State v. Donnell

• Decision Date: 15 June 1932
• Docket Number: No. 393.,393.
• Citation: 164 S.E. 352,202 N.C. 782
• Court: North Carolina Supreme Court
• Parties: STATE . v. DONNELL et al.

164 S.E. 352

202 N.C. 782

STATE .

v.DONNELL et al.

No. 393.

Supreme Court of North Carolina.

June 15, 1932.

Appeal from Superior Sourt, Guilford County; Shaw, Emergency Judge.

Nord Donnell and Leroy Lee were jointly indicted for murder, Leroy Lee was convicted, and he appeals.

No error.

Criminal prosecution tried upon a joint bill of indictment charging Nord Donnell and Leroy Lee with the murder of one R. B. Andrews.

From an adverse verdict, and sentence of death entered thereon, the prisoner Leroy Lee appeals, assigning errors.

Hines & Boren and George H. Mitchell, all of Greensboro, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY, C. J.

The record recites there was evidence tending to show that during the evening of November 25, 1931, Nord Donnell and Leroy Lee, riding in the latter's car, went to the store of R. B. Andrews, a merchant at Sedalia, Guilford county, and one or the other shot and killed the said Andrews.It is admitted that both Donnell and Lee were present at the time of the homicide, and each testified the other did the shooting.Donnell said the murder was the result of a holdup scheme.He confessed his part in the crime, and has not appealed.State v. Whitehurst, 202 N. C. 631, 163 S. E. 6S3.Lee testified there was no conspiracy or intention on his part to rob the deceased, and that Donnell alone was responsible for the killing.They both left immediately after the shooting, in Lee's car, and were arrested a day or two later.As we understand the record, though its preparation is somewhat unsatisfactory, a robbery wasbeing perpetrated or attempted at the time of the shooting.

The prisoner's first exception is to the refusal of the court to grant his motion for a severance or separate trial.It was the rule at common law, which still obtains with us, that, when two or more persons are indicted jointly, a motion for severance may be made on the face of the bill(State v. Deaton, 92 N. C. 788), but the granting or refusing of the motion is a matter which rests in the sound discretion of the trial court(State v. Souther-land, 178 N. C. 676, 100 S. E. 187;State v. Holder, 153 N. C. 606, 69 S. E. 66;State v. Carrawan, 142 N. C. 575, 54 S. E. 1002;State v. Barrett, 142 N. C. 565, 54 S. E. 856;State v. Smith, 24 N. C. 402).No abuse of discretion appears on the present record.The defendants were partners in crime, and they have been tried together as his honor thought was but meet.Note, 70 A. L. R. 1171;16 C. J. 786.The exception is not sustained.

The following excerpt from the charge forms the basis of the prisoner's next exception or second assignment of error: "Now there is no conspiracy expressly set out in the bill, and it is not necessary that it should have been alleged in the bill, but if the State has satisfied you beyond a reasonable doubt from the evidence that the two defendants Donnell and Lee, prior to the time of the alleged killing of R. B. Andrew, entered into a conspiracy to rob him, and pursuant to that conspiracy so entered into, and while in an attempt to carry out the unlawful purpose, to-wit, the robbery of Mr. Andrew, one of them shot and killed him, the Court instructs you, gentlemen of the jury, that both defendants would under those circumstances be guilty of murder in the first degree."

This instruction is free from reversible error.State v. Holder, supra.Without regard to the existence or absence of a conspiracy, it is a settled principle of law, apparently applicable to the facts of the instant case, that, where two persons aid and abet, each other in the commission of a crime, both being present, both are principals and equally guilty.State v. Beal, 199 N. C. 278, 154 S. E. 604;State v. Hart, 186 N. C. 582, 120 S. E. 345;State v. Jarrell, 141 N. C. 722, 53 S. E. 127, 8 Ann. Cas. 438.

The third exception, and the one on which the defendant, places his greatest reliance, is the failure of the court to submit to the jury the issue of murder in the second degree, under the principle that every view of the case, arising on the evidence, must be submitted to the jury.State v. Newsome, 195 N. C. 552, 143 S. E. 187.That while it is conceded an unlawful killing with a deadly weapon raises a presumption of malice, sufficient to warrant a verdict of murder in the second degree, nothing else appearing,...