State v. Maynard

• Decision Date: 10 January 1958
• Docket Number: No. 651,651
• Citation: 101 S.E.2d 340,247 N.C. 462
• Parties: STATE, v. Amos MAYNARD and Mamie Luster.
• Court: North Carolina Supreme Court

Page 340

101 S.E.2d 340

247 N.C. 462

STATE, v. Amos MAYNARD and Mamie Luster.

No. 651

Supreme Court of North Carolina.

Jan. 10, 1958.

Norman & Reid, Pilot Mountain, for defendants, appellants.

George B. Patton, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

PARKER, Justice.

The State's evidence presents these facts:

Johnny Liss Luster and Irene Luster are husband and wife. Mamie Luster is the stepmother of Johnny Liss Luster, and her husband, Sherman Luster, was serving a road sentence on 7 February 1957. Amos Maynard married Mamie Luster's sister. Monroe Willard was 16 years old, cannot read and write, and had been living at Mamie Luster's home about three weeks prior to 7 February 1957. He had been convicted twice for breaking and entering. Mamie Luster lived on the Pilot MountainWestfield Road about four miles from the home of John Allen Branch.

On the morning of 7 February 1957 all five defendants went to Mt. Airy in Amos Maynard's automobile. Upon their arrival in Mt. Airy, Amos Maynard and Johnny Liss Luster went to a bank there, and tried, without success, to borrow some money on Amos Maynard's automobile. They then went to one or two used car lots, and attempted to sell Maynard's automobile, but failed to do so. Around noon they went to Pilot Mountain, where an effort was made, that failed, to sell Maynard's automobile to the Pontiac place. About three o'clock in the afternoon all five defendants left Pilot Mountain in Maynard's automobile to return to Mamie Luster's home. While on their way Amos Maynard said he wanted a drink of liquor, and asked Mamie Luster if she did. She said she didn't have but $20, which she gave to Johnny Liss Luster. They drove to John Allen Branch's home. Johnny Liss Luster got out, went in the house, and retruned with a quart of liquor in a half-gallon can and $17 in change, which money he gave to Mamie Luster. They drove on to Mamie Luster's home.

They drank some of the liquor. All five of them were sitting in the heater room, and Mamie Luster, Johnny Liss Luster and Amos Maynard were talking about leaving, and going to Kentucky, and wanting some money. Monroe Willard said he knew a man, Sam Shinault, who had some money, that they had no money to go to Kentucky, rob him. Irene Luster said, 'better leave him alone, he will shoot you.' Mamie Luster said she knew a man, who carried a roll of money, John Allen Branch, the man who got her $20 bill. Irene Luster said that would be better, because there are not so many houses around. Prior to this time, Amos Maynard and Mamie Luster told Monroe Willard they would give him a rifle if he would rob old man Branch. Manroe Willard said he didn't have a gun. Mamie Luster said he could use the rifle. Amos Maynard told him he could use his pistol, but it wasn't there. Johnny Liss Luster told Monroe Willard not to use the pistol, he might miss: it would be better to use the shotgun. Johnny Liss Luster, Amos Maynard and Mamie Luster told Monroe Willard if he was going to shoot like they said, not to let him get the first shot. Amos Maynard, Johnny Liss Luster and Mamie Luster told Monroe Willard to shoot. Mamie Luster told Willard to kill Branch. Amos Maynard and Mamie Luster told Monroe Willard to wear something other than what he had on. Amos Maynard told him to pull his shirt off, so he would have a clean shirt to put on, after he got the money. He pulled off his shirt. Mamie Luster gave him a shirt which he put on, after his face was blacked. Irene Luster had some blacking on the fireboard. Monroe Willard's face was blacked in the heater room.

Monroe Willard with a shotgun and Johnny Liss Luster went out, and got in Johnny Liss Luster's car. Amos Maynard came out, got in his car, and pushed Johnny Liss Luster's car off to get it started. He drove his car to Hunter's Service Station. Amos Maynard followed to put gas in Johnny Liss Luster's car. It was then about 6:00 o'clock p. m. At the Service Station Johnny Liss Luster had Monroe Willard to look off, because his face was blacked.

Johnny Liss Luster and Monroe Willard left the Service Station in Luster's car with. Luster driving, and went to a road, which goes from the highway to the home of John Allen Branch. The Branch home is about three miles from Hunter's Service Station. When they reached the road, Monroe Willard got out of the car, and went to the Branch home. As Willard got out of the car, Johnny Liss Luster gave him five shells, he told him to use a shell like that, No.6. A dog began barking, and John Allen Branch came out on his porch. Monroe Willard raised his shotgun, and shot him. Willard went back to the highway, and got in Johnny Liss Luster's car. He told Luster he had shot Mr. Branch. Luster asked him if he got the money, and he replied no.

