State v. Johnston

• Decision Date: 22 December 1896
• Citation: 26 S.E. 163,119 N.C. 883
• Parties: STATE v. JOHNSTON.
• Court: North Carolina Supreme Court

26 S.E. 163

119 N.C. 883

STATE v. JOHNSTON.

Supreme Court of North Carolina

December 22, 1896

Appeal from criminal court, Mecklenburg county; Meares, Judge.

Monroe Johnston was convicted of burglary, and appeals. Affirmed.

Before the jury was impaneled the prisoner submitted a motion for a continuance based on an affidavit to the effect that he had not had time to prepare his case, and that he could not safely go on trial on account of the absence of certain witnesses, viz. Lee Hunter, and Baxter Brown, and Calvin Reid, and others not named; that some of these witnesses had been subpoenaed, and others had not; and that he expected to prove by these witnesses that the most damaging statements of the state's witnesses were false. During the discussion of this motion the statement was made that the three witnesses above named all lived near the town of Matthews situated on the Carolina Central Railroad, 12 miles from Charlotte, and could be brought to court by the next morning. The court refused the motion to continue the case. Prisoner excepted. The court then ordered instanter subpæna to be placed in the hands of an officer, and gave instructions that the officer should proceed immediately to the vicinity of Matthews, or elsewhere, if necessary, and find all of the absent witnesses of the prisoner, and have them in court by next morning. The prisoner was arraigned on Wednesday forenoon of the special term which was held on the first Monday in April, and this cause was set for trial on Monday of the second week in April, which was a regular term. When court opened on Tuesday morning, the officer made his return and the witnesses above named were all in the court room before the state had begun the examination of the state's witnesses, and prisoner was not deprived of the benefit of the testimony of any of his witnesses.

