State v. Payne

• Decision Date: 15 June 1938
• Docket Number: 76.
• Parties: STATE v. PAYNE et al.
• Court: North Carolina Supreme Court

197 S.E. 573

213 N.C. 719

STATE v. PAYNE et al.

No. 76.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.

William (Bill) Payne and John Washington (Wash) Turner were convicted of murder in the first degree, and they appeal.

No error.

Criminal indictment charging defendants with the murder of George Penn.

Verdict Guilty of murder in the first degree.

Judgment Death by asphyxiation.

J Walter Haynes and Jones, Ward & Jones, all of Asheville, and W. D. Siler, of Raleigh, for appellants.

A. A. F. Seawell, Atty. Gen., and Harry M. McMullan and Emmett C. Willis, Asst. Attys. Gen., for the State.

WINBORNE Justice.

The record on this appeal covers three hundred forty two pages and contains six hundred and eighty eight exceptions. Some of the exceptions have been abandoned; the others have been grouped in fifty two assignments of error. Some of them are formal; others, manifestly untenable, require no further elaboration on well settled principles of law relating thereto. The remainder may be fairly treated in a few groups.

The defendants each pleaded "Not guilty."

On the trial below the State introduced evidence tending to show this narrative: George Penn, a State Highway patrolman, was killed in the late afternoon of Sunday, August 22, 1937, on the farm and near the barn of Van Patton on Webb Creek in Buncombe County, at the end of a nine or more miles automobile chase of defendants, fugitives from justice as felons under sentence for robbery. The chase began at a truck and bus weighing station, sponsored by the U.S. Bureau of Public Roads and conducted by the State Highway Commission as a unit in state-wide road life survey. The station was located on U.S. Highway No. 70 about midway between the junction of that highway with U.S. Highway No. 74, which leads to Chimney Rock, and the bridge entrance into the village of Sayles Bleachery opposite the municipal golf course, east of Asheville. All automotive vehicles were being stopped for information. By means of distinctive signs the traffic each way was warned to slow up, stop and "Obey Patrolman". At the place there were a State Highway truck and a State Highway Patrol car, distinctively marked, four employees of State Highway Commission and three State Highway patrolmen, including George Penn,-dressed in regulation patrol uniforms.

Two men, later ascertained to be the defendants, approached the station from the west, but, being without driver's license and in a stolen blue Ford sedan automobile, turned in the line of traffic at distance from the station variously described as fifteen feet to two hundred yards, and drove away at a rapid rate of speed in the direction from which they came. Patrolman Penn called out "Halt", three times. Defendants did not stop. Penn set out in pursuit in the patrol car. The chase was over the bridge, into and through the Sayles Bleachery village, up the hill, over the railroad bridge, down to and out the old Fairview-Biltmore road to U.S. Highway No. 74, thence along that highway about six miles toward Chimney Rock, and thence on the Webb Creek dirt road three miles to Van Patton's barn. The Ford and the patrol car were seen traveling at a very high rate of speed, and were heard at several points along the route. The patrol car with siren blowing was close behind the Ford at every point they were seen from bridge entrance to the Bleachery to the barnyard of Van Patton. In the beginning the two men were riding the front seat of the Ford. But near the top of the hill before reaching the railroad bridge one of them was seen crouched down between the front and back seats. As the cars came to U.S. Highway No. 74, the man in the rear seat of the Ford was shooting at the patrol car. Five or six shots were heard.

As the cars approached Van Patton's place, the Ford turned off the main road into the private roadway that leads to and ended at Patton's barn and garage building. It was driven up to the corner of the barn and to the very edge of a field of average growth corn which surrounded the barn. The patrol car stopped fifty yards away. Patton testified that he did not see the officer get out of the patrol car, but he saw him after he was on the ground. He was dressed in officer's uniform. "Just after I saw him on the ground, I heard a shot. That was the patrol shot. I think he was the first man shot. The others opened on him then * * * and kept it up until I saw him fall. * * * The shots came from right at the barn as near as I could tell * * * I could not tell how many shots I heard from the barn. They shot so fast. Half a dozen or something more. * * * He (officer) was standing behind his car when he fell * * *". Then after one of the men had walked down to where the officer lay on the ground, they turned the Ford around, and, in attempting to go out by the patrol car, stuck in a ditch. They then used the patrol car to get out. Then they left carrying the officer's pistol with them. The legs of the officer were in the ditch and showed sign of being run over by the car. At the barn four empty 12 gauge shot gun shells and two rifle cartridge shells and clip were found. The clip and cartridge shells were found near a post at the upper side of the barn, at which there were tracks "where men stood" and a "mark on a plank that sticks out by the post that looked as if he had laid his gun down. Looked as if he used it for a rest. That was in direct line with * * * the officer's body * * *".

