State v. Myers

• Citation: 200 S.E. 443,214 N.C. 652
• Decision Date: 04 January 1939
• Docket Number: 658.
• Parties: STATE v. MYERS.
• Court: North Carolina Supreme Court

200 S.E. 443

214 N.C. 652

STATE
v.
MYERS.

No. 658.

Supreme Court of North Carolina

January 4, 1939

Appeal from Superior Court, Guilford County; E. C. Bivens, Judge.

Homer Myers and Jerry Clark were convicted of murder in the second degree and Homer Myers appeals.

New trial.

In murder prosecution of two defendants, where court in admitting certain testimony instructed jury not to consider evidence as against accused and to consider it only against codefendant, and at close of the evidence instructed jury that such evidence might be used against accused if a conspiracy existed, instruction was error, since accused was entitled to be informed that such evidence would be admitted against him so as to enable him to conduct his defense in accord therewith.

Geo. A. Younce and Adam Younce, both of Greensboro, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and Robert H. Wettach, Asst. Attys. Gen., for the State.

SCHENCK, Justice.

The appellant, Homer Myers, was tried with a codefendant, Jerry Clark, upon a bill of indictment charging them with the murder of one O. D. (Dock) Bovender. The jury returned a verdict of guilty of murder in the second degree as to each of the defendants. From judgment of imprisonment in Central Prison, the defendant Myers appealed, assigning errors. The codefendant Clark did not perfect an appeal.

The State offered evidence tending to show that the fatal shot that killed the deceased was fired from a pistol in the hands of Clark while on the porch of the residence of the deceased, in an attempt to rob the deceased in the early morning of Sunday, June 5, 1938; and that during the struggle between the deceased and Clark the appellant Myers was in an automobile a short distance off waiting to speed Clark away when he had completed the robbery.

The State offered, as a witness, Mrs. Bovender, wife of the deceased, who testified that in the late afternoon of Saturday, June 4th, 1938, preceding the early morning of the Sunday on which her husband was shot, Clark, the codefendant of the appellant, came to the home of her and the deceased on Walker Avenue and inquired as to whether the deceased lived there, stating that he had some business with him. The State also offered several witnesses who lived on Walker Avenue, who testified that the codefendant Clark, on the Saturday afternoon preceding the morning of the shooting, came to their homes and inquired where Bovender, the deceased, lived.

As to all...