State v. Herring

• Decision Date: 28 October 1931
• Docket Number: 194.
• Citation: 160 S.E. 891,201 N.C. 543
• Parties: STATE v. HERRING.
• Court: North Carolina Supreme Court

160 S.E. 891

201 N.C. 543

STATE v. HERRING.

No. 194.

Supreme Court of North Carolina

October 28, 1931

Appeal from Superior Court, Sampson County; Small, Judge.

Ernest Herring was convicted of murder in the first degree, and he appeals.

No error.

Whether instruction for enlargement upon or definition of "reasonable doubt" should be granted is in sound discretion of trial court.

See also 200 N.C. 308, 156 S.E. 538.

The defendant was convicted of murder in the first degree of one F. F. Newton, on June 28, 1930 (Saturday), and sentenced to be electrocuted.

The facts: Mr. Newton had been postmaster at Kerr for 24 years he was 70 years old, and in good health; weighed about 200 pounds. Newton always walked home at noon for dinner, between 12 and 1 o'clock, and followed the path that led through Seller's field, and usually brought a white sack with the home mail and business letters in it. When he left home that Saturday morning to go to work at the post office, he was wearing a light shirt, light trousers, and a straw hat. He wore a watch attached to his trousers by a red string. Newton was found a little before sundown some distance from the road that leads to his home. A trail indicated that something had been dragged off, the grass mashed down flat; following the trail in the woods about 15 to 20 steps was found a slip of paper in Newton's handwriting. After a few steps the grass gave out and the trail was through bushes and shrubbery, it went to the edge of the bay, and it looked like scuffling had taken place. Further into the bay where the bushes had been dragged down and separated, and about 20 steps further down behind a clump of bushes, Mr. Newton was found. When found he was called to; he opened his mouth and threw up his right hand and drew up his left knee; when called again he did not move. He was bare from his waist line to his neck. His eyes were blue and swollen, and his head had been badly beaten, and on his head and back of his neck there were many lacerations, and his head was lying in a pool of blood. He had lost considerable blood. His breast and shirt and trousers were bloody. The top of his head had been severely beaten, about eight or ten times, one at the base of his neck was about three inches long. He died the next day. About a hundred yards from the scene of the killing the mail sack was found. A small piece of paper was found which led to the belief that the sack was near, and about 20 feet into the bay the sack was found hanging to the trees, the family mail and newspapers in it. While bringing the sack out, two packs of cigarettes were found. The sack was found in about 35 yards from the road traveled by newton and in the direction of Newton's home, and the defendant's home. Tracks were found "and they were made with leather bottom or stiff bottom shoes" and they had been turned sidewise and made a sidewise track, and there were tracks that looked like they were made with rubber bottom shoes. The tracks were near the stump about 55 yards from where the body was found. On the trail that led into the bay, about 25 yards from the road, was a scuffled place in the bushes. There were two or more different sets of tracks. The main track was the rubber bottom track. About 30 yards from this stump on the left-hand side of the road going towards Mr. Newton's home, there was a place that looked like somebody had laid down on the grass and pressed their elbows and knees down. One could see from this stump about 100 yards up the road towards Kerr. Next morning about day parties started an investigation. Along the trail where Newton was dragged, on each side of this trail about 2 feet wide, there was a trail where some one had walked. Also there was a good-sized scuffled place and some pennies and nickels and other articles that were in Newton's pockets, and 4 or 5 steps along the trail was found a long club and two short clubs. The short clubs had been freshly broken. These were found about 15 steps away from where Newton was found.

W. L McPhail testified, in part: "Across the road from the stump we found where someone had laid behind the stump facing Kerr. Could see one hundred and ten yards towards Kerr. We observed rubber bottom tracks that made a round impression on the sand. We took the trail and went down side of the bay crossed Deer Ford, and about three hundred yards down a path. There was a leather bottom track about the stump. We followed the track about a half mile in the direction of the defendant's home. Defendant lived about a mile and a quarter from the scene of the crime. I know the defendant. After we found the tracks and clubs we went to Kerr to show the Sheriff the clubs and hat, and when we got out there the Sheriff had Ernest. They went and got Chevis and came back and the Sheriff and some of the deputies went off with Chevis and asked me to keep Ernest until they returned. It was between eight and nine o'clock the morning of June 29th. Ernest had on brown tennis shoes, rubber bottoms. The right shoe was bursted out on the side. The tracks in the swamp were bursted out on the right shoe. We followed that track across the Deer Ford for about one half mile. I asked him (Ernest) what he was arrested for and he told me it was for stealing gasoline. I asked him if he had on those shoes the day before and he said he did."

