Charlie
McLamb was convicted for assault with a deadly weapon with
intent to kill in a secret manner, and he appeals.
No
error.
Prentice
Jackson, a white man lived in Piney Grove township, Sampson
county, N. C., about 2 1/2 miles from defendant, a negro man.
On June 29, 1932, about 10 o'clock at night, the
prosecuting witness describes what occurred as follows
"Had a tub of water drawn, put it in the kitchen, shut
the door and sat down to take a bath, while my wife was
fixing the bed. I was washing this leg, and heard something
click like a gun, and I looked in the window and saw a double
barrel shot gun, and I aimed to holler or run. I looked and
saw Charlie McLamb, and he had a gun ready to shoot and I
hollered, but don't know anything else. I knew Charlie
McLamb and saw him. It was he that shot me, and that is the
truth. *** When I looked at the window, he had the gun ready
to shoot, and I didn't have time to do anything, or even
say a word. There are four panes of glass to the sash, four
below and four above. He shot me through the right hand pane
from me, and through his left hand pane. It was about ten and
one-half feet from where I was sitting to the window. I
didn't have time to do anything, and after the gun fired
I didn't know anything. *** I do not know how many shot
hit me, forty-eight shot could be found in the house. I have
two on each side of my hair, some on my shoulder and some
went through here, and some in my nose and part of them
buried in my skull. At that time I lost one eye on the count
of the shooting. I went to two Hospitals and stayed about a
week. The gun shot that went through my neck, affected my
voice, and it strains me to talk. I am talking as loud as I
can. I am partly deaf in this ear, so many shot in here that
I cannot open my mouth but half as much as I used to. I
cannot eat my food, except a little crumb at the time."
On
April 3, 1932, Jackson had trouble with defendant. Jackson
with his brother was going to Faison for a doctor. As they
got into the Faison and Clinton road, Jackson's brother
was making a curve, and a car driven by defendant dashed by
and if it had run into Jackson and his brother it would most
likely have killed them, as indicated by the evidence
the car driven by defendant after it passed "was
zig-zagging across the road." "After we got by Mr
Ross Ireland's he (defendant) stopped and got out, he had
a crank in his hand. There was another fellow that he had met
up with. He motioned us to stop, and we stopped and Charlie
McLamb wanted to know what in the God Dam Hell we blowed on
him for. I said 'We wanted to go and get some medicine
for a sick baby.' He said 'Its a God dam lie, if you
wanted to go by you could get by.' I said 'No, we
could not have gone by when you did not get out of the
road.' He said, 'You S. O. B. that aint so.' When
he called me that I stepped out of the car and said 'Who
are you cursing,' and he said 'Where is my God dam
hammer,' and he reached in the car and got the hammer,
and my brother stepped out, and he then said 'Where is my
God dam gun.' He got his gun and the other fellows were
scared and he tried to get the other fellow to come and beat
hell out of us. We could not do anything, and I got into the
car and Charlie kicked my brother and started to pull my
brother out of the car, and I said 'Don't you pull
him out of the car,' and he said 'I want to kill you
anyhow--I will get you.' I went to Mr. Sam Howard's,
the police at Faison, and indicted him Monday morning. His
trial was put off until the 5th of July, and I was shot on
the 29th of June."
S. K.
Bradshaw lived about 100 yards from Prentice Jackson who
lived on his place, and went to his house that night after
the shooting. He testified, in part:
"We
picked him up and put him on the bed. Prentice said
'Mr. June, I am shot, I know who did it.' He died
away, and when he came to he said 'Charlie McLamb.'
I went after a trained nurse. He said 'I saw him
through that window, I saw his gold teeth.' He seemed
to be in his right mind for a few minutes, and then would
faint away. Later on in the night when Prentice revived he
said that McLamb shot him, and to tell his father to go get
him. *** I could tell where Prentice Jackson was sitting by
the sign of the blood and by the chair in the door.
Prentice Jackson has shown me once, and you could tell by
the signs of blood where he was sitting. The tub was down
there when he was washing. The lamp on the table was
burning when I got there. It was pulled out from the side
of the room so it gave light to see him bathe. It threw
light as far beyond the window as here to the Court House
door.
"Q.
Have you, since the shooting, sat with the lamp on the
table or dresser where it was, and knew where Prentice
Jackson said he was sitting, and did anybody come up to
that window to see whether or not you could identify them,
and if so, what time of day or night was it? Ans.: Night
time, after dark. ***
"Q.
