State v. Scott

• Decision Date: 14 May 1976
• Docket Number: No. 61,61
• Citation: 289 N.C. 712,224 S.E.2d 185
• Parties: STATE of North Carolina v. Ben Frank SCOTT and Eula Mae Jacobs.
• Court: North Carolina Supreme Court

Page 185

224 S.E.2d 185

289 N.C. 712

STATE of North Carolina v. Ben Frank SCOTT and Eula Mae Jacobs.

No. 61.

Supreme Court of North Carolina.

May 14, 1976.

Rufus L. Edmisten, Atty. Gen. by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

I. M. Biggs, Lumberton, for defendant Ben Frank Scott.

Musselwhite, Musselwhite & McIntyre by Fred L. Musselwhite, Lumberton, for defendant Eula Mae Jacobs.

EXUM, Justice.

Our decision upon defendant Scott's petition for further discretionary review is to reverse the Court of Appeals insofar as it affirmed the denial of this defendant's motion for nonsuit. Upon the State's appeal we affirm the Court of Appeals' award of a new trial to defendant Jacobs.

The evidence for the State, neither defendant having offered evidence, may be summarized as follows:

Eula Mae Jacobs and Wallace Jacobs apparently did not have a peaceful marriage. On occasion he had beaten her. A week before the killing she had taken out a warrant against him. Many times in the past she had expressed an intent to kill him. She owned a .22 caliber pistol which she had practiced firing and also had recently purchased a box of .22 caliber bullets. On June 16, 1974, her practice firing was accompanied by a statement of intent to kill her husband. Most of this evidence was admitted only against defendant Eula Mae Jacobs but its repetition is necessary to understand the case against Ben Scott.

The evidence adduced by the State against Ben Scott may be summarized as follows:

Before his marriage to Andella Scott and before his imprisonment on other charges Ben Scott was a frequent visitor in the home of Wallace and Eula Mae Jacobs. Andella Scott was Eula Mae's niece. Ben Scott had been separated from his wife Andella for several months while he was in prison but on work release. During this period Ben Scott stated, with reference to no one in particular, that 'if he discovered his wife was having an affair with another man, that he would take the lives of both of them.' Andella Scott visited often at the home of Wallace and Eula Mae Jacobs, usually when Eula Mae was present. As Eula Mae did not drive, Wallace Jacobs would usually bring Andella Scott to the Jacobs home and return her. There was testimony that Eula Mae might have tried to get Andella Scott to return to Ben. Before going to prison Ben Scott had once forbidden his wife to visit at the Jacobs home. While on work release, however, he would sometimes visit the Jacobs.

In early June, 1974, Ben Scott was released from prison and began visiting the Jacobs home regularly. One witness testified, 'After the 1st day of June, I saw (his car) over there almost daily. He would sometimes get there about 9:00--10:00 o'clock and he would stay over in the evening. I know that Wallace Jacobs was at work while this was going on.'

One week before the killing Andella Scott went to the Jacobs home while Ben was there. He unsuccessfully attempted a reconciliation, became angry and left.

On June 17, 1974, Ben Scott drove Eula Mae Jacobs to the home of Anderson Locklear in Cumberland Mills. Eula Mae fired her .22 caliber pistol three or four times after getting out of the car. Apparently Wallace Jacobs had just beaten Eula Mae again. Ben Scott stayed just long enough for Anderson Locklear to get Eula Mae's beer cooler out of Scott's car. Locklear noticed two 'long guns' in the back seat of the car. Scott left.

On June 18, 1974, at 2:00 p.m. Dorothy Locklear, a close neighbor of the Jacobs, saw Ben Scott's car at the Jacobs residence. Dorothy Locklear was taking clothes off the line and Eula Mae Jacobs was hanging out clothes. Dorothy Locklear testified, 'After she got through hanging hers out, Ben Frank Scott and Eula Mae Jacobs went running and playing and fell down in the grass at the back of the house. They grabbed each other and fell down on the grass.' Ben Scott's car stayed there all afternoon. All that day from 9:00 or 9:30 a.m. until 4:30 p.m. Lefty Cummings, Eula Mae Jacobs' son who worked a night shift, was sleeping in the Jacobs house. When Lefty woke up at 4:30 p.m. Wallace and Eula Mae were both there. Wallace usually got off work at 4:30 p.m. Lefty went back to bed at 6:00 p.m. after supper. In his pajama drawer he noticed his mother's .22 caliber pistol. Later during the night Ben Scott came into Lefty's bedroom, woke him up and told him that his mother said for him to get up and get ready for work. Lefty left at 11:10 p.m., leaving Ben Scott sitting in a chair, Eula Mae Jacobs lying on a sofa, and Wallace Jacobs sitting in a rocking chair.

At 12:00 midnight Dorothy Locklear, the neighbor, heard five shots but did not get out of bed or look out the window.

