State v. McClure

• Decision Date: 22 April 1914
• Citation: 81 S.E. 458,166 N.C. 321
• Parties: STATE v. MCCLURE.
• Court: North Carolina Supreme Court

81 S.E. 458

166 N.C. 321

STATE v. MCCLURE.

Supreme Court of North Carolina

April 22, 1914

Appeal from Superior Court, Guilford County; Shaw, Judge.

Jim McClure was convicted of murder in the first degree, and he appeals. Affirmed.

This is an indictment for murder. The prisoner, a negro boy, was found guilty of the murder in the first degree of R. L. Bain a deputy sheriff, and was sentenced to death, and appealed.

A charge held not erroneous in authorizing a conviction of murder in the first degree because the killing was done in pursuance to a fixed design.

The record shows evidence tending to establish the following facts:

Pomona Station is about three miles west of Greensboro, and Pomona Cotton Mills is about one-half mile west of Pomona Station both being on railroad and public road. Terra Cotta is about a quarter of a mile northwest of Pomona Mill. A street car line runs out west from Greensboro to a little car shed on a crossroad running north from Pomona Mill. This shed is located at end of car line in open field, several hundred yards north of Pomona Mill, and about one-half mile east of Terra Cotta. From it the crossroad runs south across the public road and railroad to Pomona Mill, and a path runs west down the bottom to Terra Cotta. On Saturday afternoon, August 2, 1913, a negro boy, Ernest Madkins, with a bunch of bananas, was going out from Greensboro to Terra Cotta on a street car, on which were several of the Pomona Mill boys state's witnesses. In course of trip Madkins dropped a banana, and one of the mill boys grabbed it. Madkins said "Mister, please give me my banana." The mill boy refused, and said he was going to keep it. Later on the trip the negro again asked for the banana, with the same result. On getting off the car at end of line, Madkins saw prisoner standing there with a cane, and told him of the banana incident. Thereupon the negroes began to demand the banana, and still the boys refused to give it up. Then the white boys and negroes began throwing some rocks, and during this the deceased came running down the hill across the field from Pomona Mill, calling, "Halt!" The negroes started to run down the bottom toward Terra Cotta. The deceased then shot. Running on, he caught Madkins, but prisoner ran on off. Deceased and the mill boys, who had joined with him, took Madkins on back to company's store across railroad at mill. Nothing was known of prisoner until half an hour or more later, when he and another negro were seen passing down the public road from Terra Cotta toward Pomona. In the meantime the prisoner had procured a gun and had bought some shells, saying he was going to shoot birds. When seen, they had passed the crossroad that turns off to the mill and store where deceased and mill boys were. The negroes, prisoner having a shotgun, went on down the road several hundred yards, met some other negroes in the road, talked awhile, and then turned and started back up the road toward Terra Cotta. Meanwhile deceased had deputized men, giving Wright a pistol and keeping his own, and started out to meet prisoner and "arrest him." The men, led by deceased and Wright, and without a warrant, went out crossroad north across railroad to public road, and, turning down east, went down it till they met the prisoner coming up road and going towards his home at Terra Cotta. Deceased walked up within three or four feet of the prisoner, and asked if he was at car line in the riot. He denied it, refused to be arrested, asked who the officer was, drew his gun on deceased, stepped back from crowd, threatening to shoot, and refusing to be arrested. He then took down his gun and walked straight up the road toward home, without looking back. Deceased and those with him stood still in the road till prisoner had gone from 30 to 40 yards away, and then deceased suggested arresting him for drawing his gun. The deceased and his party then advanced behind prisoner for some distance, gaining on him. Deceased covered him with his pistol, and called, "Halt!" from three to six times, all the time walking on behind prisoner, who did not even look around. Just as prisoner was nearly past the crossroad leading into mill, and was going on toward home and away from the mill and the crowd, deceased said, "I have told you my last time." Deceased had prisoner covered when he said this. Prisoner then looked back for first time; then as he raised his gun he snapped it; the deceased shot at prisoner; prisoner shot once, killing deceased, turned and ran as hard as he could with crowd chasing, firing 10 to 25 or 30 shots after him.