Relate to the jury, whether or not you could tell a man
coming up to the window? Ans.: Yes, sir, you could tell a
man. I had several to go up to the window. They had a gun.
Dave Oats and my little boy, and you could tell who he was.
He had a gun, but was not tall enough for you to look like
you ought to.
"Q.
Did you try it with a colored person? Ans.: Yes, sir, had a
colored person at window. You could tell better through the
window pane than the one that was shot out. Seems that the
glass reflected upon the gun and upon the person."
The
defendant excepted and assigned error as to the evidence.
There are several exceptions and assignments of error as to
this kind of evidence introduced on the part of the state.
The
witness testified further: "I examined Mr. Jackson that
night to see how he was shot up. I didn't count the shot
then, but there were, when the Doctor counted, thirty some
odd shot, and they were Number Four shot. His eye was shot
out, and the sight of his eye was running out, and he was
bleeding mighty bad all over."
This
testimony was corroborated by several witnesses who went to
Jackson's house shortly after the shooting.
Sheriff
W. H. Moore testified, in part, that he went to
defendant's home that night. "I found Charlie McLamb
in the house. I found his shoes, they had sand sticking
around the soles, as if they had been worn out in the dew.
The next morning I went back there for further examination. I
looked around the place to see what I could find. Back of
Prentice Jackson's house, in a squash patch, behind the
squash bush, I found the print of two knees, and the print of
the gun stock where it had stood between the knees. I went to
Charlie McLamb's and got the gun and looked at the end of
it, and it had grass stains on the end of the stock where it
had been sitting on the ground, and there were grit sticking
on the end of the stock. I took the gun to Prentice
Jackson's where the imprint of the gun was between the
two knees, and it was exactly the same print. Q. Did you
examine the grit on the gun stock with the grit on the ground
as you found there? Ans.: Yes, sir, I was careful not to
knock that sand off until I got back there. The grit on the
gun compared with the sand of the ground at the squash
bush."
Prentice
Jackson was corroborated by Sheriff Moore as to his telling
him how he was shot and by the defendant. The defendant did
not go upon the stand, but set up an alibi that, at the time
that it is alleged that Prentice Jackson was shot, he (the
defendant) was in Faison. Charlie McLamb lives some 8 or 9
miles west of Faison. Mr. Jackson lives 9 miles west of
Faison.
In
rebuttal the evidence on the part of the state, Ben Cooper
testified, in part: "I live at Faison and run a barbecue
stand and fish market. I know Charlie McLamb. On the night of
June 29th, I saw Charlie McLamb. I was taking in my stuff
from the outside, when Charlie McLamb came by headed out of
town in the direction that Prentice Jackson lives; I looked
up at the train come in, I figured it was 8:30 or 8:35."
Roscoe
Cooper testified, in part: "I live in Faison, and am the
son of B. R. Cooper, and was working with him on the night of
June 29th. I saw Charlie McLamb that night. He was going
along the road that leads out of the Town towards where
Prentice Jackson lives. He could have turned to the right,
and gone home, or he could have turned to the left. It was
about 9:00 o'clock. I cannot say how many were with
him."
Arnold
Vann testified, in part: "I live about three-fourths
mile from Town of Faison, and know Charlie McLamb and know
his automobile when I see it. I was coming from Faison about
8:40 and just as I turned into the yard to go to my house,
Charlie's ford passed, and I walked to the back door. The
train came, and it was about 8:40. I know where Prentice
Jackson lives. Charlie was going toward Prentice
Jackson's house at the time he passed me."
The
bill of indictment charges: (1) Defendant unlawfully,
willfully, maliciously, and feloniously, and in a secret
manner, did assault, beat, and wound one Prentice Jackson
with a deadly weapon, a shotgun, with felonious intent to
kill, inflicting serious injuries; (2) and assault with a
deadly weapon, a shotgun, with intent to kill. The two counts
are in the usual legal form.
The
verdict of the jury was as follows: "Do say upon oath
that the said Charlie McLamb is guilty of an assault with a
deadly weapon with intent to kill in a secret manner, one
Prentice Jackson."
The
judgment of the court below was as follows: "It is
therefore considered by the Court that the said Charlie
McLamb shall be confined, on the first count in the...
