State v. Lambert

• Decision Date: 16 January 1929
• Docket Number: 580.
• Citation: 146 S.E. 139,196 N.C. 524
• Parties: STATE v. LAMBERT et al.
• Court: North Carolina Supreme Court

146 S.E. 139

196 N.C. 524

STATE v. LAMBERT et al.

No. 580.

Supreme Court of North Carolina

January 16, 1929

Appeal from Superior Court, Swain County; Walter E. Moore, Judge.

All who are present, either actually or constructively, at the place of a crime, and are either aiding, abetting, assisting or advising its commission, or are present for such purpose, are principles in the crime.

Herman Lambert and another were convicted of breaking and entering otherwise than by burglarious breaking, and they appeal. No error.

Herman Lambert, Albert Allison, and Henry McCoy were indicted for breaking and entering the dwelling house of Mose Owl and stealing certain personal property therefrom. There were also counts in the bill of indictment for larceny and receiving stolen goods knowing they had been stolen. They pleaded not guilty, and all three were convicted of breaking and entering otherwise than by burglarious breaking and duly sentenced. The defendant Henry McCoy did not appeal.

Mose Owl testified the goods were stolen on Thursday evening, May 31, 1928, and found on the following Monday morning, between 1 and 2 o'clock. He and his family left home about 6 o'clock Thursday evening to attend an entertainment and returned home that evening about 11 o'clock. There was missing from the house a 25-20 Winchester high-power gun, a box of shells, a sack of "Town-Cryer" flour, 50 pounds of sugar, in two 25-pound sacks, a dollar's worth of meat, a pair of scissors, some slippers, and a shawl. The property was worth about $50. Henry McCoy, the day the house was broken into, about 1 o'clock, stopped at Mose Owl's house for about 10 minutes and asked him if he was going to the entertainment. Mose Owl identified the gun; it was marked on the barrel. The other property--"All I say is that they are like mine."

Arnold Cooper testified that he was with the officer (Sutton) when they went to defendant Herman Lambert's house. They found 50 pounds of sugar, 25-pound sack of "Town-Cryer" flour; it had not been opened. It was found in the bed covered up. That defendant Herman Lambert said he had gotten out. The shawl was found about two weeks later. The cartridges were in defendant Albert Allison's pocket. The three defendants were all in Herman Lambert's house, a little cabin of one room. All three of the defendants were seen together on Sunday. In the house was found also a pair of pants and belt that belonged to witness. At the preliminary hearing, Tom Lambert, the father of Herman Lambert, told the court that Henry McCoy, the defendant, had something he wanted to say, and they told him to go ahead and he said he wanted to say he would take all the blame on himself and that the other boys did not have anything to do with it. He found the scissors and slippers in a duck sack coat defendant Herman Lambert said was his; found the shawl about two weeks afterwards near Tom Lambert's place. With the shawl he found a coat, a couple of shirts, and a pair of shoes that had been taken from him. Herman Lambert stated none of the stuff belonged to him; he also said that Albert Allison had been wearing the coat.

Mrs Mose Owl testified: "I am the wife of Mose Owl. I know that shawl; it is mine. We missed it the night the other stuff was taken from our house."

A. J Sutton, a deputy sheriff, was with Arnold Cooper in the searching party. They knocked, and it was about 30 minutes before they were let in. "There were two beds in the house and they were pretty close together, and this one (Herman) Lambert was sleeping in looked like some one else was in it. He said that was where he slept and that nobody else was in the bed. The table was up against it and the boys kept looking and searching and come to the bed and throwed the cover back and pulled out two twenty-five pounds of sugar, and a sack of flour and a piece of meat and some pants and one stuff and another was wound up in the cover and I asked him if that was his and he said it wasn't, he didn't know anything about it. We went ahead and got that and hunted all around everywhere in the house. That gun was under the bed where the other boys were sleeping. I never saw them pull that out. There was a flashlight lying on the table and I said 'Whose is this?' and nobody owned it. (Herman) Lambert said it wasn't his and then the scissors and slippers, nobody claimed them."

