State v. Swann, 743

• Decision Date: 13 December 1967
• Docket Number: No. 743,743
• Citation: 272 N.C. 215,158 S.E.2d 80
• Parties: STATE of North Carolina v. Willie SWANN.
• Court: North Carolina Supreme Court

Page 80

158 S.E.2d 80

272 N.C. 215

STATE of North Carolina v. Willie SWANN.

No. 743.

Supreme Court of North Carolina.

Dec. 13, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn, for the State.

C. C. Malone, Jr., Durham, for defendant appellant.

PARKER, Chief Justice.

When defendant appealed to the Supreme Court, the Presiding Judge found that he was an indigent and allowed him to appeal In forma pauperis. The court entered an order directing that the County of Durham furnish defendant's attorney a copy of the transcript of said trial; that the record in this case and the brief of defendant's counsel be mimeographed under the supervision of the clerk of this Court under the rules of this Court; and that the County of Durham should pay the costs of such mimeographing, thus giving this indigent defendant the opportunity to perfect his appeal and present his case to this Court in the same fashion as if he were a rich man.

The State introduced evidence; the defendant offered no evidence.

Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of the State's evidence.

The State's evidence, considered in the light most favorable to it and giving the State the benefit of every reasonable inference deducible therefrom, 2 Strong's N.C.Index 2d, Criminal Law, § 104, tends to show the following facts:

The deceased, Bee James, lived in a small house in the southern part of Durham County, the equivalent of about four and a half city blocks from King Scott Road--a main highway. The terrain was level from the highway to the house, and the house could be seen from the road. Bee James's house had an enclosed porch, and located on the right side of the porch was a small place where he sold groceries and merchandise.

Bruce Overby, a salesman of candies, crackers, peanuts, etc., arrived at Bee James's house with his truck from which he sold groceries direct about 11 a.m. on 20 May 1964. He carried groceries in to the enclosed porch and talked with Bee James. He observed three hams on a table on the left side of the porch. A colored man wearing overalls and light brown or tan shoes was there seated in a chair just inside the room. He could see his hands but did not see his face. This colored man was the only other person there. Overby remained at the residence about thirty minutes. He stated the deceased told him that 'there was a man there then to take the hams with him.' He observed a 1953 Ford Ranchwagon parked directly in front of the door about eight or ten feet from it. All the wheels of the Ranchwagon were of a different color and the Ranchwagon itself was a light green color. When he left, Bee James was alive and in good health, the three hams were still on the table, and the Ranchwagon was still there directly in front of the door. Later, he saw this Ranchwagon on Ellington's used car lot. He went down to this lot with Deputy Sheriffs O'Briant and Leary on Friday following the Wednesday that he was at Bee James's house. The Ranchwagon still had different color wheels on it. It appeared that something greasy had been inside the car; there were greasy fingerprints on the tailgate of the car.

Herbert Barbee lived on King Scott Road with his sister and on 20 May 1964 was sitting on the porch of her house, a distance of about two city blocks away from the home of Bee James. He has had two strokes of paralysis. While sitting on the porch he heard some unusual sounds between 11 a.m. and noon coming from the direction of Bee James's house. It sounded like somebody was unloading some irons. Then he heard some hollering. After he heard the noises, he saw a light colored station wagon come out from Bee James's house, and he could see that the driver was a colored man. He saw no other automobile leave James's house except the station wagon. He did not see a truck or car of any kind go in or out of Bee James's driveway except the station wagon. He could hear the hollering, but he could not understand what was said. He reckons this went on for about thirty minutes. He heard this noise before he saw the station wagon leave.

L. J. Coleman, Sr., went to the residence of Bee James about 3:00 or 3:00 p.m. on 20 May 1964 to borrow a mule to plow some corn. He observed smoke coming out of the house. He opened the screen door and saw Bee James dead with his head burst open and his clothing burning. He went in the front door into the living room and into the bedroom. He observed the bed was on fire, and an empty five-gallon oil can was on the middle of the bed. The bed was on fire and smoking, but he saw no flames.

Walter C. Young, a deputy sheriff of Durham County, went to Bee James's house about 4:20 p.m. on 20 May 1964, in response to a call he received that there was a fire at Bee James's house. He did not know Bee James until that day. When he arrived he found Bee James lying flat on his back on the porch with his head burst open and his clothing burned practically off. The remnants of the clothing remaining on his body were still burning. Bee James was making no sound of any kind when Young saw him. Smoke was coming from the bedroom. The mattress from the bed inside the house had been removed and pulled out the back door by firemen who were there. There was an empty five-gallon oil can in the bedroom. He saw the body of Bee James moved from over a hole in the porch. He observed a ham lying on the table on the porch. At the end of the porch there was something like a concession stand which contained knickknacks, such as potato chips, canned goods, sardines, etc. This concession stand was about five feet from the dead body. He saw no disturbance of merchandise nor signs of struggle in the concession area. He saw no signs of struggle at all.

D. R. Perry, a physician and medical examiner for the County of Durham for the past six years and stipulated by counsel to be a licensed physician and a medical expert, went to Bee James's house and examined him about 5:30 p.m. on 20 May 1964. When he arrived on the scene, Bee James's body was lying on the floor just inside the door of the enclosed porch of the home. He was dead when Dr. Perry arrived. There were four wounds on the right side of his head. Two or three were scalp wounds down to the bone, and one went through the scalp into the brain which caused his death. In his opinion, Bee James was unconscious after receiving this blow and probably died five to ten minutes later. In his opinion, after receiving the wound Bee James may have been able to moan, but he could not have called any name and wound not have been conscious of what he was saying or doing. When he arrived there was a hole burned in the floor under Bee James's hips about eight by twelve inches wide, and the body had been burned. From the position of the body and the condition of the room inside the house he was of opinion that the burning was accomplished after the wounds were inflicted. He also testified that Bee James's death occurred two and a half hours before he arrived.

Edna Cole lived at the same address as the defendant on 20 May 1964. She has known defendant for a period of ten or fifteen years. She first saw defendant on that day at her brother's house about 8:30 a.m. when he took her to her mother's house to get a uniform to go to work. Defendant was driving a Ford station wagon of a light green color. She did not notice the color of the wheels. She does not recall what defendant was wearing. Defendant left her...