State v. Holland, (No. 482.)

• Decision Date: 11 May 1927
• Docket Number: (No. 482.)
• Citation: 138 S.E. 8
• Court: North Carolina Supreme Court
• Parties: STATE. v. HOLLAND.

138 S.E. 8

(193 N. c. 713)

STATE.

v.HOLLAND.

(No. 482.)

Supreme Court of North Carolina.

May 11, 1927.

pearance when he jumped at him that he was mad. and thought he was drinking, held prejudicial error, in view of repeated threats made by deceased against defendant's life and communicated to defendant, prior assault by deceased on defendant, and defendant's knowledge of de-con sod's general reputation as dangerous and violent man.

Appeal from Superior Court, Catawba County; Horwood, Judge.

Glen Holland was convicted of second degree murder, and he appeals. New trial.

The defendant was convicted of murder in the second degree, and sentenced to be confined in the state's prison for 12 years at hard labor.

The substance of the state's evidence: Defendant, Glen Holland, killed Paul Donkel, October 24, 1026, about 3 o'clock in the evening, in the Riverside Café in the town of Brookford. The café had the usual counters, stools, etc. Donkel was killed near the back of the room. He was shot once through the eye. Deceased weighed about 170 pounds; was about 21 years old. When examined a short time after the killing by the sheriff he had in his hip pocket three-fourths of a pint of whisky. The only means of ingress and egress to the cafe from the public road is the front door. The defendant was in the café, and had a pet squirrel. He asked Dewey Austin, state's witness, who was in the café, to keep the squirrel and gave him some chestnuts to feed it, as he was going out to take his girl to ride. He started towards the front door, the only way out, in a perfectly good humor. The deceased came in the front door, meeting defendant going out. Defendant commenced backing, with his hand on his right hip pocket. Nothing was seen in deceased's hands. Defendant was backing, and deceased walking towards him. Defendant backed, and deceased followed him 12 or 15 feet. Deceased was about 6 feet from defendant when defendant shot him— got his pistol from his hip pocket and shot deceased one time. Deceased fell, and did not move. Defendant got his squirrel off Austin's shoulder, and went out the door. Both had been in the café that morning about 11 o'clock, and at 1 o'clock, but did not speak to each other. When deceased was walking towards defendant, he was taking slow, short steps. Defendant said, "Don't come on me, Paul" (meaning Donkel), and deceased said "Don't pull no G— d—— knife on me." He looked as if he was going to get hold of defendant, and he seemed about half mad. Defendant backed up behind the stove in the corner. Defendant looked like he was frightened and scared. When deceased came in the door he lit a cigarette, was smiling, and said to some one that he was going to knock "h—— out of somebody." Some one said "No, I would not do that." Defendant said, "Paul, don't come on me." Deceased said, "Don't pull no G—— d—— knife on me." Defendant kept telling deceased not to come on him, until he got next to the stove. Deceased kept walking towards him. Then defendant shot. From where Holland shot it was about 25 feet to the door. Deceased had a cigarette in his left hand. The only means of escape was going out the front door.

Jesse Smith, for the state, testified, in part:

"About three months before this shooting occurred, I witnessed a difficulty between them— Paul Donkel and Glen Holland. They had a little trouble at the Riverside Cafe on Saturday night. After Paul hit Glen, Glen said: 'You son of a b—, I will get you later.' Paul started walking off, then stopped, and said, 'You can get me now if you want to, ' and Glen said, '1 will get you later.' This happened out in front of the Riverside Café"

When this occurrence took place, defendant was assaulted by deceased while sitting in the car talking to Nora Hefner in front of the café. This witness admitted: (1) He was sentenced to the roads for forgery; (2) accused of breaking in store at Brookford and stealing goods; (3) convicted of fighting two or three times and sent to the roads; (4) been off and on the roads for past 2 or 3 years; (5) been" accused of selling liquor, "but they never did catch me."

Charlie Nance, an uncle of deceased, testified, in part:

"He (defendant) said he was not going to whip Paul (deceased), but he was going to shoot h— out of him. This happened the last of September."

Dr. Ford testified that the general reputation of Nance was good.

