State v. Graham, (No. 274.)

Citation140 S.E. 26
Decision Date02 November 1927
Docket Number(No. 274.)
PartiesSTATE. v. GRAHAM.
CourtUnited States State Supreme Court of North Carolina

140 S.E. 26
(194 N. C. 459)

STATE.
v.
GRAHAM.

(No. 274.)

Supreme Court of North Carolina.

Nov. 2, 1927.


[140 S.E. 27]

Appeal from Superior Court, Hoke County; N. A. Townsend, Special Judge.

Hector Graham was convicted of first degree murder, and he appeals. No error.

Criminal action tried before N. A. Town-send, 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. John son 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. John-

[140 S.E. 28]

son 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. 1 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...

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