State v. Pearson

• Decision Date: 15 December 1896
• Citation: 26 S.E. 117,119 N.C. 871
• Parties: STATE v. PEARSON.
• Court: North Carolina Supreme Court

26 S.E. 117

119 N.C. 871

STATE v. PEARSON.

Supreme Court of North Carolina

December 15, 1896

Appeal from superior court, Burke county; Brown, Judge.

S. B Pearson was convicted of burglary, and appeals. Affirmed.

Indictment for burglary, tried before Brown, J. Indictment: The jurors etc., present that S. B. Pearson, Jacob Poteet, and Will Chambers, etc., in the nighttime, about the hour of 11 o'clock, etc., with force and arms, willfully unlawfully, forcibly, feloniously, and burglariously did break and enter a certain storehouse, warehouse, and building, the property of Collett & Jeter, then and there in the occupation and possession of one J. H. McNeely, wherein were then and there situate and kept and contained certain personal property of J. H. McNeely, to wit, beer, wines, and spirituous liquors, with the intent then and there willfully and feloniously to steal, take, and carry away said personal property, to wit, the beer, etc., of him, the said McNeely contrary, etc. The second count of the indictment was withdrawn.

J. T McNeely, a witness for the state, testified: "I clerk in J. H. McNeely's bar, opposite the post office. Brick building, with basement. Whisky, brandy, beer, and wines kept in basement. Broken into on the night December 15, 1895. It went into basement on morning of 16th, found whisky poured out and gone. It was in there the night previous. There were several barrels of beer in there the night before. Some four or five dozen bottles were taken away and gone. Windows were barred the night before, and the bars were sawed in two. We use basement for storehouse. Stairway leads into it. I found an empty beer bottle in Poteet's house [describes it as one taken from the basement]. Found several barroom flasks in Poteet's house empty, like those stolen from our basement. Found things there two or three days or a week after basement was broken into. Poteet said to me, before he would be put to any trouble, he would tell how it was. Poteet had bought no whisky from us." Bottles testified to as found in Poteet's place were put in evidence. J. W Campbell: "East end of basement occupied by McNeely. Bottled beer in barrels and other liquors there. Windows secured by bars or wooden grating, sawed in two. Examined basement the morning after it was broken into. [Found it in condition as described by previous witness.] The day afterwards, Pearson came to my place, and paid a little bill, and said, 'Have I not done you all right?' I said, 'Yes.' He said, 'Let's go, and see the broke-in basement.' We did so, and he said, 'That's a damn sharp trick.' He asked if McNeely had lost anything, and I said, 'Yes.' He said, 'If this don't stop them, I have enough against them to stop them. McNeely shall not sell liquor in Morganton. They have done me dirty.' I said, 'I am sorry this happened. I have lost about $300 by this transaction.' 'Why?' he said. I said, 'I have lost about $300.' Pearson said, 'Old fellow, if I had known that you had anything to do with this concern, I would not have had it done for anything in the world.' A few days before the basement was broken into, Pearson told me McNeely had not done him right, and that he would have revenge. Pearson was bartender for McNeely, and quit ten or fifteen days before the basement was broken into. I had no interest in the liquor in the basement. None of it belonged to me, or any in the business." John McNeely testified: "I am sole owner of the bar and saloon broken into. These bottles are bottles that were in my basement the night it was broken into. I am the only person in town that keeps or uses this kind of bottle. I had on hand at the time the place was broken into about 800 gallons of liquor in the basement. Tuesday or Wednesday after it was broken into, Poteet told me that he met Pearson at the depot, and they went up the railroad, and went near a house, and they came to Pearson's, and took a drink; said he left Pearson's, and met people going to church; that Pearson invited him to take a walk to see a darkey." This evidence is admitted only as against Poteet, and so explained carefully to the jury. The defendant Pearson excepted to the declaration of Poteet. The court told the jury against that Poteet's declaration was evidence against Poteet only, and not against Pearson. John Walker testified: "Basement said to have been broken into Sunday night, and that evening, about sundown, I met Pearson and Poteet on the railroad, coming from the direction of Becky Brown's, about a quarter of a mile from her house. No one else with them." C. G. Cain testified: "Saw Poteet and Pearson the same Sunday evening, near railroad. No one with them. They were walking together." Garrison testified: "Saw Poteet Monday morning about sunup, going by alone. Preceding day was Sunday. Bar broken into