State v. Lane
| Decision Date | 29 April 1914 |
| Docket Number | 433. |
| Parties | STATE v. LANE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Moore County; Adams, Judge.
Grady Lane was convicted of murder, and appeals. Affirmed.
This is an indictment for the murder of George McCain on October 28 1912. It was alleged by the state that the prisoner knew that the deceased had a large amount of money on his person, and that he lured him into a swamp, about 300 or 400 yards from the station at Aberdeen on the Seaboard Air Line Railway, for the ostensible purpose of gambling with him, but for the real purpose of robbery. The two were seen entering the swamp about 4:30 or 5 o'clock p. m., on the day of the homicide, and shortly thereafter two reports of a gun were heard, and deceased's body was found that night about 8 o'clock, with a fatal wound in the breast and one in the head; the side of his face having been blown off. The prisoner was seen about 6 o'clock, going in the direction of the home of his father, Joab Lane, where he lived, and tracks of the prisoner were also found leading from the place of the homicide in the direction of that house. The prisoner had promised Julia Jones, who had picked cotton on that day for his father, to return in the afternoon and weigh the cotton for her, and he did not do so, according to her statement, though he told the officer, Dan McDonald, that he had returned to his home for that purpose. There was evidence tending to show a close resemblance between shells in the prisoner's gun and two empty shells, one found near the body of the deceased, and the other at a place in a field where prisoner had shot a rabbit on that day. When the body was found, the pockets of the deceased, where the money was had been turned inside out, all the money was gone, the playing cards had been torn up, and a receipt and railroad pass, with the name of the deceased on it, and a flat pint-bottle, containing about a teaspoonful of Scuppernong wine, were found near the body; the prisoner having been seen with such a bottle full of wine on the same day, just before the homicide was committed, having marks on it corresponding with those on the bottle that was found near the body. The prisoner made contradictory statements as to his whereabouts that day, and after being arrested, escaped from the officers, fled, and was not recaptured for several days. He made a confession in jail to one Judson Jackson that he had killed the deceased, in a manner indicating premeditation and deliberation, and robbed him of the money, $141. He then went down the creek and to his home, where he hid the money under a pile of cotton. The prisoner denied that he had killed the deceased, or had made any confession to Jackson. He also introduced evidence to show an alibi and to explain the circumstances, evidence of which was offered by the state. Under the evidence and charge of the court, the jury returned a verdict of guilty of murder in the first degree. Judgment was entered upon the verdict, and the prisoner appealed.
Evidence that a third person was seen going with a gun in the direction of the place where deceased was shot is inadmissible, there being nothing directly connecting him with the corpus delicti, or showing his guilt, if any, to be inconsistent with that of defendant.
U. L. Spence and Clegg & Clegg, all of Carthage, and J. T. Brittain, of Ashboro, for appellant.
Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.
WALKER J. (after stating the facts as above).
This case was very carefully tried in the court below, and the charge of the court is to be commended for its very clear and comprehensive statement of the law, as applicable to every phase of the evidence, and for an equally lucid and logical analysis of the evidence itself, so that the issues were presented to the jury fairly and fully for both parties. There was undoubtedly evidence of the prisoner's guilt, and this was explained to the jury in such a way that the prisoner, at least, has no ground for complaint. If there is any error therein, and we do not think there is, it was committed in favor of the prisoner, and not against him. We will consider the exceptions in the order of their statement in the record.
Exception 1. When the court admitted the testimony of Dr. McLeod that the empty shell was "found at the body," and, upon afterwards discovering that the witness was speaking from hearsay, ruled it out, the error if any, based upon the misapprehension of counsel and the court as to the nature of the testimony, was harmless, for the court distinctly and emphatically excluded it and cautioned the jury not to consider it. Cowles v. Lovin, 135 N.C. 488, 47 S.E. 610; Livingston v. Dunlap, 99 N.C. 268, 6 S.E. 200; Blalock v. Clark, 137 N.C. 140, 49 S.E. 88; State v. Keen, 95 N.C. 646; and more especially State v. Flemming, 130 N.C. 688, 41 S.E. 549; State v. Ellsworth, 130 N.C. 690, 41 S.E. 548. We cannot assume that the jury disobeyed the court's instruction and considered the evidence, but we must presume the contrary, unless prejudice appears or is shown by the appellant in some way. The burden is on him to prove it. Rush v. Steamboat Co., 67 N.C. 47; Thomas v. Alexander, 19 N.C. 385.
Exceptions 2 and 3. The testimony of E. Hillman, that the man he saw coming towards Joab Lane's house looked like the defendant, was competent in connection with the other evidence of identity. Similar rulings have been sustained by the following authorities: 17 Cyc. 132; State v. Lytle, 117 N.C. 799, 23 S.E. 476; State v. Costner, 127 N.C. 566, 37 S.E. 326, 80 Am. St. Rep. 809; and more recently by State v. Carmon, 145 N.C. 481, 59 S.E. 657, where the impression of the witness as to identity, based upon knowledge of the person, was less pronounced. But the evidence was afterwards excluded, and this rendered it harmless, even if at first it was erroneously admitted, and the same reason applies to exceptions 4, 5, 8, and 9, for the testimony, as to the examination and comparison of the three empty shells, was withdrawn, with a proper caution to the jury in regard thereto; the gun and shells having been handed to the jurors for their inspection, by consent of the parties. Even then, the court instructed the jury not to consider their own inspection of them, unless they found that they had been properly identified. The rights of the prisoner were fully guarded at every point.
Exception 6. The objection to the testimony of Dan Chambers came entirely too late. It was discretionary with the judge whether he would strike it out at that stage of the case, after it had been admitted without objection. State v. Elfer, 85 N.C. 585. But the probative force of the testimony was so slight that the prisoner could not have been prejudiced thereby. If it tended to prove anything, it was that the prisoner knew the deceased had much money, or was in the habit of carrying "a big wad of money," and this was a relevant circumstance in view of the strong trend of the evidence that robbery was his purpose when he went into the swamp on the afternoon of the homicide.
Exception 7. The question put to the witness David Knight, who was deputy sheriff, as to finding keys at the place of the homicide belonging to deceased, was not answered, nor was the nature of the evidence which was proposed to be elicited, disclosed by the prisoner. We cannot therefore see that there was error. In re Smith's Will, 163 N.C. 464, 79 S.E. 977; State v. Rhyne, 109 N.C. 794, 13 S.E. 943; Sumner v. Candler, 92 N.C. 634; Knight v. Killebrew, 86 N.C. 400. We must know what the answer would have been, before we can pass upon the competency or relevancy of the evidence. Besides, as it now appears to us, the evidence was irrelevant and harmless, if we are to judge by the question.
Exceptions 10, 11, 12, and 13. These exceptions were taken to the refusal of the court to admit evidence of statements made by another person that he had killed McCain, and that another person was seen going in the direction of the swamp with a gun. It was expressly decided in State v. Boon, 80 N.C. 461, citing State v. Duncan, 28 N.C. 236 State v. May, 15 N.C. 328, and State v. White, 68 N.C. 158, that, on a trial for murder, evidence of the declarations of a third party that he killed the deceased are inadmissible as hearsay and as not tending to disprove the guilt of the prisoner. In State v. Davis, 77 N.C. 483, it was held, that "evidence that a third party had malice towards the deceased, a motive to take his life, and an opportunity to do so, and had made threats against him, and that some time before deceased was...
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