State v. Dawson, 831

• Decision Date: 02 February 1968
• Docket Number: No. 831,831
• Citation: 159 S.E.2d 1,272 N.C. 535
• Parties: STATE of North Carolina v. Edward W. DAWSON.
• Court: North Carolina Supreme Court

Page 1

159 S.E.2d 1

272 N.C. 535

STATE of North Carolina v. Edward W. DAWSON.

No. 831.

Supreme Court of North Carolina.

Feb. 2, 1968.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Lester V. Chalmers, Jr., Raleigh, for defendant.

SHARP, Justice.

Defendant's assignments of error raise only two questions: (1) Does each of the indictments charge a crime, and (2) will the State's evidence withstand the motions for nonsuit? The charge of the court is not in the record, and no exceptions to the admission of evidence were brought forward. Since the judge declared a mistrial in case No. 47 because the jury was unable to agree upon a verdict, the sufficiency of the evidence to sustain the charge in that case is not before us. The indictment itself sufficiently charges an assault with a deadly weapon. The four cases having been consolidated for trial, and none of the testimony restricted to a particular case, evidence pertinent to any case may be considered with reference to it.

The State's evidence tends to show the following facts: Ernest Farrington operates the E & R Grocery, a small store on N.C. Highway No. 54 about 4 miles east of Graham. Between 9:00 and 10:00 p.m. on 24 November 1966, the lights were on both inside and outside the store. The light was also burning on the porch of the Farrington residence across the road from the store. In the front of the grocery were two big windows and a picture window. Farrington was alone in the store when a bullet came through the wall about a foot below the right window and struck a television two feet from where he was standing.

At the time the shot was fired, Farrington's 16-year-old daughter Ernestine and her date, Earl Torrain, were standing in the front yard of the Farrington home. They heard a motor vehicle approach and slow down as if to stop. A noise, which they thought to be a shot, caused them to turn around. They saw a light green or blue, late-model truck speed away toward Graham. It was equipped with metal rods or pipes resembling a rack extending from the end of the bed forward over the cab. Mr. Farrington came out of the store and told Ernestine to tell her mother that somebody had shot into the store and to call the sheriff. He himself, however, immediately crossed the road and called Sheriff Stockard, who arrived in about fifteen minutes.

At about 9:57 p.m., Deputy Sheriff Hargrove, who was driving on Interstate 85, was notified of the shooting by radio from the sheriff's office. He turned off onto N.C. Highway No. 54 about five miles from the E & R Grocery. Two miles out of Graham, he met a truck fitting the description he had received over the radio. He turned around and followed the truck to Pine Street where he stopped it. Defendant Dawson was driving; 'four subjects were in the truck'-- defendant, Vaughn, Coleman, and Buck. When Hargrove opened the door to the cab he saw a 30-caliber carbine in the floorboard on the right-hand side. On the dashboard were four pistols: a 25-caliber automatic, a 38-caliber pistol, a 22 revolver, and a 22-target pistol. Defendant Dawson said that the target pistol was his and that the carbine belonged to Buck. Coleman claimed the 38-caliber pistol. The men unloaded the weapons and turned them over to Hargrove at the time.

At 10:10 p.m., Sheriff Stockard went to Pine Street where the deputy had the truck stopped and then proceeded to the E & R Grocery where he talked to Farrington, his daughter, and Torrain. While there, he removed a projectile from the television. He then took Miss Farrington to Graham where she viewed the truck which Deputy Sheriff Hargrove had stopped on Pine Street. It was light green. She said that, in her opinion, it was the truck from which the shot had been fired into the store. A photograph of the truck was introduced in evidence as State's Exhibit 4, and both Miss Farrington and Torrain testified that it represented the truck with its rack of pipes or rails, which they described in their testimony.

After talking to Ernestine Farrington on the night of 24 November 1966, Sheriff Stockard warned defendant of his constitutional rights and asked him if he wished to make any statement. Defendant said that he did not, and he made none. The next day, the sheriff searched the truck and found in it two pressurized cans of paint. One was on the floorboard of the cab and the other in a toolbox in the rear of the truck.