The state put on the stand the following witnesses: A. C. Shields testified: "I am 69 years of age. Live in two-storied house, with two rooms on each story. One of the rooms on the first story is occupied as a bed room, while the other is a parlor. There is also a dining room and kitchen attached to the house. The entrance from the dining room to the main body of the house would be through the dining room door, which opens on the piazza, and then through the back door of the house, which also opens on the piazza." That the parlor is on the opposite side of the passage from his bed room, and that there is a small room, off this parlor, which also has a door opening on the piazza on the rear side of the house. That the witness went to bed about half past 8 o'clock on the night of the 8th of January, and about 12 o'clock at night he was awakened by the screams of his daughter, who together with her mother, was sleeping upstairs. The witness heard, almost simultaneously with his daughter, two pistol shots, and a noise like something had fallen. Witness hallooed out, "What is the matter up there?" and then started to pick up the poker, and a man in the room said "Stand back!" and immediately the man fired a pistol shot, and quickly fired a second shot, and the bullet struck the witness on the right breast, and passed through and came out on the other side of his breast, and then passed through his left arm, and then the man fired a third pistol shot, and then jumped out of the window on to the piazza, and escaped. That, when witnesses retired, this window was down but when he was awakened by the screams, and when the man in question jumped through his window, it was raised. The front door and the back door of the house were both locked, and all the windows downstairs were down, when he went to bed. Some one had entered the dining room on the same night, and had eaten some honey and some articles of food, and a pistol and watch were stolen that night out of his bureau drawer. When the witness hallooed, and gave the alarm, his son, Lemley Shields, came to his house in a few minutes, and he unlocked the back door to let him in. State's witness M. W. Vance came in 10 or 15 minutes, and witness unlocked the front door to let him in. The witness testified that he had been acquainted with Monroe Johnston, the prisoner, for 12 years, and he swore most positively that the prisoner is the man who shot him in his house on the night of the 8th of January, last, as described by him; that he saw the prisoner by the flash of the pistol, and saw something like a white handkerchief around his neck, and he knew the prisoner by his voice, when he said, "Stand back!" He is certain that the prisoner is the man. Witness asked state's witness Vance if he knew whether Monroe Johnston had been released from the chain gang; that, if he had been released, then he was the man. By prosecuting attorney: "Where are your wife and daughter, and why are they not attending court?" Objected to by prisoner as irrelevant, and tending to prejudice his case before the jury. Allowed by the court, and defendant excepted. Witness answered that his wife and daughter were both at home, and sick, and unable to attend court, and had been sick ever since the occurrence. This answer was objected to by defendant. Overruled, and exception. Lemley Shields testified: "Am son of A. C. Shields, and live one hundred and ninety steps from my father's house, and reached it in five or six minutes. I entered the back way. The dining room and the kitchen door opening on the piazza were open. The back door of the house was locked, and the door of the little room opening on the piazza was locked. I searched the house. Went back for my gun, and was absent three or four minutes." Here witness was asked to exhibit a black hat which he said he found in his sister's bed room. Prisoner objected to exhibition of hat, because irrelevant, and because it was not identified as the hat of the defendant. The court overruled objection, allowed exhibition of the hat, and prisoner excepted. Witness exhibited a black hat, which he said he picked up on the floor of his sister's room immediately after his return. Continuing, the witness said: "I picked out two bullets from the side of the bed room, and found one, in a chair, which was bloody. I found that some one had been eating honey and other provisions in the dining room." The witness testified that he was familiar with his father's house. The state here asked the witness to produce a diagram of his father's house. Prisoner objected. Objection overruled. Witness produced the diagram, and swore that it was correct, and it was exhibited to the jury. The witness stated that on the next morning he found the tracks of the man who jumped off the porch in his stocking feet. He followed the tracks to a place where the man had put on his shoes. Also found where a man had been standing by an apple tree, and by a peach tree, near a house. Witness was asked by prosecuting attorney: "Where were your mother and sister when your reached and entered your father's house?" Objection overruled, and defendant excepted. Witness answered that his mother and sister were upstairs. Dr. Craven, for the state, said: "I was called that night near 1 o'clock, to see Mr. Shields. I found that a bullet had entered his right breast, high up, and that it came out one and a half inches from his left nipple, and passed through his arm." Prosecuting attorney asked: "When did you see Maggie Shields, and is she able to attend court?" Objection by prisoner overruled. Exception. Witness answered: "She is not in a condition to attend court." W. M. Vance, for the state: "I went to the house of Mr. Shields. He asked me if I knew whether John Johnston was off the chain gang or not, and I told him that I did not know, and he remarked that, if he was, he was the man that was in his house." W. H. Winders, for the state, said: "I saw the prisoner on the 27th of December, 1895. He had a towel around his neck, and wore a black hat." Here the state offered to put in evidence the hat, but witness said: "I do not swear that this was the hat that Monroe Johnston had on on that occasion, but it looks exactly like it." Prisoner objected to introduction of the hat. Overruled and exception. Henry Stewart, mail carrier, testified for the state: "I met the prisoner next morning after the burglary, between daylight and sunrise, with a white cloth around his neck, walking fast, on the Statesville road, going towards Charlotte. I think it was he, but won't swear positively. I sold him a pistol, 38-caliber, about three years ago." J. A. Pucket, for the state: "I overtook a man, before sunrise on the morning of the 9th of January, four and a half miles from Charlotte, dressed with a brown coat. I saw Stewart, also, about that time." Jameson, for the state: "On the evening before the Shields trouble, a man passed my house going towards Mr. Shields" with a whitish hat and a brown coat." Two witnesses testified, for the state, that they saw the prisoner at Hunter's store, in Derita, between 9 and 11 o'clock on Monday night preceding the 8th of January. Two witnesses for the state swore that they saw defendant near Latta Park about 4 o'clock Friday afternoon, the 10th of January; that he gave them some whisky. One of the witnesses said that he had a pistol in his pocket and a cloth around his neck. Chief of Police Orr, for the state, said: "I went to Shields' house with the sheriff on the morning of the 9th of January. I saw there three bullets. I fitted one to a 38 shell. Saw the place where a man had been standing by a peach tree, and by an apple tree, and a cherry tree." Prisoner objected to this testimony. Overruled. Exception. A. L. Law, for the state: "I am a prisoner. While in jail the defendant told me that, if he was convicted, they would have to convict Henry Little." He declared that Monroe Johnston said...