Mrs. John Allen Branch testified that on this night about 7:00 p. m. she, her husband, and two grandchildren were sitting in their home looking at television, that the dogs barked, and her husband got up, turned on the porch light, and went out, a gun fired. John Allen Branch did not speak, he came back into the room, and fell dead on the floor. Mrs. Branch and her grandchildren remained alone in the home all night.

After Willard shot and killed John Allen Branch, he and Johnny Liss Luster returned to Mamie Luster's home. Mamie Luster, Irene Luster and Amos Maynard were there. Willard told them he had shot and killed John Allen Branch. Mamie Luster asked Willard if he got any money. He replied he did not. Mamie Luster tried to get Willard and Johnny Liss Luster to go back, and kill Mrs. Branch, and get the money. They refused. Mamie Luster said if Mrs. Branch was killed, there would be nobody to talk. They had Willard to pull off his shoes, and put them in the heater. Later an officer took the shoes out of the stove at Mamie Luster's home. Mamie Luster told Johnny Liss Luster to take the shotgun to the woods, and hide it under a log.

The defendants have filed a joint brief, in which they contend four questions are presented for decision on their appeal.

First, they group twenty-nine assignments of error, which they contend show that the trial court overly restricted the defendants' examination of witnesses, particularly in the light of the latitudeafforded the State.

A study of the Record shows that the trial court did not overly restrict the examination or cross-examination of witnesses by the defendants, but on the contrary extended great latitude to the defendants in such examinations. Many of the questions referred to in these assignments of error, the answers to which the court excluded upon the State's objections, were repetitious or incompetent. Exceptions to the exclusion of testimony which is mere repetition cannot be sustained. State v. Wall, 218 N.C. 566, 11 S.E.2d 880.

M. G. Crawford, a State agent for the State Bureau of Investigation, testified for the State on direct examination as to what Monroe Willard told him in the presence of Amos Maynard, Mamie Luster, Irene Luster and Johnny Liss Luster as to the plan to rob and kill John Allen Branch, and as to his killing him. On cross-examination counsel for Amos Maynard asked M. G. Crawford several questions as follows: (1) 'How many different statements has Monroe Willard made to you how many different versions of this fantasy?'; (2) 'And he told you and gave you different versions of it every time, did he not?'; (3) 'He told different or made different statements about it from time to time, did he not?'; (4) 'How many different statements did you hear him make?' The court sustained the State's objections to these questions, and the defendants assign this as error. However, the trial court told the cross-examining cousel that he could ask M. G. Crawford what Monroe Willard told him, and that it was for the jury to decide as to whether his statements were different. Whereupon, M. G. Crawford in response to counsel's question stated what Monroe Willard told him on four different occasions about the commission of the crime. After this counsel then asked Crawford, 'so that is four different versions?' The court sustained the State's objection to this question. These assignments of error are without merit.

On direct examination by the State Crawford was asked no question as to what, if anything, Mamie Luster said to him; nor did he testify as to anything she told him. She assigns as error the refusal of the court over the State's objection to permit Crawford to testify as to what, if anything, she told him. Such question was incompetent as tending to draw out a selfserving declaration. If it became so later in corroboration of Mamie Luster's testimony, it was not again offered. State v. McCanless, 182 N.C. 843, 109 S.E. 62.

Amos Maynard assigns as error the refusal of the trial court over the State's objection to permit Crawford to answer a question to this effect: Did Monroe Willard tell you that Amos Maynard said to the defendants, you fellows ought not to go around and bother that old man? The Record fails to show what Crawford would have testified to if permitted to answer. Therefore, it is impossible for us to know whether the ruling was prejudicial or not. State v. Poolos, 241 N.C. 382, 85 S.E.2d 342. The court sustained the State's objections to several other questions asked by defendants' counsel, but what the answer would have been is not in the Record.

The court, upon the State's objections, refused to require Monroe Willard to answer on cross-examination some questions as to his religious beliefs. According to what this Court said in State v. Beal, 199 N.C. 278, 154 S.E. 604, prejudicial error is not made to appear.

To discuss all of these assignments of error grouped under the first question separately would unduly lengthen this opinion, and serve no useful purpose. All of them have been considered, and none is sufficient to show prejudicial error that would justify a new trial. The defendants were allowed by the...