State v. Gooch

• Decision Date: 28 February 1886
• Citation: 94 N.C. 987
• Court: North Carolina Supreme Court
• Parties: STATE v. WM. GOOCH AND JAMES A. SMITH.

94 N.C. 987

STATE

v.WM. GOOCH AND JAMES A. SMITH.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

INDICTMENT for murder, tried before Clark, Judge, and a jury, at September Criminal Term, 1885, of the Superior Court of WAKE county.

After the arraignment, the prisoners severally moved for a severance of the trial, upon the ground that the evidence to be offered by the State, which might be competent against the one, would not be against the other, and that the defence of the one, would be antagonistic to that of the other; and that each would insist that the other did the killing.

The motion was denied by the Court, and both the defendants excepted.

By consent, a special venire of two hundred men had been drawn from the jury box, under §1739 of The Code, in open Court, in the presence of the defendants and their counsel, and duly summoned to attend as jurors. The regular panel was duly perused, and one juror chosen therefrom.

Then the jurors of the special venire were called, and when the first special venireman, so drawn from the box, was passed by the State, he was challenged by the defendants, and on his voir dire, he was asked the following questions by the defendants: “Have you a suit pending and at issue in the Superior Court of Wake county?” Objection by the State, and the question was ruled out by the Court, his Honor holding the only qualification of a juror of the special venire was, that he should be a free-holder. Defendants excepted.

The same juror was then asked this question by the defendants: “Have you paid your taxes for the last preceding year?” Objected to by the State, question ruled out by the Court, and the defendants excepted.

Several other jurors, upon being tendered to the defendants, were asked the same questions on their voir dire, and each question on objection, was ruled out by the Court, and each ruling was excepted to by the defendants.

Neither of the defendants, when the jury was completed and empanneled, had availed himself of the twenty-three peremptory challenges; the defendant Gooch having challenged only thirteen jurors peremptorily, and the defendant Smith only six.

The deceased was one John A. Cheatham, and it was admitted that the homicide occurred on the 10th day of June, 1885, about half past eight o'clock, p. m., in a store building in the city of Raleigh, which he occupied, and in which he did business at that time.

The store house was proved to be about seventy-five or eighty feet long, and forty or forty-five feet from the door to the stove. The front part of the house was used for groceries, and the back part for the sale of spirits, and was separated by a screen. The defendants were employés of the city government at the time of the homicide, and had been for some time.

James Cheatham, a witness for the State, testified, that his brother, John A. Cheatham, was killed on the 10th of June, 1885; witness was his clerk; his brother was thirty-five years of age; and was killed at 8 1/2 o'clock at night. John Hawkins and his brother were at the counter, just below the stove, and witness was near the front door, sitting in a tall arm chair. Smith came in smoking, and passing him, met Hawkins going out, and went into where his brother John was, and asked for his account, and while he was showing him his account, Gooch came in, in his shirt sleeves, and walked down below Smith and John, and stopped. Smith, after examining the account, said it was not correct, that he had paid it two or three times. The deceased told him he could not say that; that he had got every thing on there; that he, Smith, did like he had come there for a row, any way, and he had better go out. Deceased moved over to the opposite counter, and Smith repeated his remark, and made at him for a fight. Deceased got out of a chair he was sitting in, and pushed Smith against the counter, near the stove. Witness ran down to part them, and pulled deceased off. Gooch rushed on deceased while he, the witness, was holding Smith. Deceased called out, “he is cutting me,” two or three times. He turned Smith loose, and made for Gooch to part them; and when he got to them, deceased was on the top of Gooch, who was flat of his back. Deceased had his hands on Gooch, with his head turned off; as he stooped to pull deceased off, he felt a cut. Smith cut him on the shoulder, and he turned round on Smith, and Smith cut him in the side. He shoved Smith over some barrels, and made for the bar counter. The deceased had Gooch down, just inside the screen. Witness went to the front door to call some one to telephone for a doctor. The last he saw of Gooch, was when he stooped down and pulled deceased off of him. In returning into the store, he met deceased going towards the door, with his arms up, as if he wanted to catch him, but he fell on some tubs and churns; he asked him if he was hurt bad, but he did not speak, and died in about ten minutes.

