State v. Hines, 500

• Decision Date: 15 December 1965
• Docket Number: No. 500,500
• Citation: 145 S.E.2d 363,266 N.C. 1
• Parties: STATE of North Carolina v. Rudolph HINES, James William Leak, George Albert McNeill and Jimmy Lawrence McNeill.
• Court: North Carolina Supreme Court

Page 363

145 S.E.2d 363

266 N.C. 1

STATE of North Carolina v. Rudolph HINES, James William Leak, George Albert McNeill and Jimmy Lawrence McNeill.

No. 500.

Supreme Court of North Carolina.

Dec. 15, 1965.

Atty. Gen. T. W. Bruton and Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Alton W. Kornegay, Raleigh, for defendant appellant Rudolph Hines.

Charles H. Sedberry, Raleigh, for defendant appellant James William Leak.

Carl C. Churchill, Jr., Raleigh, for defendant appellant George Albert McNeill.

John W. Liles, Jr., Raleigh, for defendant appellant Jimmy Lawrence McNeill.

PARKER, Justice.

The State offered as one of its witnesses Joe Alston. This is a summary of his testimony, except when quoted: He is 26 years old and is a brother of John Thomas Alston, who is 25 years old. Between 8 and 8:30 p. m. on 16 February 1965 he, his brother John Thomas Alston, Rudolph Hines, James William Leak, George Albert McNeill, and Jimmy Lawrence McNeill met at a service station on South Street in the city of Raleight. All six of them got into George Albert McNeill's automobile. They rode down Highway #401 to its intersection with Highway #70, then they went down Highway #70 to the town of Garner, and then went out on Highway #50. A store operated by P. R. Gulley is just off Highway #50. They rode by Gulley's store, turned around, came back, and stopped about two blocks from the Gulley store. 'We did not have any discussion as to what we were going to do at Mr. Gulley's store, except I heard someone say we were to go to pick up a piece of change. I asked them on the way down there after we got in sight of the place if there was going to be a robbery.' When they stopped near Gulley's store they had a flat tire. Rudolph Hines, James William Leak, Jimmy Lawrence McNeill This is a summary of the testimony of P. R. Gulley, a witness for the State, except when quoted: His store is about four miles south of Garner just off Highway #50. It is primarily a sausage business, and he keeps drinks, nabs, and candy for sale. About 9 p. m. on 16 February 1965 he was alone in his store working with his sausage and getting some ready for sale. He heard an automobile stop to the left of his store. Shortly thereafter two Negro men came in, said they had a flat tire, and asked if he had a jack, as they did not know if their old jack would work. He replied that he had an old jack in his truck parked in front of the front door. They bought drinks, talked a few minutes, and left. Shortly thereafter they came back and wanted his jack. He went outside to his truck, got his jack, came back in the store, and gave it to them. They left. He went back to work on his sausage. Pretty soon two Negro men came in and wanted change for a dollar. He did not have sufficient change in his pocket. He went to his cash register, which had hung up the Saturday before, took the tray out of the cash drawer, and set it up on a shelf. He took fifty cents out of the tray and fifty cents out of his pocket, and gave them change for a dollar. They went out of the store. He went to a counter at the end of his store and began working on his sausage. Three of the Negro men came back in the front door of the store. It was cold and they went and stood by the heater. The same man, who bought drinks before, bought another drink. He told them he did not sell cigarettes. They stood around the heater talking. He went back to his sausage work. The next thing he knew one of them, who he learned later was John Thomas Alston, stepped from behind his refrigerator with a pistol, and said, 'this is it.' (The court instructed the jury that the statement, 'this is it,' should be considered only against defendants James Leak and Rudolph Hines and that they should not consider it as against George Albert McNeill and Jimmy Lawrence McNeill.) Then another of the Negroes, whom he identified in the courtroom, and who is James William Leak, grabbed him around the body. Gulley testified: 'My meat block was sitting there. The defendant James Leak comes in between myself and the meat block and grabs hold right around me, this way, right around my body and when he done that, this boy here, Rudolph Hines, comes behind the meat block I think. He comes right up behind me and starts in my pocket in my hip pocket and side pockets and among the two they went all over me, taken everything in my pockets out, pocket knife, keys, billfold, check books, even cleaned this pocket up here. When I said between the two, I am referring to James Leak and Rudolph Hines. Alston was holding the pistol on me. They took everything on me. They dropped one key on the floor that they didn't pick up. I had some money in my billfold. Best I can figure there was around $100.00 or little better in my pockets and in my cash drawer, they got it both. I had around $85 or $90 in my pocket.' When they finished going through his pockets, John Thomas Alston, with the gun, stepped to the right and said, 'Come out the front door.' The back door was open, and he saw another man over that way, but he could not afford to turn and look, when Alston said, 'Come out the front door.' That man was over in the vicinity where his cash drawer was on the shelf on the right side. He went out the The State offered in evidence an extrajudicial confession made by George Albert McNeill to Deputy Sheriffs W. D. Chalk and K. W. O'Neal to this effect: He, James William Leak, Jimmy Lawrence McNeill, Rudolph Hines, John Thomas Alston, and Joe Alston were in an automobile at the home of Joyce McNeill. They drove out on Highway #50 to P. R. Gulley's store where they had a flat tire. They went in his store and borrowed his jack. They carried the jack back in the store, and at that time John Thomas Alston held a pistol on Gulley and they proceeded to take his billfold from his pocket, to empty his pockets, and they also took his cash drawer from on top of the counter, and went back to the automobile. They had planned to go out and rob Gulley's store. John Thomas Alston had mentioned the Swift Creek Grocery, but when they reached it they did not stop because so many people were there. They left Gulley's store and drove back to Raleigh. Someone threw the cash drawer out the window of the automobile at a bridge in a curve of the road. The court instructed the jury that George Albert McNeill's statement was not to be considered in any way by them against Rudolph Hines.

