State v. Fulcher

• Decision Date: 18 October 1922
• Docket Number: 161.
• Citation: 113 S.E. 769,184 N.C. 663
• Parties: STATE v. FULCHER.
• Court: North Carolina Supreme Court

113 S.E. 769

184 N.C. 663

STATE v. FULCHER.

No. 161.

Supreme Court of North Carolina

October 18, 1922

Appeal from Superior Court, Carteret County; Cranmer, Judge.

Lee Fulcher was convicted of assault, and he appeals. Reversed.

Criminal prosecution charging the defendant with an assault on one Malissa Sharp. From an adverse verdict and judgment of six months on the roads, the defendant appealed.

Walker and Adams, JJ., dissenting.

Chas L. Abernethy, of Newbern, and Julius F. Duncan, of Beaufort for appellant.

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

STACY J.

Malissa Sharp and her husband, Ed. Sharp, were tenants of the defendant, living on his farm; and, in the same house, the defendant's mother occupied a room on the second floor. It was the habit of the defendant's boy, a child about four years old, to visit his grandmother, and the boy soon became a source of annoyance to Malissa.

On October 19, 1921, the defendant went over to get his horse and buggy which he kept in his mother's lot; his boy came down to the barn and the defendant put the child in the buggy while he was taking off the wheels to grease them. Fulcher called to his mother and asked her to bring him his oil can which she did. About this time Malissa Sharp came down to the barn where the defendant, his mother, and child were. She told the defendant that his boy "had been messing with her," and if he didn't keep him away from there she was going to whip the little "slick-headed" urchin. Whereupon the defendant replied, "Now, Malissa, there's no use talking that way; I dare you to put your hands on him." Malissa said, "I don't take a dare," and further, according to her own evidence:

"I had the tobacco stick in my right hand, and Fulcher grabbed hold of my two wrists; I jerked away from him, went in the house and got my gun; when I came out of the house Fulcher was running down the road, away from the house."

The defendant's version of the matter was as follows:

"Malissa Sharp came down to the lot and said, 'Lee, what are you going to do with that slick-headed boy of yours? If you don't keep him away from here, I'm going to beat him.' I said, 'Now, Malissa, there's no use talking that way; I dare you to put your hands on him.' She said, 'I don't take a dare from nobody,' and grabbing up a tobacco stick, she made towards the boy, and I grabbed her hands and wrung the stick out of them; then she turned around and ran to the house, saying she was going to get her gun; then I got out of there and ran down the road."

The defendant met Ed. Sharp some distance away and told him to go and take care of his wife. This was all that happened. No harm was done. Malissa herself testified:

"Didn't hurt me; made marks of his hands on my wrists when he took hold of me. These marks were bruises."

The state offered other evidence tending to show that her wrists were "not bruised or cut," but only stained with grease.

From the foregoing, it will be noted Malissa Sharp does not say in so many words, that she started towards the boy with the stick in her hand, while the defendant says that she did. This is the single point of difference in their testimony, if, indeed, it be material on the present record. There is no denial of the fact itself, and we think that such is but the natural interpretation and construction to be placed on the testimony of the prosecutrix. No other conclusion seems to be permissible from all the evidence, and the second motion for judgment as of nonsuit is to be considered in the light of the whole case. The record is free from any conflict of evidence on this point, and, in considering the motion at the close of the entire...