Tom Lambert was defendant Herman Lambert's father. When near his house, defendant Henry McCoy tried to escape; also defendant Albert Allison. Herman Lambert after the stuff was found, said it was not his stuff and he knew nothing about it. The witness further testified: "The stuff was bound to have been put in after he got out of bed. It was rolled up in the cover, and the sacks were wet and it had been put in the house that night. I don't remember in whose pocket I found the shells. Mr. Cooper and Mr. Sherill (the other members of the searching party) pulled the gun out from the bed, where McCoy and Allison were sleeping. The sacks were kinder wet. It had been brought in there that evening, it had been raining that evening and my idea is that some time late that evening or that night they brought it."

Herman Lambert and the other defendants testified in their own behalf. Herman Lambert set up an alibi and denied breaking into Mose Owl's house. He contended that Henry McCoy brought the stuff to his house. "He said 'If you are going home I have some stuff I want to take up there; I am going out to the mountains and I have a sack of flour and some meat, I will put it in for board while I am at your house.' *** I waked up there was somebody hollering in the yard and I called and asked them what they wanted and they told me; and I put on my clothes and told them to come back to the other door and come in and while I was putting on my clothes Henry (McCoy) jumped up, I never noticed what he was doing; and they come in and found this stuff in my bed and I knew nothing about it. I knew it was in the room but not in the bed, I never put it in the bed. He said he was going towards Cooper Creek Bald. He said he was going to put up and make some liquor out there, said he wanted to get some money to leave here on. I didn't know that it was stolen stuff. *** That evening Henry McCoy left me at the forks of the road and went home and Albert Allison went home with him and ate supper at their house and I ate supper at my daddy's and got the key for the house. I first saw this stuff when he had it about a quarter of a mile from Morgan Bradley's house setting by the side of the road where a Pine tree had been cut. I first found out where it was that night; that was Sunday night after it was stolen. My wife wasn't at home, she was at her mother's. She was there on the night of the 31st. I don't know who put those scissors in that coat pocket, I hadn't had that coat on since Friday; Allison had been wearing the coat."

Albert Allison testified that he was 23 years old. He set up an alibi and denied breaking into Mose Owl's house. "Henry McCoy said he had some stuff that he was going to the mountains next week. At that time I heard that Arnold Cooper's house was broken into. That night he said he had some stuff, some flour and meat, to put in on his board while he stayed at Herman Lambert's. We got the stuff and we went down the road, Henry gave me some Winchester cartridges and I carried the Winchester and something in a sack, and we set it by the door. All this stuff was in sacks. There was three or four sacks. Me, Herman and Henry carried one. The stuff was hid a little piece from Morgan Bradley's under some Pine brush in the woods. It wasn't but a little piece off the road. We got to Herman Lambert's house about ten o'clock. Henry said he was going to make liquor with this stuff. He said he was going toward Cooper's Creek Bald. When we went to the house we set the stuff down next to the door and got in bed; Henry and me got in the bed together and Herman Lambert got in the other bed, and when I waked up Henry waked me getting out of the bed, and he grabbed the stuff and rolled it up in the bed. I saw him do that, that was while Herman was putting on his clothes; then he came back and got the Winchester, it was sitting by the door, and put it under the bed. He didn't try to leave but he come back and got back in the bed with me after he put the Winchester under the bed. When I got up I told the officers that I didn't have anything to do with it. Herman Lambert said the stuff didn't belong to him and that he didn't know anything about it. In regard to where they found the scissors I heard him tell them that he hadn't been wearing that coat. I had been wearing the coat for a day or so. At the time I helped carry the stuff I didn't know it had been stolen. When Henry told me he had the stuff hid he said he was going to the mountains to make liquor, to make a run of beer. After I found that it was stolen I never...