Holly A. McNairy, introduced by the state, testified as follows: "I am a merchant at Terra Cotta and know the prisoner. I remember the date the deceased was killed, and I saw the prisoner on that afternoon before the deceased was killed, probably between one-half and three-quarters of an hour before. It was about 6 o'clock, something near 6 o'clock, when he came in the store and wanted 10 cents worth of shells. I sold them to him; he looked like he had been running; was hot. I asked him if he was going to shoot anybody, and he said no, he was going to shoot some birds. He had a gun with him, a double-barrel gun, I think. I didn't see him after he went out of the store."

N. J. Wright testified for the state as follows: "I live at Pomona Mills, and remember the occasion on which the deceased was shot. I was with him at the time, but was not on the street car that afternoon. I was on my way to the mill and walked up to where the deceased and several others were standing at the company store. The deceased had a negro under arrest and asked me to go with him up the road where those negroes were. I told him I would go, so I walked up the road to meet them. The prisoner is the only one I know. When the prisoner had met the other darkies down the road, they stopped and talked a little bit, and the prisoner and two others came down the road. The prisoner was carrying his gun. When we met the negroes, the deceased said, 'Were you down at the depot, at the car shed in that riot?' The prisoner said, 'No, by God, I wasn't.' He then asked what we were going to do about it. After that he stepped back and cocked his gun, and asked which one of us was the God damned officer that was shooting at the car shed. The deceased then said, 'I am the officer; here is my badge.' The prisoner then drew his gun and said, 'You are the damned mar I want.' He didn't put his gun to his shoulder. It was pointed toward the deceased. The deceased said he didn't want any trouble at all, but just wanted to get the straight of it, wanted to quiet it down. The prisoner then asked what we were going to do about it, turned around, let his gun down, didn't let the hammers down, and started on up the road. Repeated several times that there was no God damned son of a bitch in the county who could arrest him. That he would kill any officer that undertook it. He went on up the road, one darky with him, something like 50 or 75 yards. As he was going up the road, the deceased said to me, 'Let's arrest that negro for drawing that gun.' The deceased then told me to come with him, and we walked on up the road, gaining on the prisoner. The deceased hollowed, 'Halt!' three or four times. Then the deceased said, 'I have told you my last time to halt.' The prisoner turned around then with his gun and said, 'I can shoot as damned hard as you can,' and snapped his gun at the deceased. The deceased fired at him, and then the prisoner shot and killed the deceased. The prisoner then turned and started to run."

There was other evidence to the same effect, introduced by the state.

The prisoner introduced no evidence.

The only exceptions relied on are to the charge of his honor and to the refusal to give certain special instructions.

S. Clay Williams, of Greensboro, for appellant.

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

ALLEN J.

We have examined the charge of his honor with great care, and find no error in the charge given, or in the refusal of the special instructions, nor do we concur in the position that the evidence and contentions of the state were unduly emphasized.

The criticism of the charge that "the burden would be upon the defendant to show facts and circumstances in mitigation," and "If the defendant, as heretofore explained by the court, has offered evidence which mitigates the offense," is supported by State v. Castle, 133 N.C. 769, 46 S.E. 1, upon the ground that such a charge excludes the idea that the prisoner may rely on evidence offered by the state in mitigation, but the court did not let the matter rest here, and, on the contrary, distinctly charged the jury that in mitigating or excusing the offense the prisoner "has a right to rely upon evidence offered by the state." His honor charged the jury that they must be satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation before they could convict of murder in the first degree.

He then further charged that: "Deliberation means to think about, to revolve over in one's mind, and if a person thinks about the performance of an act and determines in his mind to do that act, he had deliberated upon the act gentlemen. Premeditation means to think...