State v. Harris

Citation28 S.E.2d 232,223 N.C. 697
Decision Date15 December 1943
Docket Number651.
CourtNorth Carolina Supreme Court

[Copyrighted Material Omitted]

Criminal prosecution tried upon indictment charging the defendant with the murder of Mrs. E. A. Bill.

The record discloses that on Thursday, August 27, 1942, the defendant entered Bill's Service Station in Hoke County which is about 2 1/2 miles from Raeford on the Fayetteville Highway, and shot three members of the Bill family, one after the other, in rapid succession, and killed them all. Those killed were Mrs. E. A. Bill, her son, Eugene Bill, and her married daughter, Mrs. Estelle Wilson.

Three separate indictments were returned against the defendant charging him with the several homicides. He was tried on the bill charging him with the murder of Mrs. E. A. Bill.

The defendant's plea was insanity or mental irresponsibility bottomed on the fact that his son, Johnny Harris, had been shot and killed by Eugene Bill at this same service station on the preceding Sunday, August 23, which had caused the defendant great stress of mind, total loss of sleep, and in the meantime he had taken a number of B-C headache powders all of which had dethroned his reason and rendered him incapable of knowing what he was doing.

During the examination of the State's first witness, who was describing the scene in the service station as he found it after the shooting, reference was made to the position of the body of Eugene Bill; whereupon the defendant moved that the three indictments be consolidated and tried together. Overruled; exception.

Following this determination, the court at first ruled that the State would not be permitted to show any homicide except the one for which the defendant was then on trial. Later, when it appeared that confessions or statements made by the defendant referred to all the homicides, the court permitted evidence of the other homicides as showing guilty knowledge on the part of the defendant. Exception.

The theory of the prosecution is, that the defendant wipes out the Bill family as a matter of revenge. He told Crawford Wright at Fairmont on the day before the homicides that Mrs. E. A. Bill ought to be in jail along with her son Eugene for killing his boy; that he had heard she was the one really responsible for his boy's death. Eugene Bill was then out on bail, awaiting trial on a charge of killing Johnny Harris.

According to statements made by the defendant after the shooting, he went into the service station and said to Mrs. Bill, 'I understand you had some trouble out here last Sunday'. Mrs. Bill replied, 'I don't care to discuss that now'. About that time Eugene Bill came into the service station and went to the cash register to make some change. The defendant spoke to him and said, 'I understand you shot a Harris boy out here Sunday'. Eugene replied, 'Well, he asked for it and I gave it to him'. The defendant then said, 'Yes, you asked for it and now I am going to give it to you'. Whereupon the defendant shot Eugene and he fell. Mrs. Bill started around the end of the counter and he shot her one time and when she was falling he shot her again. About that time Mrs. Wilson came into the station from a back door and he shot her and she fell. It all happened within a space of a few minutes. The defendant told the sheriff that he had six bullets in his pistol and that he shot everything in sight. Continuing, the sheriff testified: 'He said he reckoned he would be electrocuted for it, and he was sorry he had done it. He said the Bill boy had taken the law in his hands and he took the law in his hands, and he guessed they had all gone wrong about it'. On the way to jail, he said, 'I am not drunk and I am not crazy. I didn't do that to try to be a hero or an outlaw, but I did it for love and blood'.

Shortly after the homicides, Dr. Matheson examined the bodies and found that Mrs. Bill had been shot three times; Mrs. Wilson twice, and Eugene Bill once. Death was practically instantaneous in each instance.

After the shooting, the defendant saw Philmore Carpenter, who was working on the highway. He called him and said, 'I want you to take my gun and give it to one of my boys'.

Verdict: Guilty of murder in the first degree.

Judgment: Death by asphyxiation.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

N. McNair Smith, of Raeford, E. L. Gavin, of Sanford, and Varser, McIntyre & Henry, of Lumberton, for defendant.

STACY Chief Justice.

We have here for determination, (1) the correctness of the refusal to consolidate the three indictments, (2) the competency of evidence of other crimes to show guilty knowledge, and (3) the adequacy or sufficiency of the charge.

