State v. Kelly, 292
| Citation | 243 N.C. 177,90 S.E.2d 241 |
| Decision Date | 30 November 1955 |
| Docket Number | No. 292,292 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE, v. James R. KELLY. |
John S. Peacock and Edmundson & Edmundson, Goldsboro, for defendant, appellant.
William B. Rodman, Jr., Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
The defendant offered no evidence. The only assignment of error, except formal ones, is to the failure of the court to sustain the motion for judgment of nonsuit.
Robert Robinson, 27 years old, was a soldier stationed at Fort Bragg. He had been married about 4 years to Brookie Overton. They lived at Mt. Olive in the home of her mother and minor brothers.
After Robert Robinson's murder the defendant Kelly told John B. Edwards, a member of the State Bureau of Investigation assisting the sheriff in the investigation of the killing, that he had had sexual intercourse with Brookie Overton before her marriage, and had continued such relationship with her since her marriage to Robinson, spending nights with her in hotels and motels in Wilson and Goldsboro.
Since Brookie Overton's marriage, Kelly, in spite of the protests of her mother, continued to come to her home, in the absence of her husband, to take her off with him. About a month before Robinson's death Kelly came to the home for Brookie Overton, and when her mother said he shouldn't be going with Brookie, and shouldn't come to her home, and her brother asked him to leave, he offered to fight her brother.
Joyce Hobbs, who pleaded guilty to the charge of murdering Robert Robinson, and the defendant Kelly, were associates in taking women out in cars, and the irresistible inference from the evidence is that their purpose was immorality. About a week before Robinson's murder Adolphus Wall saw Joyce Hobbs and Kelly at his taxi stand in Mt. Olive. Wall saw two guns in the automobile Kelly was driving. In response to his question why they had the guns, one of them, he could not remember which, replied: 'We have got them to kill damned men with.'
Elizabeth Rivenbark, a sister of Brookie Robinson, saw Kelly come to her mother's house twice, and ask for Brookie Robinson. On one occasion she saw Kelly there shake his fist at Robinson. She testified: 'Hobbs and Kelly had been toting guns around in the car for I had seen them there.'
About a week before Robinson was killed, Florence Worrell heard Kelly say: 'If he didn't stop following him, he was going to fix him to stop.'
The night before Robinson's murder Joyce Hobbs, driving an automobile, passed a filling station where Robinson was, and said to Robinson: 'Come on you S.O.B. we are going after Brookie.' Kelly was not in the car. Robinson and his brother-inlaw got in a car, and followed. Down the road hobbs stopped, reached in the back of the car, got out a gun, pointed it at Robinson, and said: :Come on mother, we are ready for you. ' Kelly told Edwards, the S.B.I.Agent, that this same night Hobbs carried him and Brookie Robinson out in the country from Mt. Olive behind a church, and that Hobbs returned and picked them up. Hobbs left them there to go to town to pick up a girl.
On the night of the murder, and just before it occurred, Hobbs, Kelly and Brookie Robinson came in an automobile to Mrs. Betty Wilson's yard. Brookie Robinson got out to stay a few minutes. Kelly said to Hobbs: 'You better get up, if you are going to keep that date with that girl in town.' They left in the car. After Robinson's murder Kelly returned, picked up Brookie Robinson, and carried her to Mt. Olive.
About 7:00 or 7:30 p. m. on 5 October 1954, Bobbie Overton, a 20-year old brother of Brookie Robinson, and William Starnes got in Robert Robinson's car. Robinson drove around a block in the Town of Mt. Olive three times, saw Joyce Hobbs' car, and started following it. Kelly was driving the Hobbs' car, and in it were Joyce Hobbs and Eunice and Hazel Rivenbark. Kelly drove across the railroad track, came down the other side of the street, circled the block twice, and parked in front of Glenn Martin's Drug Store. The girls got out, went in the drug store, came back, and got in the car. Kelly drove off, and Robinson followed. Kelly stopped at a filling station for gas, and Robinson stopped across the street. Kelly drove off on the Goldsboro road, Robinson following. About a quarter of a mile down the road Kelly turned off on a side road, went about 100 feet, and stopped. Robinson stopped his car 25 or 30 feet behind. Starnes testified the hard surfaced part of the road was blocked by the Hobbs car, when its door opened for Hobbs to get out. Bobbie Overton testified: 'I do mean to insinuate that the road was blocked.' The road had narrow shoulders. Joyce Hobbs with a shotgun jumped out of his car, and ran back to the Robinson car. Robinson was under the steering wheel. Hobbs stuck the shotgun in the window of Robinson's car, saying: 'G.. d... it, you have been following me far enough.' Robinson threw his arms up, and said: 'Don't point that gun at me.' The gun was pointed at Robinson's chest. Hobbs fired. The load of shot went into his left lung, his heart, and broke three ribs. Robinson died about five minutes after he was shot. Hobbs, after firing the gun, unbreached it, blew it out, and carried it back to his car.
Immediately after the murder Kelly told Lt. H. P. Davis, a police officer in Mt. Olive:
In passing upon a motion for judgment of nonsuit in a criminal prosecution, the evidence must be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable inference which may fairly be drawn from the evidence. State v. Ritter, 239 N.C. 89, 79 S.E.2d 164. If there is more than a scintilla of competent evidence to support the allegations in the warrant or bill of indictment, it is the court's duty to submit the case to the jury. State v. Davenport, 227 N.C. 475, 493, 42 S.E.2d 686; State v. Rogers, 227 N.C. 67, 40 S.E.2d 472.
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