State v. Powell

• Citation: 83 S.E. 310,168 N.C. 134
• Decision Date: 05 November 1914
• Docket Number: 266.
• Parties: STATE v. POWELL ET AL.
• Court: United States State Supreme Court of North Carolina

83 S.E. 310

168 N.C. 134

STATE v. POWELL ET AL.

No. 266.

Supreme Court of North Carolina

November 5, 1914

Appeal from Superior Court, Pender County; Cooke, Judge.

Louis Powell and Junius Pridgen were convicted of murder in the second degree, and defendant Pridgen appeals. Affirmed.

Where one of the defendants had been fighting with deceased just before he followed the other defendant from the room and was killed by him, evidence as to all that occurred held admissible, it all being one continuous transaction.

The defendant and Louis Powell were jointly indicted for the murder of Charles Brown, and were convicted of murder in the second degree. Charles Brown was killed at the house of Oliver Williams, who is the husband of Mary E. Williams. She testified for the state as follows:

"On the night of February 28, 1914, there was a quarrel in my house between the prisoners and the deceased. Pridgen and Powell were in the kitchen, and the deceased was in an adjoining room; Powell had a knife open in his hand Pridgen threw a soup dish and an empty bottle at the deceased, and the latter ran into the kitchen with a chair and struck Pridgen on the head; Powell left the kitchen and the deceased followed him, and shortly thereafter, within five minutes, the deceased was lying on the floor in the house dead from a cut in the left side."

Dave Pridgen, a witness for the state, testified that he was at the house, and that Pridgen went into the kitchen. Powell followed him with a knife in his hand and said to Pridgen that he would not take it, and "damned if I would take it and you don't have to." This witness further testified as to what then took place, as follows:

"At that time I looked around and saw Charley in the other room coming toward the kitchen, and Junius Pridgen threw an empty bottle at Charley, but missed him, and the bottle broke to pieces against the side of the house. Charley said something and picked up a chair and came into the kitchen and hit Junius and ran out. Louis got out first, and Charley was right behind him."

"Question by the Court: Did I understand you to say they were running? Which was running in front and which was running after? Louis was ahead, and Charley was right behind him. Louis had his knife in his hand. When defendant started out, I grabbed his coat tail, and he did not go out. I stayed in the kitchen a minute or two to see about Junius' head, and then went out to see where Charley and Louis were, and when I went into the south room, I stumped my feet against Charley on the floor, but stepped across his body. When I called Charley, Louis spoke, saying, 'There is nothing ails him, but he is drunk,' and I reached down to lift him up and found his clothes bloody. And I said, 'Somebody bring me a light,' and Mary came with a light, and I said, 'Somebody has killed him.' I said, 'Louis, you have killed Charley,' and Louis Powell didn't say anything. I told everybody to stay in the house and sent Louis Pridgen after Mr. George Huggins, to tell him what the trouble was. I do not know anything about any fight or fuss except that part of the affair when Charley started towards Junius Pridgen, after Junius said, 'Don't a damned man touch me.' "

And he further testified:

"I went out of the kitchen after Charley and Louis because I had heard Louis say he would fix him, and I did not know what he would do, but did not want him to have any trouble."

Jacob Harrell, a witness for the state, testified that he held a coroner's inquest, and that the wound was as near the heart as it could possibly be.

George Huggins testified that he picked up a knife with a white handle under the fence, where the fence had fallen down, and it looked like it had been thrown under the fence. This was found on the Sunday following, in the afternoon.

Mary Williams further testified as follows:

"A black-handle knife was found by the dead body of Charley Brown that looked like the one he had in my room before he went out ahead of Charley."

Oliver Williams, the owner of the house, testified that on that afternoon, while the four men were at the house, he carried a gallon of whisky there and all drank some of it.

Lizzie Foy, witness for the state, testified:

"I was at the house the night Charley Brown was killed. All I saw was when Junius and Mary Ellen were in the kitchen, Louis went in the kitchen and when he started, Mary Ellen told him to go out, and he said, he was not going to see anybody hurt Junius that night. And Charley Brown said, 'Let him alone'; he would fix him. And at that time Junius said, 'Look out!' and I ran in the other room, and after I got in there, I heard the bottle hit the floor. I heard Mary Ellen tell some one to go and get Oliver Williams, her husband."