First, in respect of the defendant's motion to consolidate the three indictments for trial, it is to be observed that this came during the progress of the hearing. Had the motion been made in limine, a different situation might have arisen as the court observed at the time. C.S. § 4622. However, after the jury had been empaneled and the prosecution had begun to offer its evidence, the court regarded the motion as too late and remarked that it could only be granted by ordering a mistrial and selecting another jury to try the three consolidated cases. The jury had been empaneled to try the issue between the State and the accused on the indictment charging the defendant with the murder of Mrs. E. A. Bill, and none other. No motion for a mistrial was lodged by the defendant.

The manner of selecting a jury in a capital case is quite different from that followed in other cases, and the considerations usually surrounding such a jury are also different. State v. Ellis, 200 N.C. 77, 156 S.E. 157; State v. Beal, 199 N.C. 278, 154 S.E. 604. It is only in cases of necessity in attaining the ends of justice that a mistrial may be ordered in a capital case without the consent of the accused. State v. Tyson, 138 N.C. 627, 50 S.E. 456; State v. Cain, 175 N.C. 825, 95 S.E. 930. Here the accused did not assent to a mistrial in order to effect a consolidation. His motion was to consolidate in medias res pending the taking of testimony in the instant case. State v. Rice, 202 N.C. 411, 163 S.E. 112. The trial court was of opinion that the jury, as then selected and empaneled, would not be authorized to try the defendant on the other indictments. For this reason and in its discretion the motion to consolidate was denied. We cannot say there was error in the ruling.

True it is provided by C.S. § 4622 that where there are several charges against any person for the same act or for two or more transactions connected together, or for two or more transactions of the same class of offenses, which may be properly joined, the court will order them to be consolidated. State v. Combs, 200 N.C. 671, 158 S.E. 252; State v. Malpass, 189 N.C. 349, 127 S.E. 248; State v. Lewis, 185 N.C. 640, 116 S.E. 259. This means, however, that the order of consolidation will be made in such cases when seasonably brought to the court's attention, and not at a time when the validity of the whole trial might seriously be threatened by the consolidation. State v. Rice, supra. It is rare that we find a consolidation of capital indictments, though there are some, usually by consent, the most recent one being in the case of State v. Grass, 223 N.C. 31, 25 S.E.2d 193.

No harm has come to the defendant from the court's ruling on the consolidation of the indictments and apparently no benefit would be derived from a new trial on this account.

Second, as to the competency of the evidence of the other crimes to show scienter or guilty knowledge, it may be noted they are all parts of one continuous transaction or the same res gestae. The defendant must have realized this when he interposed a motion to consolidate the three indictments. The homicides were so connected in time and place as to make the evidence of all competent upon the trial of any one. State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. Davis, 177 N.C. 573, 98 S.E. 785. Indeed, as bearing upon the elements of premeditation and deliberation it was proper to show, and for the jury to consider, the conduct of the defendant, before and after, as well as at the time of, the homicide, and all attendant circumstances. State v. Evans, 198 N.C. 82, 150 S.E. 678; State v. Bowser, 214 N.C. 249, 199 S.E. 31; State v. Watson, 222 N.C. 672, 24 S.E.2d 540.

The general rule undoubtedly is, as contended by the defendant, that evidence of a distinct, substantive offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other. State v. Adams, supra; State v. McCall, 131 N.C. 798, 42 S.E. 894; State v. Graham, 121 N.C. 623, 28 S.E. 409. But to this, there is the exception as well established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Hawkins, 214 N.C. 326, 199 S.E. 284. The exception to the rule has been fully discussed by Walker, J., in State v. Stancill, 178 N.C. 683, 100 S.E. 241, and in a valuable note to the case of People v. Molineux, 168 N.Y. 264, 61 N.E. 286, as reported in 62 L.R.A. 193-357.

Speaking to the subject in State v. Beam, 184 N.C. 70, 115 S.E. 176, 179, it was said: 'The rule against admitting proof of extraneous crimes is subject,...

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