State v. Murphy

• Decision Date: 11 April 1945
• Docket Number: 365
• Parties: STATE v. MURPHY et al.
• Court: North Carolina Supreme Court

33 S.E.2d 588

225 N.C. 115

STATE v. MURPHY et al.

No. 365

Supreme Court of North Carolina

April 11, 1945

Criminal prosecution for assault and highway robbery.

The bill of indictment charges in substance that on 8 October 1944, 'on or near a public highway' in Lenoir County North Carolina, Patrick Sutton and John Buster Murphy did unlawfully, wilfully and feloniously assault and put in fear Wiley Bell, and did feloniously, unlawfully and wilfully and forcibly take, steal and carry away from the person of Wiley Bell eighty two dollars in money--his property.

In the trial court the evidence offered, taken in light most favorable to the State, tends to show: That on Sunday afternoon of 8 October, 1944, prosecuting witness, Wiley Bell, while riding his bicycle on Davis Street in the city of Kinston, North Carolina, had his pocketbook containing four twenty-dollar bills and two one-dollar bills in his shirt pocket, and he was in his shirt sleeves; that his bicycle there ran into one of the defendants, Sutton, to whom Bell apologized, and who apparently accepted the apology, but the other defendant Murphy 'commenced raising a lot of sand', and Bell asked him 'What are you going to do about it?'; that thereupon that defendant grabbed Bell by the neck and knocked him down, and defendant Sutton went down on him, or 'was leaning over him' as one witness expressed it; that when he, Sutton, 'got up' or 'got up off of Wiley he said 'I have got the gun"', and after he got up, he kicked Bell more than once; that then the defendants walked off leaving Bell lying in the street in an unconscious condition; that after they left there defendant Sutton had the pistol in his hand that then two women came and picked Bell up and carried him to a nearby porch, where about ten minutes later he regained consciousness; that then he got on his bicycle and started home, and on the way discovered there was no money in his pocketbook, and no trace of it has been found.

On the other hand, defendants as witnesses for themselves deny taking the money, and offered evidence tending to show that while they struck Wiley Bell, and had him down, they did so in disarming him when he threatened them, and drew the gun on them.

For the State there was evidence tending to show that Wiley Bell did not own, and had no pistol at the time.

There was no evidence that any one saw either of defendants with the pocketbook or saw either of them take the money.

Verdict: Guilty.

Judgment as to each defendant: Confinement in the State's Prison, assigned to work under the supervision of the State Highway and Public Works Commission for a period of not less than 4 nor more than 6 years.

Defendants appeal to the Supreme Court and assign error.

Harry McMullen, Atty. Gen., and Hughes J. Rhodes and Ralph Moody, Asst. Attys. Gen., for the State.

J. A. Jones and Albert W. Cowper, both of Kinston, for defendants appellants.

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