State v. Robertson

• Decision Date: 06 May 1914
• Docket Number: 506.
• Parties: STATE v. ROBERTSON ET AL.
• Court: North Carolina Supreme Court

81 S.E. 689

166 N.C. 356

STATE v. ROBERTSON ET AL.

No. 506.

Supreme Court of North Carolina

May 6, 1914

Appeal from Superior Court, Polk County; Webb, Judge.

Andrew Robertson and Ceph Foster were convicted of manslaughter, and they appeal. Affirmed.

The prisoners were indicted in the court below for the murder of Milton Patterson. The evidence tends to show that Grover Wilkerson, Milton Patterson (the deceased), Dean Bolan, and Will Harris went to the house of Jim Foster, where the homicide occurred, and there found Mrs. Minnie Foster and Andrew Robertson and Cephas Foster (the prisoners), Tom Israel and Fairy Foster. The following extract from the testimony of the state's witness, Grover Wilkerson, will be sufficient for an understanding of the assignments of error: "All four went into the room; as witness went in the door, he said 'Hello.' Andrew Robertson said 'Hello,' and Mrs. Foster said, 'Come in.' Witness walked in and turned to the right. Milton Patterson came in and walked to about the center of the room. Tom Israel and Fairy Foster were sitting on the far side of the room. Milton said to Tom, 'How is Spartanburg?' Tom said, 'All right.' This time Mrs. Foster got up and handed her chair to Will Harris. Will took the chair and sat down close to the bed, where witness was standing. Ceph Foster was sitting in the corner, and he said to Dean Bolan 'Come over and sit down on the trunk with me.' Bolan went over and took the seat. Mrs. Minnie Foster got up and went out of the room on the front porch. Milton Patterson got up and went after her. Andrew Robertson got up and went out. Milton and Mrs. Foster spoke a word or two on the porch. Mrs Foster turned and came back through the hallway and met Robertson in the hallway. Milton Patterson had just turned from about the front door and met Mr. Robertson. Robertson walked up to him and said, 'What sort of a damned man are you?' and further said, 'You must think you are a God damned bear.' Milton said, 'No, but I am a God damned man.' Robertson said, 'I am a God damned man too,' and raised his arm like he meant to strike. Milton knocked his arm up and said, 'You have got me to show,' and started backward with Robertson. They were in the hall. Witness was standing in the door that goes into the room. They started coming toward witness, and witness stepped out. Andrew Robertson hollered, 'Shoot him, Tom [referring to Tom Israel],' and he also said to Ceph Foster, at the same time, 'Kill him, God damn him.' Milton shoved him down on the floor near the dresser. Ceph Foster ran up with his pistol in his hand and said, 'Must I shoot the God damned son of a bitch?' Witness was standing in the door, and said to Ceph, 'Don't shoot.' Went across and took hold of the pistol. Witness and Ceph scuffled across to the other side of the house. Dean Bolan got up and took hold of Ceph. Said, 'We can stop this without any shooting or hurting anybody.' Ceph said 'Stop it, by God, right now.' Witness said, 'I will stop Milton if you will put the pistol up and give it to Dean Bolan.' Ceph said he would. 'I don't want to hurt him. I have got nothing against him, but take him off of Robertson.' Witness said, 'I will if you will not shoot.' He said, 'I will give the pistol to Mr. Bolan.' Mr. Bolan took hold of his hand and said, 'Go take Milton off Robertson.' Milton was down on Robertson, had his knife in his hand, holding it over him. Witness pulled Milton's arm up and said, 'I would not cut him.' He said, 'I won't, if you say not.' He shut his knife up, took it in his hand, and hit Robertson over the head two or three or four times with it shut. At that time witness heard Dean Bolan and Ceph scuffling, looked around, and Ceph was coming toward them with a pistol. Witness stepped around and took hold of him. He kept coming on. Dean Bolan had hold of an arm, and Will came up behind him and took hold of him around the waist. He kept getting nearer Milton with the pistol. Milton hollered to take the pistol away from that boy; that he had no harm for him, and didn't want to hurt him. Ceph got down right over him with the pistol, had both hands on it. Patterson was sitting on Robertson, had his head turned toward witness and the others, looking up. Ceph got near to him, and Milton said, 'Don't get near me.' Milton raised up and hit Robertson with the knife, and Robertson ran out the door. Patterson turned like he was going out of the door, turned his head, and looked back, and Ceph Foster fired the pistol and shot. Milton threw his hands up and said, 'Don't shoot again; you have killed me already.' Ceph said, 'I will kill you,' and he fired three more shots. Milton was on the floor when he shot. Ceph hit him every time. Hit him in the back the first time. The shot came out up here [indicating]. The next shot hit him in the left arm, broke the arm all to pieces. Witness and Dean Bolan had turned him loose. Will Harris turned him loose when the pistol went to snapping. Ceph Foster threw his pistol down, threw the shells down to the trunk in the hallway, and commenced looking through the trunk. Witness and Dean Bolan went to where he was. Robertson was gone. As soon as he got loose from Patterson, he left. Witness said to Ceph: 'What are you doing? You have killed one man.' He said: 'I don't care if I have. I hope, God damn him, I have.' He laid the pistol down and walked to the kitchen. Witness went back to Milton and asked him how bad he was hurt. He said, 'I am shot all over and am going to die.' Said to go after Tom, his brother. 'I am going to die.' Witness went after him, and when he came back, Andrew Robertson was back. There were some other folks there at that time. Patterson died that day. Robertson said he wished he had never seen a pistol, and wished he had never let Ceph Foster have my pistol." The evidence is voluminous. The prisoners relied on the plea of self-defense and offered testimony to sustain their contention. They were convicted of manslaughter, and appealed from the judgment upon the verdict.

