State v. Green

• Citation: 26 S.E. 112, 119 N.C. 899
• Case Date: December 15, 1896
• Court: United States State Supreme Court of North Carolina

26 S.E. 112
119 N.C. 899

STATE.
v.
GREEN.

Supreme Court of North Carolina.

Dec. 15, 1896.

[26 S.E. 112]

Indictment as Principal — Conviction as Accessory.

1. Under an indictment for an assault to murder charging defendant as principal, a conviction as accessory cannot be had.

2. St. 1891, c. 205, authorizing a conviction of a lesser degree of the same crime charged in the indictment, does not authorize a conviction as accessory under an indictment for an assault to murder, charging defendant as principal.

Appeal from superior court, Polk county; Bryan, Judge.

W. Green was convicted of a crime, and appeals. Reversed.

The indictment charged the defendant with making an assault upon one Barrett "with force and arms, " etc., "in the peace of the state then and there being, maliciously and feloniously made an assault in a secret manner with a deadly weapon, to wit, a gun, with intent to kill him, the said H. J. Barrett, then and there unlawfully, maliciously, and feloniously did beat and ill treat, against the form of the statute, " etc. The defendant was convicted, and the judgment of the court was that the defendant be imprisoned in the penitentiary for seven years.

Case: The state introduced H. J. Barrett, who testified that he had been living here three years on the first Monday in October, 1895, between Columbus and Tryon, at the stock-law gate. About 3:30 p. m. he was shot in his buggy. He had stopped. Shot struck him in the head, neck, and shoulders; 48 shot struck him. He saw flash of gun. Horse ran off with buggy, and he went to Mr. Cox. Firing came from the bushes on the south side of the road, about 75 yards distance. Did not know who shot him. On cross-examination he testified that the shot were No. 5. Knew the defendant. Had seen him three or four times. Had nothing against him, "or he against me, as far as I know. I am the United States commissioner; appointed in April, 1895."

John Sims, witness for the state, testified: "I know Green. Have been living in South Carolina and Polk county. I know Barrett. Green and I were going after whisky, about 3:50 p. m. I had stopped. I had a gun. I laid gun down. Was off about ten steps. Green said: 'Yonder comes Barrett, damn him. I'm going to shoot him.' I said, 'Don't do that.' At that time the gun fired. Green ran, and I went on the way. He went up the hill. Green said: 'Don't tell this. It will penitentiary us both.' Green hid the gun in some bushes on the top of the hill. I went to Brigman's. It was a double-barrel shotgun, No. 5 shot. I then went on home. He talked some about it that night. I saw him fire the gun. Have been acquainted with him about six years. Stredwick came to my house, and said Barrett was shot, and they accused me of doing it. I went in the woods, and went to sleep. At twelve o'clock somebody whistled. I woke up, and saw Stredwick, Green, and Boles. Green got the gun where he had hid it. I then went home with Green, and went to bed. He left the gun at hum Sims'." On cross-examination: "I understand I am indicted for this same shooting. I got the gun from Wilcox; both barrels loaded alike. Had been there five or ten minutes when Barrett came along. Had started to Brigman's for whisky. I ran away from South Carolina about revenue laws. Don't think I swore that we were sitting there drinking whisky. Have been indicted here for fighting. Green lived mile and a half from me, and a mile and a half from the place of shooting. I heard of a reward being offered for the person who shot Barrett. I am not to get any part of it. I said I was not guilty. I understood that a warrant was out for me for the shooting, and I went to South Carolina. I told Robertson about it, and who did it. This was before the magistrate's trial. I did not tell Stredwick that I did the shooting. I did not go to South Carolina for two weeks after the shooting."

David Foster, witness for state, testified: "I know Green. We had a little chat. He talked like he knew the man that shot him. He talked like he did it himself. We were all drunk." On cross-examination: "We were very drunk. I don't know what was said, but that was the inference that I drew, —that he (Green) shot him." The state rests.

Defendant introduced himself as a witness, and testified: "Sims and I were coming from Tryon. We parted between Tryon and Lynn Hotel. He said he was going home to get his gun, and was going to get him a man. This evening I told him I had to go home. He said, 'Come back, and meet me at the stock-law gate.' I went home, and stayed till evening. I was drinking. My wife and I went to her father's that evening. There I heard Barrett was shot. Started home by Bayley Green's. Took a notion to go to Brigman's to get whisky. Bayley Green said he would go with me, and went. We then went to Stredwick's. We all three went to John Sims' that night. He was lying in the woods. Had the gun there with him. John Sims and I went to Lum Sims'. John Sims handed me the gun, and at his request I set the gun in the house. John Sims and I went on to my house. He stayed all night. Next morning he told me he was going to leave the state. I was not present when Barrett was shot. Didn't see him shot. It was a mile and a half from my house to the place of shooting, and about the same distance from the place where I parted with Sims to the place of shooting. I knew Barrett when I saw him. Had nothing against him. Barrett had never been after me for violating revenue law. I have been no further from shooting than here. I was at Blackwell's when arrested." On cross-exam-

[26 S.E. 113]

ination: "Nobody hired me. I didn't do the shooting. Nobody asked me to shoot Barrett. Have known Sims six years. We had been together once in a while. Had been together that day until about half past two p. m. I met him in the road. We went to Tryon together. I did buy cartridges. Did not tell Foster that I shot Barrett, that I recollect of. We were very drunk, and I will not swear that I did not tell him I shot Barrett. I don't recollect anything about the conversation. When I found Sims in the woods, he had the gun. Don't know where he got the gun. He went off a few steps, and said, T am in trouble.' I did not ask him what his trouble was. I asked him next morning why he had to leave, and he said he had got him a man. I don't know that I am indicted in South Carolina for highway robbery. I have heart...