State v. Head

• Decision Date: 04 January 1939
• Docket Number: No. 363.,363.
• Citation: 200 S.E. 415,214 N.C. 700
• Court: North Carolina Supreme Court
• Parties: STATE. v. HEAD.

214 N.C. 700

200 S.E. 415

STATE.

v.HEAD.

No. 363.

Supreme Court of North Carolina.

Jan. 4, 1939.

Appeal from Superior Court, Alexander County; Frank S. Hill, Special Judge.

Clarence Head was convicted of involuntary manslaughter, and he appeals. No error.

Criminal action on indictment charging defendant with the murder of one Glady

Lackey.

Upon the call of the case for trial, the solicitor announced that he would not ask for a verdict of murder in the first degree, but would ask for verdict of murder in second degree or manslaughter as the evidence justified.

The uncontroverted facts are substantially these: On October 9, 1937, Glady Lackey, age 18 years, son of Robey Lackey and his wife, Stella Lackey, was shot and killed by a gun in the hands of defendant, aged 37 years, his first cousin. The shooting occurred on the back porch of the home of Robey Lackey, where Glady and his mother were standing, --the defendant being on the ground. Robey Lackey and Glady Lackey and defendant were and at all times prior thereto had been good friends.

The State offered as an eye witness Mrs. Stella Lackey, who testified in substance that: She sent Glady to the barn for some eggs. When he returned and was in the act of delivering the eggs to her, defendant, who was standing on the ground with his single barreled gun under his right arm, barrel pointing down, raised the gun, pointing the barrel towards Glady, and then the gun fired, the load striking Glady in his left side under the arm. She said: "He fell and I said to Head 'Run for a doctor' and he started. That is all I can tell. My son died in about five minutes". On cross examination she testified: "When I went out on the porch to get the eggs, immediately before the shot was fired, Head said: 'Howdy'. That is all he said before the shot was fired. Immediately after the shot he said it was an accident, and when i said go for a doctor, he started off."

Defendant, in his own behalf, testified that he lives at Hanes near Winston Salem. On the morning of October 9, 1937, he, with his wife and two children, drove to the home of his father. From there he went up on the mountain squirrel hunting. In returning he went to the home of his uncle, Robey Lackey. As he passed the barn he saw Glady, the deceased, and walked and talked with him going to the house. On arriving at the house, "I stopped on the ground at the back porch, Glady going up on the porch. Stella Lackey, his mother, come out and I said 'Good morning'. I was carrying a single barrel shot gun, breach loader with a hammer, under my...