Appeal
from Superior Court, Hoke County; N. A. Townsend, Special
Judge.
Hector
Graham was convicted of first degree murder, and he appeals.
No error.
Refusal
to withdraw question of first degree murder from jury held
proper where there was evidence of premeditation and
deliberation.
Criminal
action tried before N. A. Townsend, special judge, and a jury
at August term, 1927, of Hoke. The prisoner was indicted for
the murder of Paul W. Johnson and was convicted of murder in
the first degree. From sentence of death he appealed
assigning exceptions, which appear in the opinion.
The
deceased lived in Raeford and had a farm in the county 6 or 7
miles distant. The homicide occurred at the farm about 2 p
m., August 12, 1927. F. P. Johnson, brother of the deceased
had a grist mill which was not very far from the
prisoner's house. Early in the morning on the day of the
homicide the prisoner saw the deceased at the mill and went
from the mill to Curtis's, thence to Gillis's in
Cumberland, then back to Curtis's to get his wife who had
been there since Thursday. Meantime the deceased had returned
to his farm. The prisoner and his wife on their return from
the Curtis place were traveling in a two-seated open car. In
going home they went by the farm where the deceased and Sam
Stewart were doing some work about the barn. There the roads
crossed, and the prisoner turned from the Puppy Creek road
into the Mail road, stopped his car, and called to the
deceased. As to subsequent events there is sharp conflict in
the evidence. Henry Ray, who lived 100 yards away, testified
for the state:
"About
2 o'clock I was in the porch, and I saw the car drive
up there and turn off right there and stop. I looked down
the road, and I saw Mr. Paul Johnson come up to the car. He
came up there, and he put his foot up on the running board,
and he talked to who was in there, but, mind you, I
didn't know it was Hector Graham. He talked a few
minutes, about as long as I have been sitting here, I
guess, and he took his foot off the running board, and he
sort of turned away-he was this way [illustrating]-and he
turned away, and I think they were done talking, and by
this time the shooting took place, and Mr. Johnson turned,
stumbled over that way, and he went over that way, and the
car pulled out, and he went back there a few steps and he
fell. I know he just fell, about the length of himself he
fell, I think that. I heard two shots. When the shots were
fired, Mr. Johnson wasn't anywhere from the automobile.
He had just passed the hind end of the car, going that way.
The car going that way, and he hadn't turned far enough
from the car to be any ways from it. He hadn't been far
from it, he hadn't been nowhere from it. He hadn't
went nowhere from it, he didn't have time to go nowhere
from it. Mr. Johnson went back that way as far as he did
go. I don't know how he got down there, whether he just
fell that far, or whether he walked a little bit before he
did fall. After a short while, I went up there to see where
he was. He had disappeared out of my sight, and I went up
there to see what, if I could discover where he was, and I
seen him prostrated in the road there. He was just lying
there, and I couldn't tell what condition he was in
because I didn't have any reason to trouble unless some
one with authority, like the doctor, to put hands to him or
nothing at all. I discovered though that he was dead. There
wasn't any fussing or loud talking or anything like
that. There was not any fight of any kind. This was an open
car. Had a top on it, but I don't recall whether it was
a one or two seated car. Just whenever the pistol shot then
the automobile pulled out. The engine of that car stopped
running when he stopped there."
Alice
Campbell, a witness for the state, said:
"I
live on Raeford road on the right side, going from Raeford,
left side coming from Fayetteville. That is what is known
as Raeford Puppy Creek road. House is just a short distance
from road. I was home on August 12, 1927; was there about 2
o'clock. I saw Hector Graham and his wife pass there in
an automobile. Hector was sitting on side of car next to my
house. His wife on other side. Hector was driving. I was
sitting on front piazza, just below my door; i. e., on side
next to Raeford. I saw Mr. Johnson. He was at the lot. I
knew he was in the lot, but I did not know at what point. I
saw him when he was called out from the lot. Hector called
him. He had just stopped. Car turned a little into the
other road, but stopped. The engine of car was somewhere
about the stump. I could not see driver of car when it
stopped. I could see the other person in front sitting. The
other person was Hector's wife. I could hear the engine
of car to the house. If the engine of car stopped, I did
not pay any attention to it. Hector called Mr. Johnson. I
heard the Paul part, I don't know whether he Mr.'d
him or not. Mr. Johnson went to car when Hector called. Mr.
