State v. Kelly

• Decision Date: 03 January 1940
• Docket Number: 726.
• Parties: STATE v. KELLY et al.
• Court: North Carolina Supreme Court

6 S.E.2d 533

216 N.C. 627

STATE v. KELLY et al.

No. 726.

Supreme Court of North Carolina

January 3, 1940

The appealing defendants and one George Otho Smith were indicted on the following bill of indictment: "The jurors for the State upon their oath present, that Roy Kelly, George Otho Smith, Wade Hanford and Ralph Hanford, late of the County of Alamance, on the 7th day of December in the year of our Lord one thousand nine hundred and thirty-eight, with force and arms, at and in the County aforesaid, while engaged in the perpetration of the crime of store breaking and larceny wilfully, unlawfully, feloniously and with premeditation and deliberation, and of their malice aforethought, did kill and murder one M. P. Robertson, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State. W. H. Murdock, Solicitor."

The record discloses that about 2 o'clock a. m., on the morning of December 7, 1938, there was an attempted and partial robbery of the Sprinkle Service Station, in Burlington, N C., near the underpass. The building is of metal type construction, with glass front and sides. It is 38 feet paved from the edge of Trade Street to the Sprinkle Service Station. All the witnesses who testified were State's witnesses. Defendants introduced no evidence.

(1) Roy Kelly. Evidence in part against him: A voluntary confession made to Sergeant T. J. Davis. He stated: "I am going to get it off my chest and tell you about it and the way I tell it is the only way it can prove out in Court." "He said on the night of December 6th that he, Wade Hanford and George Smith and Mary Fitts and Myra Buckner and Ralph Hanford rode from the Green Top Inn into Burlington and they went to the show, but I don't remember whether he said he and Wade went to the show, anyway he said they got together on Worth Street in Burlington and went back to the Green Top Inn where they were to meet Roy Huffman at 12:00 midnight and Roy had not got there. Right in there he said George and Ralph went away and they were to come back and he said George and Ralph came back. George Smith and Ralph Hanford at a little past 12:00 and Roy Huffman had not shown up so he got George to carry him to the Wagon Wheel about a mile and a half from the Green Top Inn to see if he could locate Roy Huffman, which they did. They went in George Smith's car. He said they found the Pontiac and that he went in the cabin and found Roy Huffman and Helen Holder and he asked Roy if he had forgotten what they were supposed to do that night and he said No, he had overslept and on the way out he got his scarf and overcoat out of his bag and went back to the Green Top Inn, and in a few minutes Roy Huffman came and the five left in the two cars going to Burlington to rob this gas station. He did not mention the name of the gas station. He said he and Wade and Ralph and Roy Huffman had been planning to rob this station for two or three days. They came in near the Buick salesroom and stopped there to talk it over. He said they used two cars, 1937 Pontiac he was driving and 1935 Ford, Smith was driving. That they stopped and talked it over and the tools they were to break in with were in Kelly's car, the Pontiac, and they taken them out and put them in Smith's car and Roy Huffman and Ralph Hanford and Wade Hanford got in Smith's car and drove down to the place and Smith stopped on a side street near the service station and he stopped about thirty-five feet back of Smith's car. The seat in Smith's car had been loosened some time in the early evening to enable them to get the safe of the gas station in the car. He said that they knew they could not get the door shut after getting the safe in there and he was to stay back of Smith's car in case the officers got after them and he was to block the officers' in case the officers drove up. He was to stay between Smith's car and the officers so the officers could not get to Smith's car, knowing the door would have to be open on Smith's car. He said they drove down there and saw Roy Huffman and Wade and Ralph get out of the car and go to the station. In a short time Roy Huffman came back to his car with some oil and anti-freeze and put it in his car and he saw one of the Hanford boys go back to George's car and put some package in there and return in the direction of the gas station. Immediately after that he said he heard the shooting and George Smith started his car and turned around in the street and drove away and he backed up into the side street and waited for a second to see if any of the rest were coming and they did not and he drove on down Main Street in Burlington. Drove back by the station and saw a man lying there with an officer's cap, and after that he went back to the Green Top Inn and saw George Smith in the act of turning around and asked him what had happened and he told him, 'You know as much about it as I do', and they went back to Hanford's home and found Wade and Ralph and they went back and parked on the side road to try to decide what they would do with Helen Holder. Said he finally decided to go get her and he brought her back there and they all talked about what had happened and the shooting and all, and decided to separate and not be seen together, but he said he asked Wade to go with him. Wade told him no, he was going to Haw River to Minnie Goodman's, where he could establish an iron-clad alibi, she would say he had been there all night and he had not seen them since, and late that evening he carried the Holder girl back to Greensboro. He said that when the shooting started Huffman fell. One of the Hanford boys said that, I don't remember which one, and that they dropped down there and after the shooting was over they ran out and went home. He said he had a .45 automatic and that Wade Hanford had a .32 special Smith & Wesson pistol. I think he said he had two, but I won't be positive about that. He said he didn't see any arms on the rest of them. He said that he was an escaped prisoner and escaped with Roy Huffman, to Richmond, Va., and was brought back from Richmond. He didn't say he saw them go into the filling station. He said they went to the filling station and returned there with the oil, Huffman bringing some oil and some anti-freeze to his car and one of the Hanford boys carrying some to the Smith car. *** From the things he told me about it I can tell you where it was parked so far as I know. I would say it was about 50 or 60 yards from the station."

