State v. Lee

• Decision Date: 25 February 1914
• Citation: 80 S.E. 977,166 N.C. 250
• Parties: STATE v. LEE.
• Court: North Carolina Supreme Court

80 S.E. 977

166 N.C. 250

STATE v. LEE.

Supreme Court of North Carolina

February 25, 1914

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

Wayland Lee was convicted of robbery, and he appeals. Reversed, and new trial granted.

Under the statute fixing the punishment for robbery at imprisonment for not less than four months nor more than ten years, where there is no aggravation, the punishment should approximate the lower limit, and when there is aggravation the highest degree should be inflicted.

The defendant was convicted of highway robbery. He is a one-armed negro boy 19 years of age. Frank Gilliam, the prosecutor also colored, testified that he was 17 years of age; that he never had any fuss with the defendant; that in June previous he was going along the public road to preaching at the schoolhouse; that when he passed James Bazemore's gate he saw William Taylor at the gate; that this was about 8 o'clock at night; that he passed Taylor without speaking and went about 60 yards further along the public road, when he saw the defendant standing near a cedar tree; that as he passed the defendant the latter said he was going to kill him, and, following him, repeated the remark several times that he turned around and asked him his name; that he had a pistol in his hand, not pointing at the witness, but down at his side, and he said, "If you don't give me your money, I am going to kill you"; that he gave him 11 cents that he had in his pocket, two nickels and a penny that the defendant had put the pistol in his pocket before the witness gave him the money; that he gave him the money because he was afraid he would take the pistol out and shoot him. The witness says he then went on to church at the schoolhouse; that he was there but a few moments before the defendant came in; that the defendant sat in the house about five minutes and then went out and sat at the door, where there was a large crowd. The witness says he did not get out a warrant till the Wednesday following; that Bazemore lives near the road and so does Mizzell; that where he was robbed was the open road, that there were some weeds on one side of the road as high as your head. The state rested.

The defendant testified that he lost his arm 6 years ago, and can only drive a wagon, which is his work; that he did not see Gilliam, the prosecuting witness, along the road, did not have a pistol, does not own one, did not hold Gilliam up nor rob him, and did not see him that night except at the schoolhouse; that he heard nothing about this charge until the following Saturday.

Matthew Bass and Gatling Freeman testified that they had worked in the woods with the defendant for a year, and that he did not have a pistol, and that they never saw him with a pistol at any time.

Henry Bass testified to the same effect.

David Outlaw testified that the defendant boarded at his house for a month and did not have a pistol.

J. J Alston testified that he had known the defendant for years and that his general character was good.

Bettie Gilliam testified that the defendant came to preaching soon after she got there with her father; that he went home with her; that he did not have a pistol and never saw him with one. She further testified that she and the defendant are engaged to be married, and that she knows Frank Gilliam.

George Gilliam testified that he saw the defendant that night; that he has known him for years and never saw him with a pistol. Mary Gilliam testified to the same effect.

James Bazemore testified that he knows the defendant; that when he was going home he met him about 6 or 7 o'clock in company with William Taylor, at his gate; that they wanted to buy a watermelon, and he sold it, but they could not pay him because he could not change a $10 bill for the defendant; that he lives about 75 yards from the road and about 300 yards from the schoolhouse where the preaching took place that night; that Mizzell lives across the road from him; that Ward lives down the road about 200 yards; that the next house is about a quarter of a mile, and several other houses are along the road for about a mile. The defendant closed.

In his address to the jury, defendant's counsel was contending that the whole situation negatived the contention of the state, and that the prosecutor, Frank Gilliam, must have been animated by some bad motive and should not be believed. He said: "What is that motive? You have heard the solicitor ask Bettie Gilliam if she and defendant were not engaged. She said they were. That question was doubtless prompted by the prosecutor who sits by the solicitor. Why is Frank Gilliam concerning himself about whom the defendant is engaged to? Does that account for his malice, if he has any? Is he concerned about Bettie Gilliam's engagement?" Counsel also insinuated that, if the truth were known, the fact that Wayland Lee had captured Bettie has inspired this indictment by the prosecuting witness. The solicitor did not object to this line of argument, and in his reply referred at length to this insinuation of the defendant's counsel, saying that there was no evidence to support it and that not a witness had ever testified that Frank Gilliam had ever spoken to Bettie Gilliam.

The court in charging the jury, among other things, said: "The defendant contends that Frank Gilliam is animated by malice and hatred of the defendant because the defendant has become engaged to Bettie Gilliam and that he was in love with her himself. I charge you that there was no evidence of this. No witness has sworn to it or testified to it except Mr. Winston, and he was not sworn, and you must not pay any attention to anything that he has said about this." To this the defendant excepted.

Verdict of guilty, judgment, and appeal.

Winston & Matthews, of Windsor, for appellant.

T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK C.J.

The evidence for the state was in many aspects very improbable and the defendant's counsel was justified in arguing to the jury that they should infer that the prosecution was based upon some bad motive. Considering that both the prosecuting witness and the defendant were young and that the latter was engaged to Bettie Gilliam, it was within the province of counsel to argue that jealousy was the motive, and that the jury should draw that...