State v. Exum

• Decision Date: 21 March 1905
• Citation: 50 S.E. 283,138 N.C. 599
• Parties: STATE v. EXUM.
• Court: North Carolina Supreme Court

50 S.E. 283

138 N.C. 599

STATE v. EXUM.

Supreme Court of North Carolina

March 21, 1905

Appeal from Superior Court, Lenoir County; Moore, Judge.

William Exum was convicted of murder, and appeals. Affirmed.

The homicide occurred in the presence of W. and defendant's wife. The next morning W. made an affidavit of the facts before a justice of the peace, and in the presence of defendant's wife. The justice testified that he read the affidavit to W. and defendant's wife, and they both said the statement was correct. Held, that the affidavit was admissible to corroborate W. and to contradict defendant's wife.

The prisoner was tried before Moore, J., and a jury, at September term, 1904, of the superior court of Lenoir county, for the murder of Guy Walston. The evidence on the part of the state tends to show that the homicide occurred on Saturday September 3, 1904, at the house of Runie Walston, in Lenoir county. Mrs. Exum (formerly Mrs. Walston), the mother of the deceased and Runie, and wife of the prisoner, was on a visit with her husband at the home of her son, Runie, whose wife was confined in bed by fever. They arrived on Tuesday before the homicide occurred on Saturday next. Guy, the deceased who had been working in Greene county, about 20 miles away came on Saturday. The following named persons witnessed the shooting: Mrs. Mary A. Walston, wife of Runie, Mrs. Exum wife of the prisoner, and Miss Zenobia Jones. After the dinner the prisoner went into the room of Mrs. Walston. Miss Jones was there when the prisoner entered. Guy came in, and sat down by the bedside of Mrs. Walston, near an open window with his head on a pillow and his feet on a sewing machine, and was fanning Mrs. Walston. The prisoner retired when Guy came in, going to an adjoining room. Mrs. Exum came in, and sat down at the foot of the bed, and she and Guy commenced talking. She was telling him about Exum going down the country next week to look for a place to live another year, and Guy asked his mother if she was going with Exum, and she said "Yes, I reckon I will." Guy then made use of an opprobrious epithet about Exum. Exum then pushed the ell door open, and came into the room, and asked Guy whom he was talking about, and Guy laughed, and said, "You." Exum then reached up on the bookcase and got his pistol, and came towards him with pistol pointed at him. When he got to the east corner of the fireplace, Mrs. Exum pushed him back in the corner next to the bureau, and tried to take the pistol away from him. Guy then jumped up and ran for the door. Just as he passed, and was midway of the fireplace, Exum whirled, and shot him in the left shoulder. Guy turned, fell forward, and put his arms around his mother's waist, and swung around on the hearth. As he fell forward, Exum put his pistol to his head, and fired the second shot into his brain, causing his instant death. The physician stated that the first shot entered the left arm just below the shoulder, and from behind passed through the blade, broke the third rib, and embedded itself in the spinal column, third dorsal, fracturing the third dorsal vertebra; that the effect would cause paralysis from the fracture down; and the person who fired did so from behind, not directly, but at an angle.

The prisoner offered evidence to show that he and his wife had gone to the house of Runie Walston from their home in Greene county, having been sent for, that his wife might assist in nursing Mrs. Runie Walston, who was sick in bed from fever. He testified that he was in the room where Mrs. Walston was in bed, and Guy came in, and witness withdrew into an adjoining room. Mrs. Exum and Guy (the deceased) commenced talking, and in their conversation Guy made use of an offensive remark about witness. When he re-entered the room, and asked him whom he was talking about, he said, "'You, Will,' and I said, 'Guy, I wish you would please quit talking about me and calling me names as you just now called me,' and he said, 'I will quit when I get ready, and fix you besides." D' He then threw his hand to his hip pocket--his left hand was on the window sill in front of which he was lying--and raised up. At this juncture Miss Jones went out. "I reached then, and took my pistol off the bookcase. Guy had advanced some then, and I said, 'Stop, Guy, stop; don't come on me;' and he said, 'I will stop when I fix you.' My wife was running towards me then, and she said, 'Don't shoot in here; it will scare Alice.' I said, 'Well, he is going to kill me.' Then I presented my pistol to shoot him in the right arm, and just as I presented my pistol to fire, he turned his left side to me, and I fired. My wife jumped between us. Guy threw his left hand on her left shoulder, and was looking over her right shoulder into my face. Then I felt something striking me in my left side (about here), and I threw my pistol over her head. She said, 'Don't shoot any more,' and I said. 'He will kill me,' and I fired." The prisoner was convicted of murder in the first degree, and from the sentence pronounced on the verdict appealed.