The defendant testified, in part, that he was 18 years old, and weighed about 140 pounds; knew deceased for 10 or 12 years; lived about 3 miles apart; was in the café about 11 o'clock and about 1 o'clock, and saw deceased, but no word was spoken between them; went to café about 3 o'clock, drank a Coca-Cola, gave pet squirrel to Dewey Austin to keep for about half an hour. "I was going to take my girl, Nora Hefner, for a ride, when I left the café." He described the cafe room, and testified as to the occurrence:

"I started to go get in my car to take my girl to ride. I got within 2 or 3 feet from the door. Donkel came in, and the first I heard him say was 'G— d— you, I am going to kill you, or knock h-out of you, ' or somethink like that, and then he jumped at me. I began to back. I had gotten within about 3 or 4 feet of the door, which was about 25 feet from where 1 had been with the squirrel and the other folks. 1 did not know Paul Donkel was at the door until he spoke. I began to back away, and said, 'Paul, don't come, don't come on me, ' three or four times. I backed as far as I could between the counters and back behind the stove, and, when 1 got back there, I said again, 'Paul, don't comeon me, ' and he started to take another step towards me, and I shot him one time for the purpose of stopping him. I backed back 20 or 25 feet pretty rapidly. I was scared he was going to kill me and was trying to get out of his way. I was watching him. Paul had his hand right on his hip pocket like that (showing the jury), under his coat when he began to come on me. I did not observe his left hand. He spoke something to me several times after he jumped from the door to me. I was too scared to notice much of anything. He was coming on me, and had me hemmed up in the corner, and 1 said, 'Paul, don't come on me, I don't want to have any trouble, ' and he says 'Don't you pull no G— d^— knife on me.' Where I was, I could not step back any further. I believed he was armed. I shot Paul Donkel because 1 was scared of him, and wanted to stop him. I knew he was a dangerous man. I was scared he was going to kill me, and I just had to do it. 1 shot him for the purpose of stopping him. After 1 shot him, I left the building. I came back on the following Thursday, and gave myself up to the sheriff. I know that Paul Donkel had made threats towards me before the 24th of October. It was in the city jail one Saturday morning, a couple of months before the 24th of October. G. C. Travis, chief of police of Brookford, was present at the time he made the threat. Brookford is about 3 miles from Hickory. Paul Donkel was locked up in jail. He walked up to my car one night while I was sitting there talking to my girl, Nora Hefner, and hit me. He nearly beat me up. The next morning I went to the police and had a warrant sworn out. He sent for me while he was in jail, and said he wanted to see me. I went back there, and he said, 'G— d— you, you son of a b—, I have not done no lifetime crime, and I will get out some time, and when I do I am going to kill you.' * * * The next threat that I heard him make against me was one Saturday afternoon. 1 was standing on my father's porch and he was in front of B. L. Pitts' store. Mr. Pitts is a merchant at Brookford, and is here now. Paul said 'G— d— you, you son of a b—, I am going to kill you.' He was talking to Mr. Pitts about me. I turned around and went into father's store. Since that time a number of threats have been communicated to me that the deceased, Paul Donkel, made against me.* * * Arthur Hefner said Paul said, I am going to throw dynamite under the G— d— car and blow me into h—.' * * *Will Krider said Paul said: 'He wished he could lay off from work just about one hour, that he would like to kill that son of a b—.' Paul was working on the yard force with Will Krider. * * * 1 recall when it was that Paul began to show a decided hatred for me. It was when I had the warrant taken out for him, and I was summoned on a case where I had seen him cut a man, Ern Julian. I had sworn against him for the state— they had me summoned—and, after I had the warrant taken out, it seemed to me that he always had it in for me ever since then. I did not have anything to do with the warrant in the Ern Julian Case. After I was subpoenaed as a witness, he struck me when I was in my car with Nora Hefner. These two cases were tried together at the same time in Hickory, and 1 was witness for the state. Up to that time, I do not know of any feeling he had towards me. On one occasion when I passed riding in my car, and passed where he was walking, Paul Donkel threw a rock at me, and hit the back of my car; dented in the back of the car where it hit. That was tried in the recorder's court in Hickory. I did not know he was about before the rock hit the car. There were four or five of them together in the road. I got the pistol that 1 shot Paul Donkel with some 4 or 5 months ago. I put it in my pocket the Saturday night before. I had heard that Paul Donkel was in Catawba county. I was not looking for him in the least. I lived about half a mile from the Riverside Cafe.

"Q. State whether or not or did you know the general reputation of the deceased, Paul Donkel, as being a dangerous and violent man? A. Yes; he was dangerous. I was scared of him.

"Q. Answer the question whether or not it was good or bad. A. It was bad."

He denied, as did Nora Hefner, that he made any statement as testified to by state's witness Jesse Smith. He denied that he had any ill feeling...