At 12:35 a.m. on June 19, 1974, Eula Mae Jacobs and Ben Scott arrived at the Anderson Locklear home in Cumberland Mills. (Driving time by the most direct route from the Jacobs home to Anderson Locklear's is 35--40 minutes at the speed limit.) Ben Scott said, 'Give me them things you got.' Eula Mae handed him six or seven cartridges from her pocketbook. Ben Scott said, 'What about my gas?' Eula Mae gave him two dollar bills and some change. Eula Mae told Scott to take a message to her son Lefty not to go home after work but to go to his Aunt Ida's and to give Lefty the phone number of Mr. and Mrs. Rich, the next door neighbors of the Anderson Locklears where the Locklears received telephone calls. Scott left.

At about 2:00 or 2:15 a.m. Ben Scott appeared at the textile plant where Lefty Cummings was working and gave him Eula Mae Jacobs' message. (Driving time from the Anderson Locklear home to the plant where Lefty worked was approximately 45 minutes.)

At 2:45 a.m. a night operator for Southern Bell in Laurinburg received a telephone call from a pay telephone in Lumberton. (Driving time from the plant where Lefty worked to Lumberton is 40--45 minutes.) A male voice told her to ring the Sheriff's office and tell him to go to an address in Pembroke where they would probably find a dead man. The operator could not remember the address. The caller would not stay on the line while the operator rung the Sheriff.

At 3:09 a.m. Ben Scott was seen in a pay telephone booth in Lumberton with the receiver at his ear. At 3:10 a.m. the dispatcher at the Robeson County Sheriff's Department received a telephone call from an unidentified male. The caller said, 'I got something I want to tell you. Listen to what I got to tell you. I'm only going to say it one time . . .. Go to Wallace Jacobs' residence in the Pembroke area, there's been a break-in at that house and you will find the lights out in the house and the doors locked. There will be a screen torn out in one of the back windows and there is someone hurt.' The dispatcher asked him how he knew. The caller said, 'Never mind. Just take my word.' When the dispatcher asked who was calling the caller hung up.

At 3:30 a.m. Sheriff's Deputies Honeycutt and Locklear arrived at the Jacobs residence. One window screen, bent from the inside out, was found on the grass. The window was raised. They entered the house and found Wallace Jacobs nude and dead from two gunshot wounds of undetermined caliber. At 4:15 a.m. Deputy Sheriff Stone arrived. Several bullet holes were found in the house and one spent .22 caliber bullet. A box of .22 caliber bullets was found in what was apparently Eula Mae's bedroom. Although an air rifle was lying on the deceased's arm and there was a box of pellets in the deceased's left hand there was no blood on the rifle or pellet box. The deceased's left palm was bloody.

At 6:00 a.m. Lefty Cummings returned from work. The .22 caliber pistol was no longer in his drawer.

Between 11:00 and 11:30 a.m. that morning of June 19, 1974, Ben Scott came to the Anderson Locklear home. Annie Jane Locklear asked if he knew Wallace Jacobs was dead. He said 'No' and 'the last time he seed him was setting in the chair with his feet on the hassock.' Annie persisted, 'Who killed him?' Ben Scott said, 'I don't know.' Annie asked about his wife, and Ben Scott said 'Andella would call Aunt Eula and make an appointment to go over and Wallace would pick her up and Wallace would take her home; that they were too close.'

Around noon on June 19 Ben Scott and Eula Mae Jacobs were both in the Anderson Locklear home. While asking Eula Mae about her husband's death, Annie Jane Locklear mentioned lawyers. Ben Scott then said to Eula Mae Jacobs, 'Come on, I will carry you to the lawyer's office.' He helped her to the car and they left.

Ben Scott was arrested on June 20. While in custody he was visited by Eula Mae Jacobs' daughter, Connie Cummings. She asked him whether he killed Wallace. He said, 'No, I didn't.' She then inquired whether he had been at Wallace Jacobs' house at 2:00 a.m. on June 19. After first denying it he said, 'Oh, yes, I did go over there, too.'

Two gloves were found in Scott's car the day of his arrest. There were no fingerprints on the window screen of Jacobs' house. Scott's explanation for the gloves was that he worked in a chicken plant. The gloves had no blood or foreign substance on them.

I

In our opinion the evidence is insufficient to withstand defendant Scott's motion for nonsuit. The rules for determining the sufficiency of evidence when such a motion is lodged were recently restated in State v. Hankerson, 288 N.C. 632, 636, 220 S.E.2d 575, 580 (1975): '(W)e consider all of the evidence actually admitted . . . in the light most favorable to the State, resolve any contradictions and discrepancies therein in the State's favor, and give the State the benefit of all reasonable inferences from the evidence.'

Viewing the evidence in this light the jury could reasonably infer that Eula Mae Jacobs intended to kill her husband, made preparations to do so, harbored both longstanding and fresh grievances against him, and, so motivated, actually shot him to death. As to defendant Scott the evidence is far less convincing....