State v. Nicholson

• Decision Date: 25 April 1899
• Citation: State v. Nicholson, 124 N.C. 820, 32 S.E. 813 (N.C. 1899)
• Parties: STATE v. NICHOLSON.
• Court: North Carolina Supreme Court

32 S.E. 813

124 N.C. 820

STATE v. NICHOLSON.

Supreme Court of North Carolina

April 25, 1899

Appeal from superior court, Union county; Coble, Judge.

W. W Nicholson was convicted of robbery, and he appeals. Affirmed.

The offense is alleged to have been committed upon one H. A Lowery at or near a certain highway in Union county, to wit the Monroe and Wingate road. The state introduced Lowery as a witness, who testified that on the morning of December 22 1898, he was walking on the Carolina Central Railroad from Monroe to Wingate, a distance of about six miles, when he overtook the defendant about two and a half miles out of Monroe. That they exchanged greetings. Were old acquaintances, and were reared within three miles of each other, in Lancaster county, S. C. That they engaged in conversation concerning Lowery's relatives, whom the defendant had recently seen, and continued to walk on the railroad for some distance. That defendant inquired of the witness if he had a pistol. Witness stated that he had whereupon defendant asked to see it, and, after examining it, returned it to witness. After walking a mile or more further, the defendant stepped off about 35 yards from the track to a pile of cord wood, and called to witness, and asked him to come and take a drink of whisky. Defendant produced a flask of whisky, and the witness took one drink. Defendant again desired to see witness' pistol, and he handed it to him, and defendant proposed trading, but witness said he didn't wish to trade. Defendant said, "Lowery, this is my gun," and pointed the pistol at witness, who thought defendant was joking, and told defendant so. Defendant said, "No, by God, I ain't; hand up your watch." Witness handed him his watch, whereupon defendant demanded witness' money, and he handed him his pocketbook, which defendant opened, keeping the pistol at witness' breast while he counted the contents,--$9.95. Defendant then gripped the pistol as if to fire. Witness was about to run, and defendant shot him in the breast, and as he ran off the defendant shot him in the hip. This occurred about 50 or 75 yards from the Monroe and Wingate road, but witness did not know of said road, or that there was any public road near, at the time the alleged robbery was committed. Witness had not seen defendant in several years, and did not recognize him when they met on the railroad. Witness was just returning to his home from Arkansas. Defendant testified about meeting Lowery while walking on the railroad, and suggested that they go to the edge of the woods, and they agreed to do so, and Lowery proposed a game of cards, and defendant consented; that they sat down on the ground, about 35 yards from the track, by a pile of cord word, and played two games of "five up," which Lowery won; that Lowery then said, "Oh, I can beat you," and offered to put up his watch against the defendant's, which was agreed to, and defendant won; that Lowery then put up $5 against his watch, and defendant won again; that he then put up $4.95 and his pocketbook against $5, which was also won by the defendant, and then he proposed to put up his pistol against defendant's, and, after some discussion about the value of the pistols, the wager was accepted, and the pistols were placed on the ground; that defendant was about to win this game, when Lowery grabbed for his pistol, and thereupon defendant grabbed his own pistol, and also snatched Lowery's from him, and Lowery then jumped up, and grabbed a stick of cord wood, stating that he was going to have his pistol, and drew it over defendant, and thereupon defendant shot Lowery in the breast; that Lowery, turned to run, and defendant shot him again. Defendant also testified that he was not familiar with that part of the county, and did not know there was a public road near the scene of the shooting, and that there was woods on both sides of the railroad where the shooting occurred. There was other evidence by the state showing that the public highway was 40 or 50 yards from where the prosecuting witness alleged he was robbed, and that the place where the alleged robbery occurred was in plain view of the highway,--one person passing along the highway and seeing the defendant and the witness just before the occurrence took place; that the highway paralleled the railroad; that the defendant at once fled, and when captured, the same day of the robbery, denied his name, and made conflicting statements as to where he was from.

Defendant's counsel, in writing, asked the following instructions:

"(1) That to constitute the crime of robbery, as alleged in the indictment, it is necessary that the offense should be committed on a public highway, or that the person robbed should have been procured or enticed to leave the public highway by some threat or inducement offered by defendant for the purpose of securing an opportunity to commit the crime. (Refused.)

"(2) That a railroad is not a public highway, in the sense that a theft from a person walking thereon would constitute robbery, even if all the other attributes of that crime should be established. (Given.)

"(3) That even if the jury should find from the evidence that defendant obtained the property of Lowery in such a manner as would constitute a robbery, and that the act was committed within 50 or 75 yards of a public highway, yet if they find, further, that Lowery and defendant arrived at the scene of the alleged robbery by way of the railroad, or any way other than by the public highway, it would be the duty of the jury to acquit. (Refused.)

"(4) That unless the evidence as a whole convinces the jury beyond a reasonable doubt that defendant is guilty of the crime as alleged in the bill of indictment, the jury should acquit. (Given, after striking out the concluding words, 'should acquit,' and substituting therefor the words, 'cannot find the defendant guilty of robbery.')

"(5) That 'convinced beyond a reasonable doubt' means that every hypothesis founded upon reason, and consistent with the innocence of the defendant, has been excluded from the minds of the jury by the evidence. (Given.)

"(6) That it is not necessary that such reasonable doubt should exist in the minds of all or a majority of the jurors, but, if any of them entertain such doubt, the jury should give the defendant the benefit of it. (Not given, except as embraced in the charge.)

"(7) That, if the jury believe the evidence, they will render a verdict of not guilty. (Refused.)

"(8) That, in order to convict of the crime alleged, the jury would have to find that the parties were not gambling, and that the title to the property had not thereby passed from Lowery to defendant at the time the force was applied, and this beyond a reasonable doubt. (Not given, except as embraced in the charge.)"

The court instructed the jury, after reading notes of the evidence, as follows:

"(1) Defendant is charged with the crime of highway robbery. If the jury find from the evidence beyond a reasonable doubt, under the court's instructions, that, in or near the public highway, the

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