and his brother got out of the automobile and went towards the Gulley store, leaving George Albert McNeill and himself at the automobile. Someone came back with a jack, and he and George Albert McNeill changed wheels on the automobile. A few minutes later, his brother, Rudolph Hines, James William Leak, and Jimmy Lawrence McNeill came back to the automobile, and one of them had an article that looked like a cash register tray. 'I did not see any money but I did hear some change.' All six of them got in the automobile and they went back to Raleigh, where he got out of the automobile and went home. 'I didn't receive any money, nor did I ask for any because I wasn't in on the deal.' front door with his hands up. Alston told him to drop his hands. He then trotted to a neighbor's house and told his wife to call the sheriff, that he had been robbed. From there he ran home.

The State offered in evidence an extrajudicial confession made by Jimmy Lawrence McNeill to Deputy Sheriffs W. D. Chalk and K. W. O'Neal to this effect: He admitted being with them in the robbery. He said he got between $11 and $12, and that John Thomas Alston had the pistol. The court instructed the jury that Jimmy Lawrence McNeill's statement was not to be considered in any way by them against Rudolph Hines.

The State offered in evidence an extrajudicial confession made by James William Leak to Deputy Sheriffs W. D. Chalk and K. W. O'Neal to this effect: He got between eleven and twelve dollars. The money was divided at John Thomas Alston's sister's house. He, Joe Alston, George Albert McNeill, Jimmy Lawrence McNeill and Rudolph Hines were in the automobile. John Thomas Alston had the pistol, and he went into the store. The court instructed the jury that Leak's statement was not to be considered in any way by them against Rudolph Hines.

Deputy Sheriff W. D. Chalk testified as follows: 'While each of the defendants Jimmy Lawrence McNeill, James Leak and George McNeill was making these statements, neither of the other two denied any statement made by the other. It was just a general conversation, they all laughing about it and telling again how it happened, how they got together and how they went down to Mr. Gulley's store. Either Deputy Sheriff O'Neal or I had talked to each of them individually before I had the three of them together and they were giving this discussion.'

Defendant Hines made no extrajudicial statement.

The defendants offered no evidence, except that defendants Leak and the two McNeills testified in the absence of the jury on the preliminary inquiry as to the competency or incompetency of the extrajudicial confessions made by each one of them.

When the case was called for trial on the joint indictment here, each of the four defendants moved for a separate trial. The court denied the motions, and each defendant assigns it as error, except defendant George Albert McNeill, who states in his brief that he abandons this assignment of error by him. The granting or refusing of the motion for a separate trial by each of the four defendants was a matter which rested in the sound discretion of the trial court. No abuse of discretion appears on the present record. The defendants were charged in a joint indictment with being partners in crime, and they were tried together as his Honor evidently thought was

meet and proper. The assignment of error by each defendant, Hines, Leak, and Jimmy Lawrence McNeill is not sustained. State v. Anderson, 208 N.C. 771, 182 S.E. 643; 1 Strong's N.C.Index, Criminal...