State v. Harvey
| Decision Date | 15 October 1947 |
| Docket Number | 289 |
| Parties | STATE v. HARVEY. |
| Court | North Carolina Supreme Court |
Criminal prosecution on indictment charging the defendant with the murder of one Nathaniel (Eddie) Roberts.
The record discloses that on Saturday evening, April 26, 1947 about 8:00 P.M., the Chief of Police of New Bern was called to the home of Nathaniel (Eddie) Roberts and there found him dead on the floor in the kitchen of his house with a bullet wound in the back of his head, just behind the ear.
Owen Dove, who was at the home of his son next door to where the deceased lived, testified that he saw a man come up the 10-or-15-foot alley between the two houses poke a rifle through the porch slats and fire into the Roberts kitchen. 'It was dark,' but the man 'looked to be about the same size and height' of the defendant. The witness had seen the defendant that afternoon and had observed him in the street as he threw a bottle at the wife of the deceased. 'I couldn't tell what kind of clothes he had on * * * The rifle sounded like a .22 * * * In my opinion, it was a .22 * * * I had a chance to see the man but I couldn't tell who he was. ' The witness further said that after the shooting, the man he saw with the rifle climbed
An investigation by the officers revealed that the defendant was at the home of the deceased, around two o'clock on the day of the shooting, playing cards and gambling for small stakes. He was drinking, and an altercation ensued between him and the wife of the deceased. As he left the house, he threatened to 'get his gun and shoot both of us' (the wife of the deceased and David Green). Later that afternoon the defendant and the deceased met at George Downey's Cafe, and some words were passed. It seems the deceased slapped the defendant. They both left the cafe.
Shortly thereafter, the defendant got Elon Hill to take him to where he lived with his brother just over the Jones County line. The defendant went into the house, changed his clothes, and came out in about 25 minutes with an overcoat over his arm. Hill then drove the defendant back to New Bern, arriving there around sundown. Hill says, 'He couldn't have had a rifle under that overcoat when I saw it.'
The wife of the deceased again saw the defendant in a cafe, near the scene of the shooting, about 9:30 that evening. The defendant was arrested on the following Tuesday. He admitted to the officers that he was in New Bern on the afternoon and night of the shooting. Further than this, he was somewhat equivocal about his movements, but finally said he had lost some money gambling at the home of the deceased and that he had some trouble there. He never admitted going to his brother's home and getting his overcoat in the afternoon. 'He always said he went back home at 10:00 o'clock on the bus.'
The defendant's sister-in-law, in whose home he lived, testified that a .22 rifle, which her husband had borrowed to kill some hogs, mysteriously disappeared about that time, i. e., 'when her husband left' to go to Baxter Springs.
The death bullet was identified and offered in evidence, albeit the record is silent as to its size. The death gun was never found.
At the conclusion of the State's evidence--none was offered by the defendant--the solicitor announced that he would not ask for a verdict on the capital charge as the deceased and the defendant had been quarreling on the day in question, but would seek a verdict of murder in the second decree, or manslaughter, as the jury should determine the facts from the evidence.
Verdict: Guilty of manslaughter.
Judgment: Imprisonment in the State's Prison for not less than 15 nor more than 20 years.
The defendant appeals, assigning as error the failure of the court to sustain his demurrer to the evidence and dismiss the action as in case of nonsuit.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.
Charles L. Abernethy, Jr., of New Bern, for defendant.
The question for decision is whether the evidence suffices to overcome the demurre and to carry the case to the jury. The trial court answered in the affirmative. We are inclined to a different view.
True it is, the evidence seems to point an accusing finger at the defendant as the perpetrator of the crime, and to excite suspicion, somewhat strongly perhaps, of his guilt, but it apparently leaves too much to surmise or assumption to support a conviction. State v. Warren, N.C., 44 S.E.2d 207; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814, and cases cited.
The defendant entered upon the trial with the common-law presumption of innocence in his favor and with the burden on the State to establish his guilt beyond a reasonable doubt. State v. Singleton, 183 N.C. 738, 110 S.E. 846. In other words, the jury was required to be 'fully satisfied', 'entirely convinced', or 'satisfied to a moral certainty', of the defendant's guilt before a verdict could be rendered against him. State v. Harris, 223 N.C. 697, 28 S.E.2d 232. The defendant's plea of traverse put in issue the question of his guilt.
The State relies upon circumstantial evidence which is a recognized and accepted instrumentality in the ascertainment of truth; and, in many instances, quite essential to its establishment. State v. Coffey, 210 N.C. 561, 187 S.E. 754. In such case, however, the defendant being charged with a felony, the rule is, that the facts established or...
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