About 9:30 p.m. on 24 November 1966, Nellie Mae Foust was at home in the trailer which she occupied with her three small children on Covington Road, a dead-end street off of Highway No. 54. That night she observed two cars and a truck, which was either blue and white or green, go by her trailer and stop in front of the Sarah Foust house next door. The next house beyond Mrs. Sarah Foust's belongs to Lawrence Williamson. Next to it is a trailer, and the last house at the end of the road belongs to Elmina Wood. None of the dwellings below Nellie Mae Foust's trailer was occupied on the night of 24 November 1966. When the two cars and truck stopped in front of Sarah Foust's house, the lights on the vehicles were turned off and, later on, she 'heard them shooting.' Three or four shots were fired at the Sarah Foust home.

When the vehicles came out, the truck pulled off to the right as it went by Nellie Mae Foust's trailer. It did not stop, but a shot was fired at the trailer. The next day, she found a hole in her refrigerator and called Sheriff Stockard. He came and discovered that a bullet had entered the trailer about two feet to the left of the front door and struck the refrigerator.

Sheriff Stockard also examined the Lawrence Williamson home, six to seven hundred yards down the road from the Foust trailer. He found that the letters KKK had been sprayed on the side of the house with white paint. The padlock on the back door had been pried off, and the letters KKK had also been sprayed on a picture hanging on the wall. A sample of the paint used was sent to the laboratory of the State Bureau of Investigation, but its report showed only that the paint used was similar to that found in the truck.

On the right-hand side of the door to the residence of Mrs. Sarah Foust, the sheriff found that the letters KKK had also been sprayed in white paint. To the left of the door, he found approximately five bullet holes. Sixty feet from the front of this house, he found three empty casings for a 30-caliber carbine and an empty casing for a 25-caliber pistol. These casings (State's Exhibit 3), he sent to the SBI in a sealed envelope. He also removed two projectiles from the rafters in the ceiling. John Boyd, a ballistics specialist in charge of the firearms section of the SBI Criminal Laboratory, test-fired bullets from the 30-caliber carbine and the 25-caliber pistol taken from the truck which defendant was driving on the night of 24 November 1966. He then compared the cartridges which he had fired with the casings contained in State's Exhibit 3. In his opinion, these casings had been fired from the carbine and the 25-caliber pistol found in defendant's truck.

The first count in the indictment in case No. 48 sufficiently charges the misdemeanor of nonfelonious breaking and entering the dwelling house of Lawrence Williamson, which contained personal property (a violation of G.S. § 14--54). 2 Strong, N.C. Index 2d, Burglary and Unlawful Breakings § 2 (1967). The second count likewise adequately charges a violation of G.S. § 14--144, that is, that defendant et al. did unlawfully and wilfully deface the home of Lawrence Williamson by painting the letters KKK thereon. We are constrained to hold, however, that the evidence is not sufficient to establish the violations alleged. It was sufficient to show that the padlock on the back door of the Williamson house had been broken and the house entered, and that somebody had sprayed paint both on the inside and outside of the house. It does not, however, disclose when these acts were committed or by whom. The finger of suspicion points to defendant and his three associates on the night of 24 November 1966, but the evidence does not satisfy the test for circumstantial evidence which was laid down in State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. See also State v. Bogan, 266 N.C. 99, 145 S.E.2d 374. The motion of nonsuit in case No. 48 should have been allowed.

Bill No. 49 also charges a violation of G.S. § 14--144. It specifically alleges the ownership and location of the house alleged to have been unlawfully and wilfully damaged (1) by firing bullets into the windows and walls and (2) by painting the letters KKK on the dwelling house. The indictment clearly alleges all the constitutent elements of the crime of unlawfully and wilfully injuring a house. It is, therefore, sufficient. 2 Strong, N.C. Index, Indictment and Warrant § 9 (1959).

The evidence pertaining to case No. 49, when considered in the light most favorable to the State--as we are required to consider it in dealing with the motion for nonsuit--is sufficient to establish the following facts: The three empty casings from a 30-caliber carbine and the one from a 25-caliber pistol, which were found 60 feet from the Sarah Foust home, were fired from the carbine and pistol which law-enforcement officers took from defendant's truck about 10:00 p.m. on 24 November 1966. This truck was light green. The truck which Nellie Mae Foust saw go by her trailer on a dead-end road, and from which shots were fired at the Sarah Foust house, was either light green or blue and white. Shots were also fired at the Nellie Mae Foust trailer from this truck as it went out.

There is no evidence as to which one of the occupants of the truck fired the shots but when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. It is a permissible inference that...