State v. Gardner

• Decision Date: 17 March 1948
• Docket Number: 77.
• Citation: 46 S.E.2d 824,228 N.C. 567
• Parties: STATE v. GARDNER.
• Court: North Carolina Supreme Court

46 S.E.2d 824

228 N.C. 567

STATE v. GARDNER.

No. 77.

Supreme Court of North Carolina

March 17, 1948

Criminal prosecution upon indictment charging that defendant 'late to Buncombe County * * * with force and arms, at and in said county, unlawfully, willfully and feloniously, of her deliberate and premeditated malice aforethought, did kill and murder one Nathaniel Barnard contrary to the form of the statute', etc.

The solicitor announced in open court, upon the call of the case for trial, that the State elected not to try defendant on the charge of murder in the first degree, but for murder in the second degree or manslaughter as the evidence and the law might justify.

Defendant pleaded not guilty, and defended upon the ground of self-defense.

On the trial in Superior Court the State offered evidence tending to show these facts: That Nathaniel Barnard, called Nate Barnard, who was tall and weighed about 230 pounds, came to his death on the night of 25 October, 1947, as result of stab wound in his neck inflicted by a knife in the hands of defendant, Annie Laurie Gardner, at the home of James Roberts, her brother-in-law, at Dula Springs in Buncombe County, North Carolina; that the Roberts home is a one-room house and in it were a table, a stove, three beds and three chairs; that defendant and her sister and Nate Barnard came to the Roberts home about eight o'clock in the evening that defendant and Nate, who had been 'going together' about two years, were 'arguing' when they got there; that Nate sat down on the bed and they 'got to arguing and talking and got into a fight there'; that defendant hollered out 'He hit me' that James Roberts then took Nate 'out of doors', but he later came back in the house; that defendant didn't say anything to him, but she was 'just a-crying' then; that Nate was sitting on the bed, and defendant was behind her sister and 'kept sidling around', and Nate said something and got up, and she said, 'I am getting tired of your foolishness; you have run over me about long enough', and she made 'a run' and hit Nate, and blood spurted from his neck, and he staggered toward the door and went down the hill and fell about 75 feet from the house and died there; and that blood was 'all in the house'.

The State offered other evidence in ampliation of the above narrative of events leading up to and culminating in the homicide. It is unnecessary for purpose of this appeal to give more detailed recital. Such of the evidence as is pertinent to presentation of assignments of error follows:

The record shows that for the purpose of illustrating testimony of certain witnesses, and over objections and exceptions duly made and taken by defendant, the State offered three photographs, to wit: (1) Exhibit S-1, identified by the State's witness James Roberts as fairly representing the house and the condition of it after deceased 'had got up and gone out', and also identified by deputy sheriff Burleson, witness for the State, as fairly representing the condition of the house when he arrived there that night,--after the homicide occurred. The witness Roberts introduced by the State had testified without objection of defendant that he saw blood spurting from the neck of Nate, and that 'there was blood all in the house'. And the deputy sheriff had testified, over objection of defendant, that when he went there, 'the house was as bloody a place as you could see. You had to walk in the blood.' And later in the course of the trial Dr. P. R. Terry, also witness for the State, testified without objection by defendant, that when he went into the house that night: 'I found the floor of the house covered with blood, blood on the walls and blood on the door coming out of the house, and going down to where the body was lying--tracks of blood all the way down there.' There is no evidence as to who took the photograph.

(2) Exhibit S-2, identified by deputy sheriff Burleson, State's witness, as fairly representing the circumstances under which he found the deceased when he reached the scene, except that deceased was lying on his face,--the picture being made after the body had been turned over on his back, and also identified by Dr. Terry as fairly representing the body and its surroundings as he found it when he arrived there. The deputy sheriff had testified that on the night of the homicide he had found deceased lying on his face, that the body was turned over--he believed by the coroner, and that this was about 75 feet from the Roberts' house. And Dr. Terry then testified that when he got there he found 'a negro man lying on his back by the side of the path * * * 75 to 100 feet below the house'; that the had a wound in his right neck; and that 'he was dead when I arrived there'. There is no evidence as to who took the photograph.

(3) Exhibit S-4, identified by Dr. Terry, State's witness, as fairly representing the body of the deceased and the wound he had described. The doctor had testified that in his opinion Nathaniel Barnard died from hemorrhage from the wound in the neck. Quoting him, 'I have a picture that shows how large a wound better than I can describe. It was in the right neck * * * a stabbing and cutting wound. What I mean, stab of the knife and she pulled it out and cut the wound and made it larger, just above the right clavicle * * * This knife wound went in and severed the subclavian vein or artery * * * and it punctured the inner lobe of the lung * * * went in there two or three inches * * * a wound like that with a terrible hemorrhage like that the man couldn't live over 4 or 5 minutes.' The State seems to concede that this photograph was taken in a morgue,--showing a wound in the right neck. There is no evidence as to who took it.

When the first of the photographs was offered by the State, the trial judge gave this instruction to the jury: 'You will not consider the photograph as substantive evidence,--it is not competent for that purpose. It is only competent, and the court limits the evidence in the way of a photograph of illustrating the testimony of the witness, and it is a question for you as to whether or not it does illustrate his testimony, and you will receive it and consider the photograph in no other way other than as tending to illustrate the testimony of the witness, and not as substantive evidence.' Defendant again excepts.

Like instructions were given when each of the other two photographs was offered by the State, and in each instance defendant excepted.

The record also shows that during the cross-examination of James Roberts, witness for the State, he had stated that defendant said, 'You have run over me long enough; I have took enough of your foolishness' and that then he 'saw her make a run and her hand go that way', the court interposed: 'What do you mean by 'make a run'? Give a step like that and hit him?' Defendant excepts. A. 'He got up, she took a step and hit him.' Motion to strike. Denied. Defendant excepts.

The record further shows that in the course of the direct examination of deputy sheriff Burleson, after he had related a conversation with defendant later in the night of the homicide, he testified: 'She said she would have cut his dammed head off if they had let her alone,--that she didn't care'. Then the solicitor asked the witness this question: 'Did she express any remorse for having cut him?', to which the witness answered 'Not any'.

Defendant's objection to the question, aptly made, was overruled, and her motion to strike the answer was denied. She excepted to each ruling.

And the record shows exception by defendant to the testimony of deputy sheriff Burleson that 'the house was just as bloody a place as you could see. You had to walk in the blood.'

Defendant, having reserved exception to denial of her motion, made when the State first rested, for judgment as of nonsuit on the charge of murder in the second degree, offered evidence tending to show that she is of good character, and she, as witness in her own behalf, gave her version of events lading up to and culminating in the stabbing of Nate Barnard, and tending to support her plea of self-defense.

The State offered testimony in rebuttal.

At the close of all the evidence defendant renewed her motion for judgment as of nonsuit on the charge of murder in the second degree, and excepted to the denial of it.

Verdict: 'Guilty of manslaughter.

Judgment: Confinement in the Central State Prison at Raleigh, North Carolina, for a term of not less than seven nor more than twelve years.

Defendant appeals therefrom to Supreme Court and assigns error.

Harry M. McMullan, Atty. Gen. and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

George Pennell, of Asheville, for defendant-appellant....