There was evidence that Louis Powell admitted having had the knife with the black handle that night, and also evidence that, when it was first picked up, "the blade was bloody to the very jaws, and it was wide open." At the conclusion of the evidence, the defendant Junius Pridgen moved for a judgment of nonsuit. This motion was denied, and he excepted. At his request, made in due time, the judge agreed to reduce his charge to writing, and did so, except as hereinafter indicated. The record discloses that the court reduced its charge to writing and read it to the jury, and at its conclusion they were directed to return and make up their verdict. Counsel for the prisoner Junius Pridgen at this time requested the court orally to charge the jury that they should not consider the fact that the prisoner had not testified to his prejudice, and the court so instructed the jury, but not in writing, and the prisoner excepted. The prisoners were convicted, and Junius Pridgen appealed to this court, upon exceptions reserved by him.

L. C. Grant and E. T. Burton, both of Wilmington, for appellant.

Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The state did not ask for a conviction of murder in the first degree, and there is no sufficient evidence of self-defense, so that the question is, Was the prisoner guilty of either murder in the second degree or manslaughter? But the court gave the prisoner the full benefit of the plea of self-defense in the charge, and also instructed the jury fully and correctly upon the law of manslaughter, as applicable to the facts of the case. The jury were told that if the killing with a deadly weapon had been established, the law raised a presumption of malice, and the prisoner would be guilty of murder in the second degree, nothing else appearing, and that the burden then rested upon him to show such circumstances of mitigation or excuse, to the satisfaction of the jury, and not beyond a reasonable doubt, as would reduce the homicide to manslaughter or entitle him to an acquittal, explaining with sufficient fullness, as we have stated, the law as to manslaughter and self-defense. The jury convicted both prisoners of murder in the second degree, and we must therefore inquire whether there was evidence to support the conviction, upon the motion to nonsuit. The special facts upon this point, which it is necessary to re-state, are these:

Mary Ellen Williams testified:

"On the night of February 28, 1914, there was a quarrel in my house between the prisoners and the deceased. Pridgen and Powell were in the kitchen, and the deceased was in an adjoining room; Powell had a knife open in his hand; Pridgen threw a soup dish and an empty bottle at the deceased, and the latter ran into the kitchen with a chair and struck Pridgen on the head; Powell left the kitchen and the deceased followed him, and shortly thereafter, within five minutes, the deceased was lying on the floor in the house dead from a cut in the left side."

It will be seen from this short statement that the prisoners Louis Powell, who actually killed the deceased, and Junius Pridgen the appellant, had a quarrel with Charles Brown and were arrayed on one side as joint combatants against him, Junius Pridgen being in the beginning the more aggressive of the two. He committed the first assault upon Brown by throwing the soup dish at him, while he was standing in the other room. He evidently had ill will and malice towards him, or there was, at least, evidence to show that he had, as they were attentive, it seems, to the same girl, and a rivalry for her affections may have caused jealousy between them, Charles Brown having said "that he wanted to talk to the lady, too." Junius Pridgen missed his mark with the dish and then hurled the bottle at him, missing him again, when Charles Brown rushed upon him and struck him on the head with his chair. There was evidence that, during this mêlée, Louis Powell and Junius Pridgen were acting in concert, and with a common purpose, Louis having his knife drawn ready for action if it became necessary, and immediately after Junius was hit with the chair, he went out of the door, Charles Brown immediately following him, and Junius following Charles. This evidence of a concert of action between Junius Pridgen and Louis Powell and a common design to kill Charles Brown is quite strong, for Powell had his knife open in his hand, as we have said, and Junius Pridgen must have seen it and knew, no doubt, that his demeanor toward Charles Brown had been angry and threatening, and that his purpose, therefore, was a deadly one. Nevertheless, when Powell went out with Brown in this menacing humor and hostile attitude towards him, the prisoner, Junius Pridgen followed closely behind Brown to a place not far from where he was slain, and was prevented from being there "at the death" solely by the intervention of others. The evidence tended to show, also,...