N. J. Rouse, Loftin & Varser, and Aycock & Daniels, for appellant.

The Attorney General, for the State.

HOKE, J. (after stating the case).

We have given this record and the exceptions noted in the case on appeal the close scrutiny and careful consideration which the supreme importance of the issue demands, and can find no error to the prejudice of the prisoner or his cause. The first 12 exceptions, and exceptions 16 and 17, are to the admission of evidence showing previous threats on the part of the prisoner against the deceased. These threats were in July previous, and some as far back as January or February, 1904. They tend to show deep-seated animosity against the deceased, some of them amounting to direct threats to take his life, and are undoubtedly competent. State v. Hunt, 128 N.C. 584, 587, 38 S.E. 473; State v. Moore, 104 N.C. 743, 10 S.E. 183.

We suppose the real objection insisted on here is to the threat testified to by Runie Walston in the following language: "He [the prisoner] said that not only Cousin Sam, but Guy, had told on him things that were wrong, and that a man by the name of John Shackelford liked to have got him into trouble, and, if the report about Cousin Sam be true, he was going to kill him, and while he was up there he was going to get the other two." It would not be competent, as a separate proposition, to show threats against other persons than the deceased; but this statement as to the others is so involved in the threat against the deceased that it was necessary to give the entire statement to make the jury properly apprehend its significance as against the deceased. "He was going to get the other two," standing by itself, would be meaningless, and by giving the entire statement it became perfectly plain. His honor was careful to tell the jury that this conversation was only competent, and should only be considered as evidence, in so far as it related to Guy Walston, and any statement in reference to Shackelford and others was incompetent. Only that referring to the deceased is competent. So qualified and explained there was no error in permitting the statement to go to the jury. State v. Crane, 110 N.C. 530, 15 S.E. 231.

Exceptions 13, 14, and 15: In swearing the witnesses, Mrs. Walston and Miss Jones were not present, and when called they gave their evidence without having been sworn. The inadvertence was discovered, and they were then properly sworn, and restated their testimony to the jury. In this connection the judge told the jury "they must disregard each and every statement made by these witnesses before they were sworn, and must not consider anything which these witnesses had then said as evidence in the case." The judge pursued the only course proper, and perhaps permissible, under the circumstances, and the decisions are against the prisoner. A case very similar in our own court is State v. Morris, 84 N.C. 756. In that case, Ruffin, J., said: "We cannot see that the judge below could have proceeded, under the circumstances, otherwise than he did. If he had made a mistrial, it would have raised a serious question as to whether the prisoner, having once been in jeopardy, could again be put upon his trial. *** It is impossible for the law to foresee and provide for all the contingencies that may arise unexpectedly in the course of trial on the circuits, and something must be left to the discretion and sound judgment of the judge; and this court will not undertake to review the exercise of that discretion. It is true that, if it should appear that this discretion had been so exercised that the prisoner had been deprived of a fair trial, this court, as said by the late chief justice in the case of State v. Tilghman, 33 N.C. 513, would assert the right to grant a new trial. But we cannot perceive that this prisoner's rights were in any way impaired by the action of his honor in the premises. A similar decision has been made in Commonwealth v. Keck, 148 Pa. 639, 640, 24 A. 161."

Exceptions 18 to 22 are to statements pertinent to the inquiry made by the prisoner to Tom Albridge, the deputy sheriff, when that officer had him in custody, for the reason that he was at the time in custody. These exceptions are without merit, and have been frequently decided contrary to the prisoner's position. State v. Daniels, 134 N.C. 641, 46 S.E. 743; State v. De Graff, 113 N.C. 688, 18 S.E. 507; State v. Conly, 130 N.C. 683, 41 S.E. 534.

Exceptions 23, 24, and 25 are in response to questions asked by counsel for the prisoner of Mrs. Exum, wife of the prisoner, the first witness who testified for the defense. The questions are as follows: "At the time Guy and Exum lived with you, do you know whether...