State v. Ray
| Decision Date | 05 January 1938 |
| Docket Number | 146. |
| Parties | STATE v. RAY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yancey County; Felix E. Alley, Judge.
Phillip Ray and Otis Chase were convicted of murder in the second degree, and they appeal.
No error.
In prosecution of cousins for murder, evidence indicating that one cousin knew other's attitude toward deceased accompanied him on day of fatal shooting and on previous occasions when they were apparently looking for deceased, and at time of shooting so moved as to be able to give assistance to other cousin, who actually shot deceased, held to authorize conviction of both cousins for second degree murder.
The defendants were charged with the murder of one James O Higgins.
Verdict Guilty of murder in the second degree.
The circumstances of the homicide, according to the evidence offered by the State, were substantially these:
The deceased was instantly killed by a pistol shot fired by the defendant Ray. This occurred on the streets of the town of Burnsville on Saturday, May 8, 1937. For some reason, not disclosed by the record, there was ill feeling on the part of defendant Ray toward the deceased. On the preceding Saturday, May 1, at about the same place, there had occurred an altercation between them, in the course of which defendant Ray had fired several shots at the deceased (then apparently unarmed), who dodged behind a car and escaped injury except for a slight abrasion on the hand. At that time Ray said to deceased, "I will kill you," and the next day and at other times during the week made threats against him.
Defendant Chase was present with Ray on the occasion of the first encounter, but it does not appear that he said or did anything at that time. Chase and Ray are first cousins and live near each other in Burnsville. The deceased lived a short distance from town.
There was evidence tending to show that during the time between the preceding Saturday and the day on which the fatal shooting occurred Ray and Chase were constantly together, riding usually in Ray's automobile; that on two occasions, when passing, on the road, a truck in which deceased usually rode to his work with a highway force, the two defendants stopped and looked in the truck. The deceased was not in the truck on either occasion. Also, during that week the two defendants were seen parked in a car near a place on a road where deceased had recently worked. It was further testified by the widow of deceased that some time Wednesday night, preceding the homicide, she heard just outside the home where she and deceased were sleeping voices of two men recognized as those of the defendants, and that some one struck the side of the house and the porch roof heavy blows.
From the record of the evidence before us the immediate circumstances of the homicide appear to be as follows:
On Saturday afternoon, May 8, the deceased was standing on Main street in Burnsville, and the defendants in an automobile drove up to the curb near him. Later when deceased was at another place on the street the defendant Ray, alone, drove up to the curb in a few feet of him, then backed off and shortly returned with Chase in the car with him and stopped at the same place. There is no evidence that any words passed between them at that time. A short time later deceased, riding in an automobile with a friend, about the town, met and passed the defendants also riding in an automobile. The automobile in which deceased was riding returned to Main street and was parked near the intersection of Academy street, and deceased stopped to talk to a man in a car parked alongside, when the two defendants appeared walking on the sidewalk of Main street and passed by the place where deceased was standing. Deceased then went upon the sidewalk near the intersection, at the corner of a building, and the defendants stopped in the middle of the intersecting street. The evidence is conflicting as to who spoke first, but hot words soon passed between deceased and Ray, with reference to the occurrence of the preceding Saturday and indicating that both were presently armed and not unwilling to shoot it out. When this talk began, Ray, still facing deceased, moved up Academy street, and defendant Chase moved out across Main street and towards deceased's side and rear, as he stood facing Ray. Deceased then noticed Chase's movement and said to him, "Don't try to get behind me," and Chase replied, "I am not going to." Chase stopped about the center of the street and does not appear to have said or done anything thereafter before the shooting took place. Ray was then ten or twelve feet from the deceased, and Chase was fourteen or fifteen feet from Ray, according to a State's witness. At this juncture two persons who were present went up to both the deceased and Ray and sought to prevent further difficulty, but their efforts for peace were unavailing, and Ray drew his pistol and fired. Deceased drew his pistol, but it snapped or failed to fire, and he was jerked back around the corner of the building out of the line of fire from Ray by a bystander, but the deceased pulled away from the man and came out beyond the corner, and fired at Ray, holding his pistol in both hands. Ray continued to fire, and deceased fell with a bullet through his brain. In all four or five shots were fired.
After deceased fell, Ray ran up the street, and a few moments later Chase in Ray's automobile was seen driving rapidly toward Ray's home. When Chase was arrested twenty or thirty minutes later in front of his own home the officer found on his person a loaded pistol inside his belt under his coat.
The defendants on the other hand offered evidence tending to show that the deceased was the aggressor, and contended that Ray's shooting was in self-defense. Neither of the defendants went upon the stand as witnesses.
All the elements of felonious slaying, as well as defendant's contention of self-defense, were fully and correctly presented to the jury in the charge of the court.
There was a verdict of guilty of murder in the second degree as to both defendants, and, from judgment imposing prison sentence, defendants appealed.
R. L. Whitmire, of Hendersonville, and Charles Hutchins and Watson, Founts & Watson, all of Burnsville, for appellants.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
The appeal presents two questions:
(1) Was there error in the admission of incompetent testimony or...
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