State v. Parker

• Decision Date: 30 June 1871
• Citation: 65 N.C. 453
• Court: North Carolina Supreme Court
• Parties: THE STATE v. W. B. PARKER ET ALFRED GILMER.

65 N.C. 453

THE STATE

v.W. B. PARKER ET ALFRED GILMER.

Supreme Court of North Carolina.

June Term, 1871.

An indictment for murder which charges that the prisoners on the deceased “did make an assault and in some way and manner, and by some means, instruments, and weapons to the jurors unknown, did then and there feloniously, wilfully, and of their malice aforethought deprive him the said A. of his life so that the said A. did then and there instantly die,” &c., is sufficient, although the evidence presents different ways and means by which the deceased might have been killed.

It is not competent on the cross-examination of a witness to ask him if he made the same statement before the grand jury as he now makes, when the counsel state that their object in asking such question is not to impeach the credibility of the witness. State v. Williams, 7 Jones 446; State v. Williams, 9 Ire. 140; State v. Baker, 63 N. C. 276, cited and approved.

The prisoners were indicted for the murder of one Thomas Price, (Colored) tried before Tourgee, J., at Spring Term, 1871, of GUILFORD Superior Court.

The indictment contained but one count, and in describing the manner and means by which the deceased was killed, says, the prisoners “on the body of Thomas Price, did make an assault and in some way and manner and by some means, instruments, and weapons to the jurors unknown, did then and there feloniously,” &c., &c. The indictment concludes, “and so the jurors aforesaid on their oath aforesaid do say that the said William B. Parker and Alfred Gilmer, him the said Thomas Price in the manner, and by the means aforesaid to the jurors aforesaid unknown, then and there feloniously, wilfully, and of their malice aforesaid did kill and murder, against the peace and dignity of the State.”

W. B. Bogart, Coroner of the County, testified that deceased was found on Monday morning the fifth of December, 1870, dead on the premises of the prisoner, Parker, and about a quarter of a mile from the house of said prisoner, with the flesh of one leg entirely gone, the foot had been separated from the leg, small bone in the lower part of leg broken, on the back and sides of the body were found many bruises, and as the witness testified “at least a dozen bruises between the shoulders and down the small of the back, and were of the size of silver half dollars, oval and round.”

The witness further testified that the place where the body was found was a sandy surface covered with dead grass, that he found blood on rails lying against a fence in the direction of the prisoner Parker's house; the blood seemed fresh, and its appearance indicated that it had been there but a short time; that he followed a path in the direction of Parker's house to the body of deceased, and when within forty or fifty yards from the prisoner Parker's house, he found a spot where there seemed to have been marks of quite a struggle and considerable blood on the ground, three or four different sized tracks were at this place seen, these indications covered a space of eight or ten feet square, at this place found some drops of blood which indicated a fresh appearance.

The witness further testified that the bruises, showed as if they might have been caused by a rock, or punches by a stick. Bruises were also found on the breast. He also stated that the bruises might have been caused by the biting of dogs.

Another witness testified that he met the prisoners on Saturday night of the fourth of December, 1870, both of whom had sticks, and the prisoner, Parker, said “they intended to find out who had burned his corn, and were in search of the party, that they intended to kill some one, and kill till they were taken up.”

Another witness testified that during the winter of 1870, he lived in 250 yards of Parker's house, that on Saturday night December 4th, Parker came to the house of witness and asked witness to go up and see the thief who burnt his corn, that he then had old Tom Price under arrest up there by the women, that if witness did not go then, that he might not see him, for he (Parker) might kill him or make his dogs tear him up, that Parker left, but returned in a few minutes, and begged witness to go and hear the old man tell his tale, for he did not think he would ever turn him loose. Parker had with him a half dozen dogs, a gun, and an old knife. After he, (Parker) left, witness saw the prisoner Gilmer, join Parker, some twenty or thirty yards from the house of witness. This was about midnight.

Witness further testiffed, that sometime after Parker left his house, he heard the dogs fighting, as he supposed, in Parker's yard; a few minutes after this, he heard Parker say, “Oh, God damn you, I told you they would kill you.” Shortly thereafter, witness recognized the voice of the deceased cry out three times, “Oh, Lordy.”

There were several other witnesses, who testified as to the condition of the body of the deceased when found.

When the witness Bogart was being cross-examined, the prisoners' counsel proposed to ask him if he made the same statement before the Grand Jury, as he made then.

The Court inquired if the defence intended to impeach the witness; to which the prisoners' counsel stated that such was not their object.

His Honor held that the question was not competent in any other view. Prisoners excepted.

The prisoners' counsel offered no evidence, but asked his Honor to charge:

1. That the evidence of bruises upon the body of the deceased, taken in connection with the subsequent testimony in the case, establish, or tend to establish that the bruises upon the body of the deceased were caused by dogs, before his death, and consequently there is a fatal variance between the allegata et probata.

2. That the “way, and manner, and means,” of the death of the deceased, are shown by the evidence, and therefore there is a variance between the allegations and proof.

3. That the jury, if there is any doubt upon the question as to how the bruises were made, should give prisoners the benefit of the doubt.

4. That if the jury are satisfied from the testimony, that the deceased came to his death by reason of the bruises upon his body, caused either by dogs, stones, sticks, or any blunt instrument, or weapon, there is a fatal variance between the indictment and proof.

There were also other instructions prayed for not necessary to be stated.

His Honor declined to charge as requested in each and every particular, to which the prisoners' counsel excepted.

Verdict guilty. Rule, &c., Judgment and appeal.

Attorney General and Scott & Scott, for the State .

Mendenhall and Ball & Keogh, for the prisoners .

RODMAN, J.

This was an indictment against the prisoners for the murder of Thomas Price.

It contained but a single count, which was in the usual form, except that it charged that the prisoners, on the said Price, “did make an assault, and in some way and manner, and by some means, instruments and weapons, to the jurors unknown, did then and there, feloniously, wilfully, and of their malice aforethought, deprive him, the said Thomas Price, of life, so that the said Thomas Price did then and there instantly die,” &c. In the course of the trial, the prisoners proposed to ask of the witnesses examined on the part of the State to prove the...