State v. Graham

• Decision Date: 06 October 1903
• Citation: 45 S.E. 514,133 N.C. 645
• Parties: STATE v. GRAHAM et al.
• Court: North Carolina Supreme Court

45 S.E. 514

133 N.C. 645

STATE v. GRAHAM et al.

Supreme Court of North Carolina

October 6, 1903

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

Henry Graham and another were convicted of crime, and appeal. Reversed.

Where in a prosecution for highway robbery, there was no testimony on which to base the theory that defendants concealed themselves near the public highway waiting for the prosecutor, an instruction in the form of a question "Were they (defendants) concealed in the bushes * * * near the public highway watching the approach of" the prosecutor? etc., was prejudicial error.

The defendants, together with one O. H. Harrison, who was at the time of the trial dead, were indicted for highway robbery from the person of one L. K. Nicholson, who testified: That on the 5th of November, 1902, he came to Kinston with a load of tobacco. That, after making some purchases and buying some whisky, he started home. That he took the wrong road, and was turned back. That his horse's feet got entangled in a tramway near the Becton place. Some one stopped the horse. It was too dark for witness to tell who they were, except by the color of their hair. That a gingercake colored negro came around the wagon, and placed a gun in witness' face, and another one came around on the other side, and pulled his gun on witness. Then the third one came up with a gun. It was a clear open place. Witness did not see where they came from. They had two double-barrel guns and a single barrel shotgun. They demanded his money. Witness told them that he had none. One of them said witness was a liar; that he saw witness go along that morning to Kinston with tobacco. That he had some money in his pocket, pulled it out, and gave it to them. They then walked off. One of them said, "Let's kill him." Another one said that would be too bad. That they asked witness if he had any whisky. They reached in the wagon, and got out a small jug of whisky. That witness went about two miles, and stopped at a schoolhouse, where they were having prayer meeting. Told persons there that he had been robbed by three negroes, but could not tell who they were. Witness then went on some three or four miles from the place of the robbery to John Dail's house, and told him about it. Stayed all night at Dail's house. That he left for home early in the morning. That some persons came after him, and told him to come back; that they thought they had found out who robbed him. They went back down in the neighborhood of the robbery. Witness swore out a warrant against the defendants. That he saw Robert Faucett after he was arrested, but could not identify him as one of the men. Witness then saw Henry Graham, but could not identify him as one of the men. That he "sorter thought that Harrison had a voice like one of the men that robbed him." That he did not make any outcry about being robbed. That he did not tell George Holland that he had been to Kinston and gotten drunk and played hell, or that his wife and children needed every cent that he had worked for. Witness said that he did not know whether Graham was one of the parties or not that he could not identify either him or Richard Faucett as one of the negroes that robbed him. That he did not make any effort to find out who robbed him. That he was on his way home when overtaken the next morning and told to come back. That he lived in Duplin county, and farmed on the land of L M. Cooper. That he did not tell Cooper that he was robbed. That he bought a quart of wine from John Dail on his way to Kinston the morning that he was robbed, and bought two jugs of whisky in Kinston. That he had the pocketbook that he had in his pocket on the night of the robbery. There was other testimony to the effect that O. H. Harrison and the two defendants were in a buggy drawn by a mule going in the direction of Neuse river low grounds about 10 o'clock in the morning; that they had guns in the buggy, and said they were going hunting; that they had bought a quart of wine that morning. It was also in evidence that they were seen about sunset with two single-barrel guns and a double-barrel gun about a mile and a half from the scene of the alleged robbery. They said that they had been out hunting. Two witnesses by the name of Jarman testified that early in the morning after the alleged robbery of Nicholson they went in pursuit of him, and overtook him a few miles from Dail's house, on his way to his home in Duplin county; that they informed him that three colored men with guns were seen on the public road the previous evening, and they prevailed upon him to return and get out a warrant for those men. It was in evidence on the part of the defendants that the prosecutor came to the house of George Holland about 7 o'clock on the night of the alleged robbery; that he hailed at the gate that he said he had been to Kinston with tobacco; that he had gotten drunk and played hell; that his wife and children needed all the money he had worked for; that he asked Holland to take a drink with him; that he did not appear excited at all, and did not say anything about being robbed; that Holland's house was about a mile and a quarter from the place of the alleged robbery. This conversation was immediately after the time of the said robbery. There are several houses on the road before Nicholson got to Holland's house, and they are all occupied by families, and the houses are near the road--in speaking distance of the road. It was also in evidence by the witness Davis that the prosecutor stated that he had a conversation with Holland, but he did not tell him anything about the robbery; that he said he could not identify the negroes except by the color of their hair; that they had two double-barrel breech-loading guns and one single-barrel shotgun; that a ginger-colored negro put his gun in his (prosecutor's) face and demanded his money, and he told him he had no money; the negro told him he was a liar; that the day after the arrest of the defendants the prosecutor was carried before defendant Faucette, and asked if Faucette was one of the negroes that robbed him, and he said "No"; that he looked at Harrison, and said he did not think he was one; that he was then carried in the presence of the defendant Graham, and asked if he was one of the negroes that robbed him, and he said he was not; that the place of the alleged robbery was a clear, open place, and in full view of Allbritton's house, 300 yards from the place; that there were four houses between where the alleged robbery was committed and the schoolhouse where they were holding prayer meeting, and these were all in speaking distance of the public road. The defendant Graham said that Faucette and himself went squirrel hunting in the morning. They went to the river low ground, and passed Harrison's house, and he went with them. He testified in regard to his movements of the day of the alleged robbery; that he did not know the prosecutor, and never saw him until after he was arrested; that he did not meet him on the road, and knew nothing of his being robbed. Faucette testified to the same effect. It was also in evidence...