State v. Kendall

• Decision Date: 14 May 1907
• Citation: 57 S.E. 340,143 N.C. 659
• Parties: STATE v. KENDALL et al.
• Court: North Carolina Supreme Court

57 S.E. 340

143 N.C. 659

STATE v. KENDALL et al.

Supreme Court of North Carolina

May 14, 1907

Appeal from Superior Court, Caldwell County; Peebles, Judge.

Hampton Kendall and John Vickers were convicted of murder in the second degree, and they appeal. Affirmed.

In a criminal trial, the court may, in its discretion, permit a juror to question a witness.

There was testimony on the part of the state tending to show that deceased, Lawrence Nelson, disappeared from the knowledge and observation of his associates and neighbors in Lenoir, N. C where he then worked on September 25, 1906, and that on December 11th following his dead body was found in the woods 3 1/2 miles northeast of the town of Lenoir; that the body had a bullet hole which entered from the back of the neck and Dr. Kent, the expert examined, testified that the ball entered from behind, and at the point would have caused his death, if deceased had been alive when the wound was received. The body, when found, gave evidence of having been dead for a considerable time, and the left hand hip pocket had been turned wrong side out, and it was shown that he was in the habit of carrying his money in that pocket. It was proved that Nelson and the two prisoners had boarded together at the same house, Kendall and deceased staying in the same room, and it was shown that the three were together for several hours the morning of the day he disappeared; that deceased was a man who had ready money, and that the fact was known to both the prisoners, and that on the occasion of the homicide, as claimed by the state, Nelson had shown some money--two $20 gold pieces and some silver and greenbacks--and none was found on his person when the body was found, as stated.

Onah Grier, a witness for the state, testified, among other things, as follows: "I saw Kendall and Vickers at the depot that day, too; never saw them before. They were on the yard at the depot. I did not talk with them. Mag Lewis was with them, talked with them. Kendall gave her $5 to get Nelson out in the woods. Vickers said Nelson said something he was going to make him take back. Money Kendall gave Mag was greenback. Nelson and another boy were standing at the railroad about 50 yards from depot, and Kendall showed us where they were and we went up to them. Nelson said, 'Hello, sweetheart,' to Mag. He went with them up the railroad, and then to a negro restaurant. Nelson and the other man, I don't know who he was, went to the edge of Freedman. Mag and I bought corned beef crackers, chipped beef, and peanuts at the restaurant. We turned to the left from there, crossed a creek on a foot log, went on another path, and turned into an old road. Stopped outside of road, and Mag built a fire and roasted some peanuts. The time was about 5:30 o'clock in the evening. We went back into the road and the other boy came to us, and we all went back to the fire. Nelson cut some pine bushes for us to sit on. We ate peanuts and talked around the fire. We saw Kendall and Vickers coming a different way from the one we came. Kendall asked Nelson what he was doing there, and Nelson asked him what it was to him. Vickers called Nelson a son of a bitch. Vickers had a pistol, and I said to Mag, 'Let's run,' and we ran. The other man who was with Nelson ran. I heard a pistol fire about 100 yards away. It was about dusk. I never saw the man who ran first any more that night, nor any of the others. We ran down a little hill, don't know what direction. We rambled around all night until 4 o'clock next morning. Then went into a house and asked for something to eat, but did not get it, and then went to a negro restaurant and bought something to eat. *** We all talked together at the fire. Nelson showed us some money. There were two $20 gold pieces, some greenback, and some silver. There were two keys in his purse also. Don't know what he did with the money after showing it to us. He gave me 50 cents. I never saw him after that. Next saw Kendall and Vickers at the magistrate's trial." Defendants denied having anything to do with the killing or knowing anything about it; denied any acquaintance with Onah Grier and any and all facts testified to by her which tended to inculpate them and offered evidence tending to prove an alibi.

There was verdict of murder in the second degree, and from sentence on the verdict the defendants excepted and appealed.

Lawrence Wakefield, R. Z. Linney, Mark Squires, and Jones & Whisnant, for appellants.

Assistant Attorney General Clement and W. C. Newland, for the State.

HOKE, J. (after stating the case).

The verdict shows necessarily that the jury have rejected the evidence of the prisoners in denial of their guilt and tending to establish an alibi and have accepted the testimony of the state; and, this being true, defendants may well feel that they have been mercifully dealt with by the verdict, and that every reasonable doubt arising...