin, Raleigh, for the State.

Pritchett, Cooke & Burch by Stephen R. Burch, Windsor, and Bailey & Bailey, by Carl L. Bailey, Jr., Plymouth, for defendant appellant.

PARKER, Chief Justice.

Both the State and the defendant intorduced evidence.

The sole assignment of error in defendant's brief is that the court committed error in denying his motion for a judgment of compulsory nonsuit at the close of all the evidence.

The evidence for the State tends to show the following facts: Defendant operated a house known as the Jungle on Sand Hill in the town of Plymouth. It was a rented four-room house with two bedrooms, a living room and a kitchen. He operated it as some kind of a night spot or a club.

On 20 May 1967 Robert Biggs was in this house slightly drunk and asleep. He was awakened by a gunshot and saw the defendant with a gun in his hand. When he looked up he saw defendant sitting on the end of a table opposite him. As soon as the firing ceased, Biggs started out of the house, and as he did so James Sanders backed up against him. Biggs saw no knife in James Sanders' hands. He does not know how far Sanders was from defendant, and he heard only two shots. When he left the house, he went to his home.

Peter J. McNair on this night was in a room adjoining the kitchen of defendant's house playing 'skin' with about five people. There was a doorway between the two rooms but no door. He had seen James Sanders in the house that night. Sanders had had a drink, but he was not drunk. Defendant left the room where McNair was and went into the kitchen. Shortly after defendant went into the kitchen, McNair heard three shots. McNair started out of the room through the opening where the doorway was. He saw Sanders lying near the door. He did not see any knife or anything in Sanders' hands. He did not hear too much of an argument before the shots. He testified, 'In a place like that you can't hardly tell whether you are hearing argument or not, piccolo playing, lot of noise going on.' Defendant had played some cards with them that night, but he was not chipping the pot or charging so much a game. He arrived at this house about 11 o'clock that night. After he heard the shots, he went out through the kitchen because he was interested in getting out of this house.

On 20 May 1967 Freeman Davenport went to the Jungle operated by defendant. When he arrived the boys were already playing cards, and he started in with them. He stayed several hours playing cards. He had nothing to drink. He was sitting with his back to the doorway. He heard some shots and saw Sanders fall. He saw no knife in Sanders' hands. He thinks he heard two shots. After he heard the shots and saw a man lying on the floor, he left and went home. Davenport testified: 'I didn't look to see who was in there or what happened. Yes, it was just a mad scramble, everybody trying to get out of there.'

About 6 a.m. on 20 May 1967 Wallace Edward Craddock, a police officer of the town of Plymouth, was called to the hospital there to investigate the shooting of James Sanders. He went into the emergency room and saw James Sanders lying on the emergency table, stretched out. His clothes were off down to his waist. After seeing Sanders in the emergency room, he went outside and asked several people what had happened. At that time defendant was not there. Craddock went back into the hospital and when he came out about ten minutes later, defendant was in the lobby of the hospital. Craddock testified without objection in substance, except when quoted: He did not place defendant under arrest at that time. He said to defendant, 'Hash, what happened?' Defendant said, 'Well, I had to shoot at another one.' They had a general conversation. The officer said, 'Don't you know better? What happened?' Defendant said, 'Well, I couldn't help it. You know I am kind of scarey and I do things like that.' The officer said, 'Where's the gun?' Defendant said, 'Out here in the car. Come outside with me.' Defendant went to his car parked near the hospital, opened the left-hand door, turned the back of the front seat down, and there was a pistol and a knife lying on the floor. Defendant picked them up and passed them to the officer and said, 'Here's the gun I shot him with and here's a knife he was threatening me with.' The officer said, 'Well, you know I am going to have to charge you.' Defendant said, 'Well, I understand that. I reckon I can take care of it.' The officer said, 'Let's go down to the station, talk about it.' Defendant asked him, 'How's Sanders?' The officer replied, 'I don't know really, I think in pretty bad shape. We will have to wait.' Defendant said, 'Can I wait with you?' The officer said, 'Of course, come inside.' They went inside and stood around talking. Dr. Stanton walked out and said, 'He is dead.' Defendant said, 'My God.' The officer said, 'Hash, that makes it from assault to a murder charge.' Defendant said, 'I understand.' The officer told defendant that he knew his rights and that he could call a lawyer or anybody he wanted to. Defendant got in the car with him. The officer let him stay in the station calling different people for twenty or thirty minutes before he put him in jail. During the conversation in the hospital, the officer told defendant that he did not have to tell him anything, that anything he said could he used against him, and defendant said, 'I understand completely.'