A witness may be impeached on cross-examination by her admission that she had written a letter to a third person, which disclosed on its face that she was seeking amorous relations with him.

Smith & Shipman, of Hendersonville, for appellants.

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

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

The prisoners introduced, as a witness, Mrs. Minnie Foster, who gave material testimony in their behalf. The state, for the purpose of impeaching her, handed her a letter. The case states: "This letter was lost by the prosecutors during the trial, and could not be produced. The letter, in substance, was very affectionate and very solicitious that Will Harris should visit Mrs. Foster, at times when Foster, her husband, was absent, and was sufficient to indicate that the writer was seeking amorous and illicit intercourse with Harris. Counsel read the letter at length to witness, and she said: 'I never wrote it to Will Harris for myself, and nobody need say I did. I wrote it for Fairy, if it is the one I wrote. I was in jail once; stayed pretty near five weeks. They never have had me in the lockup.' " If the witness had denied that she had written the letter, the matter being collateral to the issue, her answer would have been final, and could not have been contradicted. But she admitted its authorship, adding merely that she wrote for her daughter, Fairy Foster, and the letter itself disclosed that she was having, or wished to have, illicit relations with Will Harris, in the absence of her husband. This, of course, tended to impeach her character and to impair her credibility. It was just as competent, for this purpose, as if she had admitted having a conversation with Harris to the same effect. Her statement that she wrote for her daughter tended further to impeach her, as the letter, on its face, conclusively proved the contrary. It was the contents of the letter, written by her, that impeached her character. This court said in State v. Davidson, 67 N.C. 119: "This doctrine, in regard to asking questions of witnesses tending to disparage them, has been greatly modified in modern times, and it is now held that you may put almost any question to the witness, and that the witness is bound to answer it, unless the answer might subject him to an indictment, or to a penalty under the statute. The question, we think, should have been permitted, and he was bound to have answered it." State v. Exum, 138 N.C. 599, 50 S.E. 283; State v. Fisher, 149 N.C. 557, 63 S.E. 153; State v. Holly, 155 N.C. 485, 71 S.E. 450. We have conceded the general rule, as stated in 1 Greenleaf on Evidence, § 449, cited by the prisoners' counsel, as follows: "It is a well-settled rule that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. And if a question is put to a witness which is collateral and irrelevant to the issue, his answer cannot be contradicted, but is conclusive against him." See, also, State v. Patterson, 24 N.C. 346, 38 Am. Dec. 699. In this case, though, Mrs. Foster was impeached by her own admission that she wrote the letter and the very nature of its contents. The letter, therefore, was not introduced to contradict her, but merely to show the bearing of her admission as to its authorship.

The prisoners relied on State v. Holly, supra, but their contention in this respect grows out of a misapprehension as to the scope of that decision. There it was proposed to show by a witness, introduced by the prisoner to prove his good character, that it was rumored Holly had killed his...