State v. Minton

• Decision Date: 08 October 1947
• Docket Number: No. 219.,219.
• Court: North Carolina Supreme Court
• Parties: STATE . v. MINTON.

228 N.C. 15

44 S.E.2d 346

STATE .

v.MINTON.

No. 219.

Supreme Court of North Carolina.

Oct. 8, 1947.

Appeal from Superior Court, Wilkes County; H. Hoyle Sink, Judge.

Cling Minton was convicted of manslaughter, and he appeals.

Error and new trial.

Harry McMullan, Atty. Gen., T. W. Bru-ton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Trivette, Holshouser & Mitchell, of North Wilkesboro, T. R. Bryan, of Wilkesboro, and Wm. H. McElwee, of North Wilkesboro, for defendant-appellant.

SEAWELL, Justice.

The defendant, Cling Minton, was tried on an indictment charging him with the murder of Atwell Parsons, was convicted of manslaughter and from a sentence of 12 to 15 years in State's Prison appealed to this Court, assigning some 80 items of error on the trial, only a few of which it is found necessary to discuss.

The defendant's place of business, where the shooting took place, included a skating rink, a couple of slot machines and a beer counter. The upstairs was used as a residence. The State's evidence is briefly to the effect that at the time of the killing everything was peaceful, and suggests little or no motive for the shooting. Parsons, it was said, was standing about six feet in front of Minton, the defendant, unarmed, with his arms hanging down when defendant shot him in the belly. He died of this wound shortly afterward in the hospital.

The defendant's testimony, however, tended to show that it was after 12 o'clock and Mrs. Minton had asked all those in the store to leave so that they might close up for the night because her baby was sick upstairs. Defendant's evidence also tends to show that the defendant made a like request, and repeated it, which request was presently unheeded.

Claude Minton testified that he and Carroll Lowe entered the place after June Ferguson, Atwell Parsons, Roland Walsh, Raymond Parsons, Fred Bumgarner, and Johnny Land had already gotten there. Minton told his assistant, Dock Parsons, to sell no more beer. Mrs. Minton came back into the store room and said, "You all go ahead, we have got to close up." "Atwell Parsons, the deceased, spoke up and said, 'By G--, he was not going no place until he had another round of beers apiece.' " Witness got up and motioned to the Lowe boy to go. "I started, got to the end of the counter. Johnny Land run over and grabbed me and cemmenced hitting me in the head--knocking me backwards, I was walking backward to keep the licks off me. Roland Walsh, he run in, said, 'G-- damn him, let me get hold of him.'" They were knocking and dragging the witness Minton, had him on his knees when he heard the shot fired. Of the defendant, witness stated: "He (meaning Minton) told him to leave, told them twice that I know of."

Carroll Lowe, who had accompanied Claude Minton to the place, testified that when Mrs. Minton spoke of the sick child, Cling Minton said, "Boys, drink your beer, we have got to close up." Claude got up and started putting on his coat; walked by the stove and Johnny Land jumped up and hit him, Roland Walsh joining in the fight. Atwell Parsons came out of the booth by jumping over the top and ran at Cling Minton, --"Made a dive for him with hands extended." He heard Atwell say, "S. O. B." about the time he hit the floor and ran at Cling. He ran up in about two feet of Minton while the latter was backing up. Minton then shot Atwell. Atwell had run from the rear to the front, about 20 feet, toward Minton.

Mrs. Minton testified that when Claude Minton started to leave Johnny Land sprang upon him, followed by Roland Walsh, and both were hitting and dragging him, beating him almost down to his knees. Atwell Parsons sprang out of his booth, lunging toward Minton and saying, "G-- damn you." Minton went backing away and Parsons continued to advance upon him, cursing himuntil Minton had got into the corner when the pistol shot was fired.

The defendant testified, amongst other things that when the fight upon Claude Minton got under way Atwell Parsons, the deceased, was coming at him out of the booth and that he (Minton) backed up. Parsons said, "You G-- damn s. o. b., I've got what it takes for you." And when he fired the shot the gun barrel was right up against Parsons. "My gun was lying there at the cash register on the counter. I was backing up into the corner of the counter and the wall." "He had come out of the booth 'on his muscles"', bounced over the top of the table onto the front, and came rushing." "I shot the deceased to keep him from killing me." The defendant testified that when he shot Parsons the latter was within two feet of him.

In this situation the defendant contends that the trial judge committed two errors, both prejudicial to consideration by the jury of his right of self defence: The exclusion of recent uncommunicated threats which, if submitted, would have strengthened his plea by giving an objective corroboration of his peril, and his testimony relating thereto; and failure to charge clearly the law of self defence in the case of non felonious assault on a person in his own home or on his own premises.

The appellant contends that the outwardly crazy and motiveless occurrences of the...