It was stipulated that Dr. A. M. Stanton, a physician and general surgeon practicing medicine in the town of Plymouth, was an expert physician specializing in the field of general surgery. He was on duty in the hospital when Sanders was brought in, and he examined the body. When Dr. Stanton first saw Danders in the emergency room, he had no blood pressure or pulse and was almost dead. He had three bullet wounds--one in his left wrist about where one would wear a watch, another in the lower part of the abdomen in line with his navel, and another in his left thigh about an inch below the belt. In Dr. Stanton's opinion the bullet wound in the abdomen ruptured a large blood vessel, about the size of a thumb, which carries blood to the lower extremities, and this wound caused his death. The wound in the wrist looked like maybe a bullet had gone through the wrist into the abdomen. Sanders could have been shot twice.

Defendant's testimony in brief summary is as follows: On 20 May 1967 he rented a house on Sand Hill and operated it as a kind of night spot, a club like. There is a woods or swamp back of the place. The place was called the Jungle. He operated it for the benefit of people who did not have anywhere to go. On the night of 19 May 1967 and in the early morning of 20 May 1967 a number of people were in this house. There was a card game going on in the room adjacent to the kitchen. Defendant has known the deceased Sanders since he was a little boy. Defendant was about 11 years older than he was. Sanders was about half drunk when defendant saw him that night. Sanders had a general reputation as a dangerous and violent man when drinking. The first part of the night defendant was playing cards. He had occasion to go into the kitchen about 4:00 or 4:30 a.m. Hazel Barrow was in the kitchen cooking chickens. While defendant was in the kitchen, Sanders came up behind him playing and hit him on his back. He told Sanders, 'Stop playing so much, when you're drunk you act like a little child.' A little later he heard Sanders say, 'M.F., I don't like you noway.' He looked around and saw Sanders coming on him with a knife. Then Sanders said, 'Another G.D. word, I am going to pull your head off.' Defendant was back in the corner and saw Sanders coming toward him with a knife in his hand. He shot into the floor with a pistol he carried hanging out of his hip pocket for protection. After this shot it seemed like Sanders was coming on a little faster, and he shot at him three or four more times hitting him in the hand and in the stomach. He was afraid of Sanders and knew if he got to him with that knife he would cut him. He shot him in order to defend himself. After he shot him the last time, Sanders looked at him, kind of halfway laughed, turned around, walked back to the door, fell across two chairs, and then rolled over on the floor. After the shooting Sanders was carried to the hospital. On cross-examination defendant testified in substance: He ran this place to make some money. He sold ABC whiskey, and he had a chicken cook-out every Friday night. He had the loaded pistol on him for protection. He had shot a man thirty days before with this pistol in this same house. He paid a fine of $50 for shooting a boy who had a hawk bill knife around his son. Sanders never got close enough to cut him. He was in a corner and he shot Sanders before he could get close enough to cut him. Sanders was a larger man than defendant.

Curtis Davis, Jr., was in the house on the morning of 20 May 1967. His foot was broken and it was in a cast. He was a partner of defendant in the operation of the business. He testified as a witness for defendant substantially corroborating the defendant. Hazel Barrow, who was a cook for defendant in the place and a partner in the operation of the house, testified for him in substantial corroboration of defendant's testimony.

Benjamin F. Biggs testified in rebuttal as a State's witness that 'Hazel said, that I was to the stove cooking. She actually didn't see exactly what happened, when we talked, she didn't see no knife at that time.'

Viola Hyman testified in rebuttal as a State's witness in substance, except when quoted: She saw Hazel Barrow before Sanders' funeral. She asked Hazel how it happened. She testified: 'She told me, said that Buck...