Johnson had his hands in his pockets. He went up to Mail
road to car. When he went up to car he put his foot on
running board. I could see his shoulders; could not see any
part of him except his shoulders. I did not see anything
happen. The next thing I heard happen, I heard pistol fire,
and right after the pistol fired there was a little racket
made, a noise like a child, and then another pistol fired,
it was just all done right at once, almost. Pistol was
fired at car. I could see Hector's wife all the time. I
could not see her move. I could have seen her if she would
have moved. I don't know whether Hector's wife shot
pistol or not, but I did not see her move. Mr. Johnson
came running, staggering back around the car, and fell. Mr.
Johnson wasn't at car any time before shot was fired,
just a few minutes. I never could estimate time. There was
nothing between car and my house to obstruct the view. Car
drove off immediately after pistol fired, car was going
when Mr. Johnson fell. I never heard any fussing at car. I
never saw any fight. I never saw Mr. Johnson move from the
position he was in at car until pistol fired. He was there,
looking right at the car and them."
The
prisoner testified, in part, as follows:
"I
knew Mr. Paul Johnson all his life. I know all of the
family. I worked with his father. I had known Mr. Paul 27
or 28 years. Mr. Paul Johnson and me, nor any of his
family, ever had any trouble. I never had any ill feeling
towards him or any of his family. I saw Mr. Paul Johnson on
the 12th of August. I first saw him on that day at Mr. Fred
Johnson's mill, early that morning. *** I left Mr.
Curtis's to go home, and going from Mr. Curtis's to
my home I must travel the Puppy Creek road to the crossing
of the Mail road at Mr. Johnson's place, turn in at the
Mail road to go to my house. I did not know that Mr. Paul
Johnson was at the farm until I got there. I did not expect
to see him at all. When I saw Mr. Paul at the barn, I
stopped to see if I could get some work from him and see if
he wanted some corn. I had sold Mr. Fred 16 to 17 bushels
of corn, and I wanted to sell some more corn. When I saw
Mr. Paul at the barn, I stopped and called, 'Hey, Mr.
Paul,' and he came to the car immediately. He walked up
on the left side of the car where I was sitting. My wife
had a bag in the car, and when he came up to the car he
asked, 'What is in that bag?' My wife replied,
'I have been off working.' I had a walking stick in
the car between the back of front seat and coat rack. Mr.
Paul grabbed the stick and said, 'I will learn you how
to call me Paul. ***' Mr. Paul took the stick and began
hitting me. He struck me side of the face and on the back
of the head, and I grabbed the pistol and shot him. The
reason I had the stick, I had hurt my foot and had been
using the stick for a walking stick. [Stick produced in
court and identified as the stick Mr. Johnson had hit him
with. Stick seasoned dogwood, about the usual size of a
walking stick.] It was not broken before Mr. Paul struck me
with it. He struck me right there, on that bone [indicating
cheek bone], and made that big scar, and he hit my head up
there and up there [indicating about the head]. I shot him
while he was beating me. I wouldn't have done it for
nothing. I was just knocked addled.
"Q.
Why did you shoot Mr. Johnson? A. I don't know. I just
naturally was addled. He knocked me and assaulted me with
the stick, and I hardly knew what I was doing, and then
whenever he hit me he knocked every bit of the water in me
out.
"Q.
Did you stop there for the purpose of having any fight or
altercation with Mr. Johnson? A. Not a bit in the world. I
never did have no difficulty, I liked them all. I never did
have no trouble with none of them at all. That is the
truth. I always liked them all. I worked with them all.
When I left there, I went home. It's a wonder I did not
tear up the car going home. I didn't know what I was
doing, I was hurting so bad. I did not stay at home no
longer than to open the door and get out. I went to
Fayetteville on Monday morning and surrendered to Sheriff
McGeachy. I tried to make my way there before, but could
not get there. A colored man by the name of Bell, who lives
about 9 miles from Fayetteville, carried me to
Fayetteville. I went to his house and asked him to carry me
to Raleigh or Fayetteville so I could surrender, and he
carried me to Fayetteville. When I surrendered to Sheriff
McGeachy, my face and eye were swollen, and the sore and
bruises were on my face, where Mr. Johnson struck me. The
skin was broken. [Witness at this time shows scar across
his cheek bone to the jury. Scar about 2 1/2 inches long,
straight across the cheek bone.]"
Laura
Graham, the prisoner's wife,...