Ebb Newkirk testified, in part: "I saw the defendant, Ernest Herring, and his brother, Chevis Herring, sitting on Mr Carter's store porch about six o'clock the day before Mr. Newton was murdered, June 27, 1930. Mr. Newton went into the post office carrying some money that he was preparing to send off that evening, and Ernest and Chevis went into the post office. Mr. Newton was handling money, and Ernest and Chevis both saw him with it. They left the post office and went back to Mr. Carter's store porch and seemed to be engaged in a conversation. They stayed in the post office just a few minutes, did not ask for any mail and did not have any letters to mail. I heard nothing that was said between them after they left the post office."

The defendant went on the witness stand and denied his guilt. When taken to the scene of the crime at night by the officers, under most trying circumstances, he denied his guilt.

Dr. V. R. Small testified, in part: "It is my opinion that the witness, Chevis Herring, is not crazy, but that he shows a decided mental deficiency. His mental development has been arrested at about the age of eight years. The fact that he is grown physically and apparently is a normal man physically has no bearing upon his mentality. He has the mentality of a child of eight years of age. (In answer to a hypothetical question) I have an opinion, satisfactory to myself as an expert on mental and nervous disorders, that in consideration of the fact that the witness, Chevis Herring, has the mentality of a child of eight years of age, that neither of his statements would have any more weight and should be no more worthy of belief than another. *** If the jury should find from the evidence that the witness, Chevis Herring, and the defendant on trial had had a fight and that the witness, Chevis Herring, had slapped the defendant in the mouth and that the defendant had jerked Chevis out of the car, and that Chevis had taken a pump and struck the defendant with it, having the defendant down on his back on the ground, and that the defendant had cut the witness, Chevis Herring, with a knife and it required ten stitches to sew it up; and if the jury should find that the officers had this witness, Chevis Herring, in their custody and had put him through the third degree, and said: "Now, we want you to confess and not take all the blame on yourself,' I have an opinion, satisfactory to myself, that under those circumstances a child with the mentality of eight years of age would have a tendency to strike back and implicate another through a spirit of revenge, or in a spirit of shirking responsibility and shifting the blame to someone else. (On cross-examination) If the jury should find that the deceased had a watch on him and that witnesses have testified that he had a watch and identified the watch here as being the watch he had on at the time, and if the jury should further find from the evidence that Mr. Newton carried that watch attached to his pants pocket with a red string, and if the jury should further find from the evidence that Chevis Herring said that he got that watch of Mr. Newton's and carried it off some distance a mile or more and concealed it, and then several days afterwards he should go with the officers and find that watch where he said that he had placed it, I think that he knew what he was doing."

Defendant offered in evidence the following:

"State's Prison

"Raleigh, N. C.

"I, Chevis Herring, was convicted of the murder of Mr. F. F. Newton at Kerr Station on June 28th, 1930. My brother, Ernest Herring, was also convicted of the murder of Mr. Newton. I was tried and convicted first, and at the trial of Ernest Herring I was put on the stand by the State, and I testified that Ernest was with me and helped me kill Mr. Newton. Sheriff Moore told me that when I told about it not to take all the blame on myself.

"I have now sent for Mr. H. H. Hubbard, who is my lawyer, and for Mr. A. L. Butler and Mr. H. A. Grady, Jr., who are Ernest's lawyers, and I now state that Ernest was not with me at the time I killed Mr. Newton. He knew nothing about it. I saw Ernest on Thursday, June 26th, before the killing, and nothing was said about killing Mr. Newton. I did not see Ernest again until Sunday morning, June 29th, after the killing.

"I killed Mr. Newton myself, and Ernest is absolutely innocent, knew nothing about it, and had nothing to do with it.

"[

...