Appeal
from Superior Court, Rockingham County; John H. Clement
Judge.
Odell
Oakley was convicted of first-degree burglary, and he
appeals.
New
trial.
The
defendant was tried on the following bill of indictment:
"State
of North Carolina, Rockingham County.
Superior
Court, January Term, 1936.
The
Jurors for the State upon their oath present, That Odell
Oakley, late of the County of Rockingham, on the 29th day of
December, 1935, about the hour of 12 in the night of the same
day, with force and arms, at and in the county aforesaid, the
dwelling house of one B. F. Sprinkle, there situate, and then
and there actually occupied by one B. F. Sprinkle
feloniously and burglariously did break and enter, with
intent, the goods and chattels of the said B. F. Sprinkle in
the said dwelling house then and there being, then and there
feloniously and burglariously to steal, take and carry away
against the peace and dignity of the State. Gwyn
Solicitor."
The
jury returned a verdict: "That the said Odell Oakley is
guilty of burglary in the first degree in manner and form as
charged in the bill of indictment." Judgment of death
was pronounced.
B. F.
Sprinkle, a witness for the state, testified, in part:
"I live in Reidsville on Main Street, at the corner of
Harrison Street. On the 29th of December, 1935 my house was
broken into. There is a screen door and a locked door. The
knob was twisted off of the inside door which was locked.
Then the door was forced open. The screen door opens on the
outside and the other door opens from the inside. On the
night of the 29th Mrs. Sprinkle and I were occupying the
house alone. The breaking was done about 2 o'clock in the
morning. I was sound asleep. Mrs. Sprinkle and I occupy twin
beds. She sleeps with her head one way and I sleep with mine
another. My head was next to the inside door which comes out
of the sun parlor into our bed room. I was awakened by my
wife's calling me. She said somebody was in our room and
to get the gun. I heard him go out. When I awakened, it was
snowing. It was snowing when the breaking occurred. In my
opinion, when I woke up the snow was three inches deep. I
called the police and Mr. Saunders and another gentleman came
up there. I suppose it was fifteen or twenty minutes before
Mr. Saunders came. He went right out and went on the track.
No instrument was used in the breaking. The door was a little
bit small for the frame and the lock didn't catch in too
deep. The door knob was twisted off and the door shoved. The
lock never did give but the shove forced it open. The last
thing Mrs. Sprinkle did before she went to bed was to lock
that door. We went to bed at 9 or 10 o'clock and had been
in bed four or
five hours. I heard somebody go out of the door but I never
did see who it was and don't know whether it was a man or
woman. Nothing at all was taken. There were tracks on the
doorstep but I didn't measure them and I never went out
of the house. The tracks on the steps looked like men's
tracks. I pointed them out to Mr. Saunders."
Mrs. B.
F. Sprinkle testified, in part: "When the noise woke me,
I saw a man standing right inside the bed room right at Mr.
Sprinkle's head. I took a good look at him. He was
apparently just standing up in the room. It was a man, had on
a man's coat. It looked as if he were wearing a dark
brown suit. I called Mr. Sprinkle three or four times before
I could wake him and then he ran out the same door he came
in, through the sun parlor. Mr. Sprinkle called the police
and Mr. Saunders came up. Mr. Saunders tracked the man. There
was snow on the ground when I woke up. I saw Odell Oakley at
the preliminary trial. That night I described to Mr. Saunders
the man's appearance. Odell Oakley looks very much like
the man I saw. In my opinion, he is the man. This breaking
was Sunday morning. At the time I first saw Odell Oakley, I
did not tell the officers that in my opinion he was the man.
I only said he was a tall slender boy. * * * At the
preliminary trial I did not attempt to identify this boy as
the man who was in my home."
J. T.
Saunders testified, in part:
"I
am the officer who was on duty in the city of Reidsville
the night of December 29th. It started snowing that night
about 11 o'clock. By 2 o'clock the snow was about
three inches deep. About 2 o'clock Mr. Sprinkle called
me and another officer, Mr. Cobb, drove me up there. Mr.
Cobb did not stay. I found a broken door but didn't
take time to examine it. Mr. and Mrs. Sprinkle pointed out
to me tracks on the south side of the house on the step.
Those tracks were a man's tracks and I followed them
through town to Joe Martin's home, for about a mile and
a half. I saw one other track on Lindsey Street going in
the opposite direction. I saw the person who made that
track. It was John Sommers, a white boy, and I spoke to
him. Those two tracks did not get mixed up. They crossed,
one man coming down on one side the street and the other
the other, but they crossed and then they went on the
opposite side the street.
The
Court: They made by whom? Ans: John Sommers and Odell Oakley.
Mr.
Garrett: I object.
The
Court: Well, you could not say. Don't consider,
gentlemen, that he said the tracks made by Sommers and
Oakley. You tracked the defendant to whose house? Ans: Joe
Martin's.
Mr.
Garrett: You said the defendant.
The
Court: I didn't mean to say the defendant; he followed a
set of tracks to whose house? Ans: Joe Martin's."
To the
foregoing questions and comments by his honor, the defendant
objected, as being an expression of opinion-exception.
The
witness continued: "When I got to Joe Martin's house
there were no other tracks leading in to the house and there
were no tracks leading away from the house. I saw no other
tracks of any kind. This track went up in front of the house
and went to the back and came back and up the front steps and
right up the steps on the inside, leading into this room. I
tracked the snow into the house. I followed the tracks right
around the side of the house to the back and then he came
back to the front, up the front steps on to the porch and
went inside and up the stairway and into the first door after
he got to the top of the stairway. * * * The tracks in the
snow compared exactly with the defendant's shoes. There
was no place where I followed those tracks from Mr
Sprinkle's to the place where I found this man, where the
tracks led off and away from any snow. I did not measure the
tracks which I saw with this boy's shoes. I am just
guessing. I did not ask for Joe Martin or try to arrest him.
I didn't go there to arrest Joe Martin. I wanted to find
the shoes that...
