State v. Mull
| Decision Date | 12 December 1928 |
| Docket Number | 481. |
| Parties | STATE v. MULL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; T. B. Finley, Judge.
Russell Mull was convicted of manslaughter, and he appeals. New trial ordered.
In manslaughter case, weight, to be attached to circumstance of defendants' flight is for jury to determine in connection with other facts in case.
The defendants, Russell and Edgar Mull, were charged with the murder of Tony Lafevers. The solicitor did not ask for a verdict for murder in the first degree, but for a conviction of murder in the second degree or manslaughter.
The evidence tended to show that on the night of June 26, 1926 Gerald Mull had an ice cream supper in an open field near Morganton. The defendants, who are brothers, and the deceased were present. There was a conflict in the testimony of the witnesses for the state and for the defendants. The deceased and the defendant Edgar Mull engaged in a fight, and the deceased was knocked down by said defendant, who was unarmed. Thereupon the deceased drew a pistol and fired at the defendant Edgar Mull, inflicting a severe wound. The other defendant, Russell Mull, hearing the commotion, ran to the scene of the conflict and shot Tony Lafevers and killed him. It is impossible to harmonize the testimony with respect to how the fight started and who was the aggressor. The two defendants, however, left the place of the killing and went down on the river, where they remained in hiding for about 10 days, and then they departed for a western state, where they remained until about the 4th of January, 1928, when they returned to Burke county and voluntarily surrendered to the sheriff.
Edgar Mull was acquitted, but Russell Mull was convicted and sentenced to a term of not less than three nor more than five years in the state's prison, and he appealed.
Avery & Patton, Spainhour & Mull, and Ervin & Ervin, all of Morganton, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.
Is a defendant, who flees after committing a felony, entitled to explain the circumstances of his flight and the inducements thereto?
A witness for the state was asked if he knew where the defendants were from June 26, 1926, to January 1, 1928, and he testified that they were not in Morganton after that night until the first of the year 1928. Thereafter, the defendant Edgar Mull, while being examined as a witness, was asked the following question:
"What, if anything, induced you to remain in hiding down on the river and to leave the State?"
Objection was made by the state, and the answer excluded. The record discloses that if permitted to answer, the witness would have said:
The same testimony was...
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State v. Beal
... ... community was a circumstance worthy of consideration by the ... jury, especially in view of the fact that he was regarded as ... the guiding genius of the strike, and, as the state contends, ... had counseled violence. State v. Mull, 196 N.C. 351, ... 145 S.E. 677; State v. Lawrence, 196 N.C. 562, 146 ... S.E. 395; State v. Stewart, 189 N.C. 340, at page ... 347, 127 S.E. 260; State v. Malonee, 154 N.C. 200, ... 69 S.E. 786. And while the absence of the defendant Harrison ... from the witness stand, as a matter of ... ...
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State v. Payne
...189 N.C. 340, 127 S.E. 260; State v. Steele, 190 N.C. 506, 130 S.E. 308; State v. Adams, 191 N.C. 526, 132 S.E. 281; State v. Mull, 196 N.C. 351, 145 S.E. 677; v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Lawrence, supra; State v. Tate, 161 N.C. 280, 286, 76 S.E. 713, 715. In State v. Tate......
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