State v. Oxendine
| Decision Date | 20 April 1924 |
| Docket Number | 275. |
| Parties | STATE v. OXENDINE ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Robeson County.
Walter Oxendine and others were jointly convicted of manslaughter secret assault, and forcible trespass, and Walter Oxendine alone appeals. Judgment of conviction for forcible trespass affirmed, and otherwise reversed, and new trial granted.
The offense of "forcible trespass" is the unlawful invasion of the possession of another, he being present violently or with a strong hand.
The force involved in a trespass is sufficient to constitute it a "forcible trespass," if such that the party in possession must yield to avoid a breach of the peace.
Criminal prosecutions tried upon three indictments. All three of the cases having grown out of the same transactions and occurring at the same time and place, on motion of the solicitor, they were consolidated and tried before the same jury, the defendants not objecting.
(1) In the first bill Dock Wilkins, Clarence Oxendine, and Walter Oxendine were charged with a forcible entry and detainer upon the premises of one Donnie Locklear. On this bill, there was a general verdict of "guilty" as to all the defendants.
(2) In the second bill Walter Oxendine, Clarence Oxendine, and Dock Wilkins were charged with a secret assault upon Proctor Locklear. On this bill, there was a general verdict of "guilty" as to all the defendants.
(3) In the third bill Dock Wilkins, Walter Oxendine, Clarence Oxendine, and Proctor Locklear were charged with murdering one Robert Wilkins. On this bill there was a general verdict of "guilty of manslaughter" as to all the defendants.
All of the defendants were sentenced in each of the three cases--Walter Oxendine alone appeals. He was ordered to be confined in the common jail of Robeson county and assigned to work upon the public roads for a term of 4 years for manslaughter, 12 months for forcible trespass, and 12 months for secret assault, each of the last two sentences to begin at the expiration of the preceding one, making a total of 6 years on the three indictments. From these judgments, the defendant Walter Oxendine appeals, assigning errors.
Britt & Britt and McKinnon, Fuller & McKinnon, all of Lumberton, for appellant.
Attorney General Manning and Assistant Attorney General Nash, for the State.
A brief statement of the facts is necessary to a proper understanding of the legal questions presented by the appeal.
There was evidence offered by the state tending to show that on Christmas night, December 25, 1922, Proctor Locklear, Zack Brooks, and Bert Locklear called at the house of Donnie Locklear to pay Donnie and her three daughters a social visit. While there--about 8 or 9 o'clock in the evening--they heard Walter Oxendine, Clarence Oxendine, and Dock Wilkins coming down the road, singing, hollering, and cursing loud enough to be heard a distance of approximately 40 yards away. These parties stopped in front of Donnie Locklear's house and stood there for a few minutes talking with each other in low tones. The inmates of the house recognized them by their voices. Presently Dock Wilkins, who was under the influence of strong drink and cursing quite boisterously, rushed aginst the door and pushed it open, went inside, and pulled Proctor Locklear out into the yard and around the house. Walter and Clarence Oxendine did not go into the house, but they followed Dock Wilkins after he had come out of the house and assisted him in taking Proctor Locklear into the back yard. There was testimony that some one of the three exclaimed, with a number of oaths and epithets: "He is the man we are after, kill him." The other persons who were in the house at the time made a hasty exit and were on their way to Bert Locklear's home some 200 yards away, when shots were heard in Donnie Locklear's back yard.
In the meantime, Robert Wilkins, who had not been in Donnie Locklear's house at any time during the evening and whose presence in the neighborhood was apparently unknown to every one, walked around the house and into the back yard to see what all the trouble was about. He had a shotgun on his shoulder, and Clarence Oxendine tried to take it away from him. While Robert Wilkins and Clarence Oxendine were tussling over the shotgun, Walter Oxendine and Proctor Locklear began shooting at each other with pistols. Walter Oxendine fired one shot and Proctor Locklear two. One of the shots fired by Proctor Locklear struck Robert Wilkins and killed him.
The defendants, on the other hand, tell quite a different story. Their testimony is to the effect that they were out "holieving" on Christmas night, going from place to place, turning out peoples' stock, putting wagons on their porches, etc., which, they contend, is a custom of Christmas celebration among the Cherokee Indians of Robeson county. When they came to the home of Donnie Locklear, Dock Wilkins, who was drinking quite heavily, rushed against the door, pushed it open, and went on the inside. In a few minutes he and Proctor Lockiear came out of the house, and they all engaged in a tussle, but without any ill will towards Proctor, as they had nothing against him and did not even know beforehand that he was in the county; he being a resident of Hoke county and only visiting in the community.
While they were tussling in the yard, Walter Oxendine fired his pistol into the ground, and Proctor Locklear ran away and across the field, but no effort was made to shoot him or to follow him. Thereafter, Walter and Clarence Oxendine, Dock Wilkins, and Robert Wilkins, who came up about that time, all walked down the road together and Walter told Dock he had not acted properly at Donnie's house and that he should go back and apologize. Dock was too drunk to apologize, and so Robert Wilkins said he would go back and make amends for him. This he started to do. Robert Wilkins had not been gone but a few minutes when two pistol reports were heard, and Robert began shouting and exclaiming, "Proctor Locklear has shot me." At least 10 or 15 minutes had elapsed between the time when they left the house and Robert Wilkins returned to apologize for Dock's conduct.
As bearing upon the indictment for murder, the court, among other things, charged the jury as follows:
"If the evidence satisfies you beyond a reasonable doubt that the defendants Walter and Clarence Oxendine and Dock Wilkins provoked the difficulty and are responsible for the fight that ensued, and that Proctor Locklear was not at fault, and that the deceased walked up while the fight was in progress, but did not participate in the same, and was struck by a stray bullet and suffered wounds from which he...
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