There were bullet holes in the front, the windshield and the top of the patrol car. The men made their escape, but the blue Ford was located that night. There were fresh bullet holes in the trunk on the rear, and a shot gun was in the back seat. Finger prints were taken. Then the hunt began, resulting in the arrest of the defendants at Sanford, North Carolina, on January 3, 1938. Later defendants, separately, confessed the shooting.

The State, over defendants' objection and for purpose of showing flight, offered testimony of alleged confessions of the defendants and direct testimony as to escapes of the defendants from arrest by officers following the homicide in question up to the time of their arrest. Sheriff Brown testified that Turner admitted that in December 1937 he and one Bolen Bird engaged in a shooting encounter with State Highway patrolmen in New Hanover County. Patrolman Sloan was permitted to describe the occurrence, a four-mile running chase, in which Turner shot at the officers with a high-powered rifle and pistol, and made his escape. The pistol and rifle were offered in evidence. Other testimony was offered by witnesses to show that on several occasions following the killing of Penn, Payne and Turner evaded arrest. Sheriff Brown testified that Turner stated that he had a boat near Southport for use in case he ran into a "dead end". Further statements of Turner and Payne and of other witnesses were admitted to the effect that Turner and Payne spent some time at a tourist camp at Myrtle Beach, South Carolina, with one Smith, who had escaped with them from State Prison, but that they left there when Smith shot an officer. The court admitted the evidence solely for the purpose of showing flight and then only against defendant who made the confession. The jury was so instructed.

In criminal cases every circumstance that is calculated to throw any light upon the supposed crime is permissible. State v. Case, 93 N.C. 546, 53 Am.Rep. 471; State v. Dickerson, 189 N.C. 327, 127 S.E. 256; State v. Lawrence, 196 N.C. 562, 146 S.E. 395.

Flight is competent evidence to be considered by the jury in connection with other circumstances in passing upon the question of guilt. State v. Malonee, 154 N.C. 200, 69 S.E. 786; State v. Hairston, 182 N.C. 851, 109 S.E. 45; State v. Stewart, 189 N.C. 340, 127 S.E. 260; State v. Steele, 190 N.C. 506, 130 S.E. 308; State v. Adams, 191 N.C. 526, 132 S.E. 281; State v. Mull, 196 N.C. 351, 145 S.E. 677; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Lawrence, supra; State v. Tate, 161 N.C. 280, 286, 76 S.E. 713, 715.

In State v. Tate, supra, it is stated: "But such flight or concealment of the accused, while it raised no presumption of law as to guilt, is competent evidence to be considered by the jury in connection with the other circumstances."

In State v. Steele, supra, Varser, J., said (page 312): "Subsequent acts, including flight, * * * are competent on the question of guilt."

Flight is not evidence of and may not be admitted to prove premeditation and deliberation. State v. Foster, 130 N.C. 666, 41 S.E. 284, 89 Am.St.Rep. 876; State v. Tate, supra; State v. Westmoreland, 181 N.C. 590, 107 S.E. 438; State v. Collins, 189 N.C. 15, 126 S.E. 98; State v. Stewart, supra; State v. Steele, supra; State v. Graham, 194 N.C. 459, 140 S.E. 26; State v. Lewis, 209 N.C. 191, 183 S.E. 357.

Consequently, the defendants contend that having confessed to the shooting of the deceased, the door is closed to the State to introduce evidence of flight. The record discloses, however, that the identity of the defendants was not definitely known until after their arrest in January 1938, and then only through the alleged confessions. The only independent testimony was that of the witness, Van Patton, who from the witness stand identified Turner as one of those at his barn at the time of the shooting. It is appropriate to remember that on being arraigned the defendants pleaded not guilty.

"The circumscribed admission of the defendants should not be invoked as a means of excluding evidence material to the state's proof of the essential elements of the offense charged in the indictment." State v. Galloway, 188 N.C. 416, 124 S.E. 745, 746.

The present...