The Court below instructed the jury not to consider the confession as evidence against any of the other defendants but only against Roy Kelly. This testimony was corroborated by George Smith which directly involved him as being a particeps criminis; also by Helen Holder.

C. A. Stanford testified, in part: "I am Chief of Police of the City of Burlington. I received an early morning call on December 7, 1938. I dressed and went to town. I went by the police station and went on to the service station. I stayed in the police station about one minute and went to the Sprinkle Service Station, which is located on Church and Trade Streets. When I arrived at the station I saw the bodies of Officer Vaughn and Sheriff Robertson. (Witness points out on the diagram the location of the bodies). Vaughn's body was about twenty-five feet from the door of the service station, and Robertson's body at about ten feet from the building. The door is about ten feet from the corner. I found near the body of Officer Vaughn a pistol and flash light. His flash light was turned on. I made an examination of the interior of the Sprinkle Service Station. In there I found the body of Roy Huffman. I did not know him at that time. It was lying between the desk and the safe. His feet were towards the desk and his head toward the safe. I found near his body a .45 automatic revolver. I have that gun with me. (Witness produces gun. Witness explains condition of the gun when he found it). When that gun shoots the last shell in it, it stays that way (illustrates with gun). When it ejects the last shell it stands with the ejector back. Roy Huffman was lying on his left side. The gun was right at his right side by the edge of his body. I searched the body of Roy Huffman. The coroner and myself searched him together. We got twelve .45 shells that had not been fired out of his pocket. We got a pocket book with some identification in it, but it was not Roy Huffman's pocket book. I cannot recall the name on the identification card. We found one cartridge in the desk drawer. There was a hole in the desk drawer. That was a wooden desk drawer with heavy wooden handles. It was shot through the handle into the desk and made a dent in the side of the drawer and it was in there. It had not gone through. There was a gallon can of anti-freeze on the desk. It was on the corner of the desk near the door where the gallon can was sitting. The can had a hole shot through it. It appeared to have gone from the inside of the building and towards Church Street. I found one bullet near the stove on the floor. It was a .45 type. I found five empty shells out of the .45 in the service station. They were scattered. Some were behind the oil. They have some oil cans sitting near the wall and some were behind that. We picked them up in different places in there. I found four .32 cartridges that had not been fired under the desk on the floor, right under the leg of the desk near the door. They had not been fired."

Wade Hanford made a voluntary statement as follows: (The Court instructs the jury that this statement alleged to have been made by Wade Hanford may be considered by the jury as evidence against him, and not as evidence against any of the other defendants.) "Statement of Wade Hanford of...