State v. Myers, 658.

Citation200 S.E. 443,214 N.C. 652
Decision Date04 January 1939
Docket NumberNo. 658.,658.
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE. v. MYERS.

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.

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 of this testimony, as it was given, the Court entered the instruction: Gentlemen of the jury do not consider this evidence against the defendant Myers but consider it only against the defendant Clark.

The State also offered evidence tending to show that on Wednesday evening preceding the shooting on Sunday morning the codefendant Clark 'phoned "a girl friend" in Winston-Salem, and told her to come to Greensboro on the bus, and that Clark met her on the nine o'clock bus in Greensboro; and further on Saturday evening preceding the morning of the shooting, Clark 'phoned the "girl friend" that he would not come to Winston-Salem that night but would come the following Sunday.

The Court likewise instructed the jury not to consider this evidence against the appellant Myers and to consider it only against the codefendant Clark.

Subsequently the State offered as a witness one Jean Helms who testified that she lived in Winston-Salem and that she received the 'phone messages from Clark on...

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  • State v. Myers
    • United States
    • United States State Supreme Court of North Carolina
    • January 4, 1939
    ...200 S.E. 443 214 N.C. 652 STATE v. MYERS. No. 658.Supreme Court of North CarolinaJanuary 4, 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 o......

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