State v. Davis

• Decision Date: 09 April 1919
• Docket Number: 347.
• Citation: 98 S.E. 785,177 N.C. 573
• Parties: STATE v. DAVIS.
• Court: North Carolina Supreme Court

98 S.E. 785

177 N.C. 573

STATE v. DAVIS.

No. 347.

Supreme Court of North Carolina

April 9, 1919

Appeal from Superior Court, Forsyth County; T. D. Bryson, Judge.

Will Davis was convicted of murder, and he appeals. No error.

In a prosecution for murder by a member of mob, evidence that, as the car in which deceased was riding approached, some one in the crowd said, "Let's hold him," was competent as part of the res gestae.

The prisoner was indicted for the murder of Charles White. In order to understand the questions presented to this court, it will be necessary only to state a portion of the testimony of Jacob Jackson, a witness for the state, and the assignments of errors, as follows:

Jacob Jackson testified:

"On November 17, 1918, in the evening, I was standing on Depot street, in front of Cook's Café, and a crowd of about 50 or 75 people came by, defendant, Will Davis, being in the crowd, and they made me come with them on down Fifth street, and just after crossing the railroad they held up one car, and the man in the car said he was a doctor, and the crowd let him go on by. They went on down to Fifth and Linden streets, and another car came down the hill, and they stopped it; three men went to the middle of the street and stopped the car. Will Davis was one of the three. One of the fellows had on a big overcoat, and the other one was a soldier boy named 'Red'--that being all I know of his name. I do not know the man who had on the big overcoat, nor do I know who was in front, when they stopped the doctor's car, but after stopping that car the crowd went about as far as from me to the end of the courthouse until they stopped the car that the man was shot in. The car in which the man was shot was coming towards town and down the hill, and the lights on the car were burning. They saw the car coming over the hill, and said, 'Let's stop him.' (The prisoner objected to what was said unless prisoner said it. Objection overruled. Exception by prisoner). They waited until the car got very near to them and then Will Davis, the man with the big overcoat on and the soldier named 'Red,' stepped out in the street in front of the car and stopped it. There were two men in the car. Mr. White was at the steering wheel. They made the other man get out of the car until they searched the car and got what they wanted out of it, and then made the man get back in the car. Mr. White said, 'I am the electric light man; let me by.' Some of the boys said, 'Let him by,' and others said, 'Don't let him by,' and about that time a pistol fired, and the man in the car hallooed that he was shot. After these three men got in front of the car and stopped it, Will Davis went on the south side of the car, which was the same side Mr. White was sitting on, the man that was shot, and Will Davis put his gun right through the ribs or arms of the top of the car, the top being up, right at White's side, and the shot was fired, and as the car drove away all of them--I reckon all of them that had pistols--commenced shooting at the car. I have been knowing Will Davis for about a year. I never saw defendant Jim Scales in the crowd that night, as I know of; I didn't know him. Immediately after Mr. White was shot, the crowd went on up the street and held up another man, but I do not know who the man was. The distance from where they held up Mr. White to where they held up the other man was about as far as from witness stand to back end of courthouse. Then the crowd went on towards Jordan's store, and stopped on the corner of Fifth street and Highland avenue, right under the light."

Under the evidence and the charge of the court, to which there was no exception, the jury convicted the prisoner, Will Davis, of murder in the first degree. He was sentenced to death, and appealed from the judgment, assigning the following errors:

"(1) The court erred in overruling the prisoner's objection and allowing the witness Jacob Jackson to testify that some one in the crowd, seeing a car approaching, said, 'Let's stop him,' as shown by the prisoner's first exception.

(2) There was error in overruling the prisoner's objection, and allowing the witness Jeff H. Jackson to testify that some one in the crowd of colored people said, 'We'll get him,' as shown by the prisoner's second exception.

(3) There was error in allowing the witness John C. Ayers to testify in regard to an assault made upon him by Jim Scales, over the objection of the prisoner, when there was no evidence that this defendant had anything to do with the assault on Ayers, or that he was in the crowd at that time, as shown by the prisoner's third exception.

(4) There was error in allowing the witness Ed. Gordon to testify, over the prisoner's objection, that a crowd was coming up Fifth street, and they said, 'Halt!' as there was no evidence that this defendant was in the crowd at that time, as shown by prisoner's fourth exception."

By consent of the solicitor, a verdict of not guilty was returned as to James Scales.

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

WALKER, J. (after stating the facts as above).

There was plenary evidence to show that the prisoner shot the deceased, inflicting a mortal wound from which he died. The charge of the court upon all the different phases of the case was exhaustive and correct in every particular, and there is no exception to it. We will proceed, therefore, to consider the questions of evidence.

First. There is a slight error of fact in this assignment of error, as the witness Jacob Jackson stated, not that "some one in the crowd said 'Let's hold him,"' but that "they," meaning, of course, the crowd, said so. But, assuming that he had referred to only some one in the crowd, the evidence was competent, and what we say here covers the second assignment of error. For the purpose of showing the admissibility of this evidence, we may well refer to Saunders v. Gilbert, 156 N.C. 463, at pages 470 and 471, 72 S.E. 610, at page 613 (38 L. R. A. [ N. S.] 404). In that case it appeared that many persons had gathered in the street and followed the plaintiff to his home, where they stopped in front of his house, some or all of them using abusive and threatening language. The question arose in the trial below whether these outcries of this mob, or unlawful assembly, were competent against each and every one of the crowd. With regard to this we said:

"The testimony as to what was said in the road and in front of the plaintiff's home was clearly competent. The res gestæ includes what was said as well as what was done. The acts and the outcries of this unlawful assembly--for that is, in plain speech and in law, what it was--is held to be competent as pars rei gestæ, and also as tending to show their purpose or quo animo. Nothing is better settled than this rule of evidence. State v. Rawls, 65 N.C. 334; State v. Worthington, 64 N.C. 594. We find it stated in 4 Elliott on Evidence, § 3128, that 'what is said and done by persons during the time they are engaged in a riot (or unlawful assembly) constitutes the res gestæ, and it is, of course, competent, as a rule, to prove all that is said and done'--the acts and words of the mob or any members of it, as in Rex v. Gordon, 21 State Trials, 485 (563), wherein evidence of the cries of the mob 'No Popery,' as it was proceeding towards Parliament House, were held competent and admissible as a part of the res gestæ."

This would seem to be a full answer to these objections. The same rule of evidence had been before stated, and applied, by us in Henderson-Snyder Co. v. Polk, 149 N.C. 104, 107 62 S.E. 904. We there held that, where two prisoners are engaged together in the execution of a common design to defraud others, the declarations of each relating to the enterprise, and in furtherance of it, are evidence against the other, though made in the latter's absence, if a common design has been shown, citing Lincoln v. Claflin, 7 Wall. 132, 19 L.Ed. 106. It is, perhaps, the universal rule that any act done, or any declaration made, by any one of the conspirators in the furtherance or perpetration of the alleged conspiracy may...