The witness also stated, that the deceased had his hands on Gooch, but was doing nothing else. He saw his hands plainly; saw no knife in his hands; saw Gooch's hand cutting up, about the heart of the deceased. The wounds were on the left side of the face, and two others on his breast, near his heart. The defendants were both working on the streets, and were generally paid by orders on the city. The deceased kept the accounts. Smith had overtraded $23.00, and Gooch had overtraded $32.00, and the deceased had stopped them from trading-- Gooch about the last of February, and Smith about the last of March. Gooch said there were some articles in his account which he did get, and he would not pay it. Gooch was an athletic man; the deceased was not as strong a man as Gooch, but about the same size. Smith was not as strong as deceased, and was not quite as strong and heavy as Gooch. Something might have passed between Smith and his brother, which he did not hear. He did not hurt Smith, and was merely holding him. He pulled Smith down on the floor, but did not know whether his head struck the floor or not. He might have been hurt; did not see anything in his hand; did not know whether Gooch had a knife or not.

Scott Brown, a witness for the State, testified, that he examined the wounds of the deceased; one was a little below the left nipple; the other on the right of the nipple; pushed a pencil three inches long into the wounds. The one to the right of the nipple went straight in; the other ranged at an angle of forty-five degrees down. The wound on the face was three inches long, extending from the cheek-bone to the jaw-bone, and a great deal of blood was on his clothes.

Robert Saunders, a witness for the State, testified, without objection, that in the summer of 1884, he heard Smith and Gooch talking, near the railroad crossing, and overheard Gooch say to Smith, that if John Cheatham “messed” with him, like he did with some of the rest, he would kill “the G--d d--ned long, string-necked scoundrel;” that he had not thought of this since. He was walking along slowly when he heard the remark, and he was fourteen years of age August 5th, 1885.

Laura Lambert testified, that while in the field at work, last June, (1885), one Medlin hallowed that Gooch had killed Cheatham, but that he did not mention Smith, and thereupon Robert Saunders stated the remark, as testified to by him, which he had heard made by Gooch to Smith.

Abe Crabtree testified, after objection, that he saw the defendants together, about sunset, in front of Monie's store, about thirty-five steps from Cheatham's store; Gooch had a knife, cutting at Smith, as if trying to cut him, and Smith was knocking at him with his fist; they seemed to be fooling. The knife was open, and the blade seemed to about one and a half inches long.

Turner Evans testified, that defendants came to his restaurant for supper; could not get it, and left together; that Gooch was sober, and Smith a “little drinky.” This was about one hour before the killing.

Wesley Hammil testified, that about a month or two before the homicide, he heard Gooch say that the account Cheatham had him charged with, was not right, and if Lambeth (city clerk) paid out any more of his money to Cheatham, he would know how much he was owing him. That he heard Smith say repeatedly, a night or two before the homicide, that Cheatham had not treated him right about his account. This evidence was objected to, and the objection overruled.

On cross-examination, this witness was asked, if there was not a good deal of grumbling among the city hands about the manner of the Cheathams in dealing with them. The Solicitor at first objected to this evidence, but withdrew his objection, and it was admitted. Witness said that he had heard some four or five of the hands complaining about their accounts with Cheatham.

L. P. Sorrell proved the wounds of the deceased, about as described by the witness Scott Brown.

Dr. P. E. Hines testified, that the wounds described would be mortal, and go directly into the heart. They would take a very few minutes to kill. He examined James Cheatham's wounds that night. One was on the left shoulder, penetrated to the hollow, and was a dangerous wound. It was a stab, and there was another wound on the left side.

John Walker, a blacksmith in Raleigh, testified that Gooch came to his shop between eleven and twelve o'clock, to have a horse shod; saw him at the grindstone, grinding, and then whetting something; thinks Gooch cut a string for a boy who came to the shop.

Ed. Jackson testified, that he saw the prisoner at Ellis' Store in Raleigh, just before the deceased was killed, about 8:30 o'clock, some 75 or 100 yards from Cheatham's store. He heard Gooch say to Smith, “Let us go where we are going,” but he did not say where he was going. Had heard of Smith's having a little fight, but never heard of Gooch having a fuss.

John H. Alston testified, that he knew Gooch and Smith, and saw them together the night of the killing. They first went to...