that night. That Sunday morning, at sunup, I was at Pearson's house. Poteet came, and Pearson got out of bed, and went out to see Poteet. They appeared very friendly." Queen testified: "The night the bar was broken into, I was near post office, about ten o'clock Sunday evening, and saw three men come up in front of McNeely's bar. I know that Pearson was one. He stopped in front of the bar. Had sack with something in it, and something like a pistol in the other hand. One went down to the basement, and was gone about a minute, and reported to Pearson. Could not hear what they said. Heard Pearson say: 'That's all right, by God!' While one went down to the basement, one stood near the corner. I recognized Pearson's voice distinctly. Didn't know others. I also recognized Pearson by his looks." Robertson testified: "On Monday, at 8:30, I was at Poteet's house, to get him to do some work for me. He said that he was up late the night before; wanted me to let him off from the work. Said he had half gallon of whisky at Block Harrison's distillery. This was Monday morning, after the burglary. About ten o'clock same day, at his shop, Poteet had a quart or half gallon of whisky in tool chest. Gave me a drink. He had four bottles like those exhibited. White corn liquor in all four bottles. I think the liquor in Poteet's bottles looked, tasted, and smelt, and beaded like some liquor in McNeely's bar, which I tasted the day before it was broken into. I also tasted Block Harrison's liquor from his distillery; not same liquor as Poteet gave me. I have kept bar, and can distinguish liquors by taste, smell, bead, and color. Poteet said in private conversation during the trial before the justice of the peace with another person that the liquor he let me have he got from Block Harrison. He was not then on trial. Poteet gave me some of the liquor, and I afterwards showed it to Harrison." M. A. Williams testified: "In prison, defendant Pearson told me that he would like to have something to read and to drink. I went to Pearson's house at his request, and got it, and he said he thought they were trying to get Poteet to turn state's evidence, but that he did not know anything on him. Pearson appeared agitated." Garrison recalled: "I tasted the whisky Robertson gave to me. He came with me to the barroom. It tasted, looked, and beaded like McNeely's liquor. I was a distiller for five or six years. Robertson said he got the whisky from Poteet." Cook testified: "Saw Poteet with three bottles of Whisky Monday morning, at ten, after bar was broken into. Saw this whisky tested that night with McNeely's liquor; same color, taste, and bead." Sterling Avery testified: "Sunday night the bar was broken into. Pearson was standing at Tull's drug store, about seven in the evening; again at nine o'clock, I saw him standing about 40 feet from McNeely's barroom, and had something in his hand." Callis Erwin testified: "Was in basement that Monday morning. Liquor was poured out over the floor. Beer bottles gone. One crate broken open, and half of it taken away." Wall testified that Queen's character is good for truth and honesty, and other witnesses testified to the same. Garrison recalled: "J. W. Campbell said he had lost three hundred dollars by the pouring out of the whisky. Did not say he had any interest in the business." There was evidence of Campbell's good character. N. L. Beach testified: "The state asked this witness if he knew general character of Queen. He stated he did. What is it? He is a drinking man, and a rough, rowdy fellow; otherwise, good. What is his general reputation for truth and honesty in the neighborhood where he lives? Ans. Good. He sometimes gets drunk, and acts rowdy; otherwise, his character is good." Defendant Pearson excepted to the question and answer. Braswell testified for the defendant: "December 15, 1895, I worked at Block Harrison's distillery, two miles from Morganton. Poteet rode up there Monday morning, between eight and nine, December 16th. He got whisky there. Had an order from Harrison for 65 cents' worth. He came for it the Saturday before, and left his bottle. We went out, and left his bottle, and he came back Monday. Bottle looked like those--this make of bottles." Pink Perry testified: "Saw Poteet Monday, December 16th. Borrowed horse to go to Block Harrison's. Gave twenty cents for horse." Mrs. Poteet, wife of defendant Poteet testified: "The night of Sunday, December 15th, my husband remained at home all night; came in between six and seven in the evening; and did not go out any more until morning." There was evidence that Mrs. Poteet's character is good. The defendant Pearson testified: "Sunday night, December 15th, I went up railroad about sundown. Met Poteet, and talked to him. He walked along with me to see a negro. Poteet went by my house, and I gave him two drinks of whisky. Went home at seven o'clock in the evening, and never went out again until next day. Knew nothing about the...