State v. Jarrell

• Citation: 141 N. C. 722,53 S.E. 127
• Parties: STATE. v. JARRELL.
• Decision Date: 27 February 1906
• Court: United States State Supreme Court of North Carolina

53 S.E. 127

(141 N. C. 722)

STATE.

v.JARRELL.

Supreme Court of North Carolina.

Feb. 27, 1906.

1. Criminal Law — Evidence— Res Gestae.

Defendant and H., after passing deceased and B., who were riding in company, ran down the road toward deceased and B. with the evident purpose and common design of attacking them, during which either defendant or H. said, "We will whip you in a minute, " whereupon H. drew a knife with which he killed deceased. Held, that the declaration so made was admissible against defendant as res gestae and as evidence of a common purpose on the part of both defendant and H. to attack deceased and B.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 815.]

2. Criminal Law—Principals.

Where two persons aided and abetted each other in the commission of a crime, both being present, they were both principals.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 71-73.]

3. Same—Conviction of Principal—Principals in First and Second Degrees.

The rule that an accessory cannot be tried and convicted before the principal has no application as between principals in the first and second degrees.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 96-102.]

4. Same—Evidence.

Where defendant was not only present while his companion killed deceased, and, though he must have seen such companion draw his knife, made no effort to stop the murderous assault, but, on the contrary, after deceased had been struck, turned to deceased's companion and said, "If you get off your horse, I will eat you up, " the evidence was sufficient to charge him as a principal guilty of the homicide.

Appeal from Superior Court, Warren County; Long, Judge.

Burton Jarrell was convicted of murder in the second degree, and he appeals. Affirmed.

The defendant and one Garfield Hicks were jointly indicted and tried at the special term, December, 1905, of Warren superior court as co-principals In the murder of W. G. King. The jury failed to agree as to Hicks, and were discharged. They rendered a verdict of murder in the second degree as to Jarrell, and from the judgment pronounced he appealed.

J. C. L. Harris & Son, for appellant.

The Attorney General, for the State.

BROWN, J. There was evidence tending to prove that the deceased and one Barnes were riding in company on the public road in Warren county, when they were accosted by some one in a buggy, who said, "Look out, give us the road." The persons in the buggy were the prisoners, Hicks and Jarrell. After some words the deceased said, "You can pass, " but he would like to know what they were fussing about Each prisoner at once jumped out of the buggy. Both ran down the road towards the deceased and Barnes, and at the same time one of the defendants said, "We will whip you in a minute." When Hicks got in four or five steps he drew his knife, and turned to the deceased, and said "no damn white man could run over him." He had the knife in his hand. The deceased struck him with the lash of his buggy whip. Hicks struck the deceased with his knife and cut his throat, from which wound the deceased shortly afterwards died. In the meantime Jarrell said to Barnes: "If you get off your horse, I will eat you up."

The defendant Jarrell excepted to the ruling of the court admitting the statement, "We will whip you in a minute, " upon the ground that it was not proved which one of the defendants made it We think this exception without merit. At the time the threat was made the two defendants were together. Both were running down the road towards the deceased and Barnes with the evident purpose and common, design, if the evidence is believed, of making an attack on them. This declaration made, as it was, at the time of the attack, was not only a part of the res gestæ (the essential circumstances surrounding the transaction), but, being made in the hearing of both defendants, it was competent evidence of a common purpose on the part of both to attack Barnes and the deceased. There Is nothing in Matthews' Case, 78 N. C. 535, cited by defendant's counsel, which controverts this.

The principal exceptions relied upon by Mr. Charles Harris, in his well-considered argument and brief for the defendant Jarrell, relate to the insufficiency of the evidence to convict Jarrell of any participation in the offense, and also to the defendant's contention that, inasmuch as Hicks has not been convicted as yet, Jarrell cannot legally be convicted and sentenced for murder in the second degree. We will first consider this last contention, for if it is sound there would be no need to examine the other. If Jarrell had been indicted as an accessory before or after the fact, there would be much in the contention. But he is indicted as a principal. There is practically now no degree as to...