Appeal
from Superior Court, Wilkes County; Ferguson, Judge.
Grover
Walker and Lone Walker were convicted of secret assault, and
Lone Walker appeals. Affirmed.
Where
there is any substantial evidence showing commission of the
offense, the matter should be submitted to a jury.
Jesse
Fairchild, a witness for the state, testifying to the
occurrence, said: "On the night of November 13, 1907
between 11 and 12 o'clock, I was waked up by the roar of
guns. Shots were being rapidly fired into the house. There
were some 40 or 50 shots fired. They were shooting through
the window toward the bed occupied by W. A. Fairchild. The
room was occupied by W. A. Fairchild, Mrs. Fairchild, Mrs
Walker, grandmother of the defendant, and Jesse Fairchild. I
got up, crawled to the bureau in the room. Just as I put my
hand in the drawer to get some shells to load my gun, I was
shot through the arm by a pistol ball. [Witness produced the
ball No. 38.] While the shooting was going on, Mrs. Walker
says: 'Grover, get away from here.' The firing up to
that time had been through the window toward the bed occupied
by W. A. Fairchild, the shots taking effect in the foot and
head of the bed. After Mrs. Walker spoke to them, they began
firing toward the bed occupied by Mrs. Walker. The shots were
all fired very rapidly, and too fast, in my opinion, to have
been fired by one person. The firing continued for something
like 15 minutes. The pistol was fired four or five times. The
gun fired about 50 times; shots taking effect in the house
and the windows. I saw some one walk up to the window who I
took to be Grover Walker. I raised my gun to fire. He saw me
and raised his. I fired just a little first. Then his gun
fired. He dropped his head and walked around the chimney.
Another shot was fired from the outside. Then the firing
ceased. I do not know whether that shot hit the house or not.
I did not hear it hit. Next morning I went out. I traced
blood from the window around the chimney to a pile of rock.
There I found that the man had fallen over the rock pile.
From the rock pile I traced blood to a pile of sticks. There
was blood on the sticks and every evidence that indicated
that he had fallen there. I traced blood on to a thorn bush.
Evidence that he had run into the bush. From the bush I
traced him to the fence, where the path crosses leading to
the home of Jim Walker, father of the defendant. I saw no
traces of blood beyond the fence."
W. A
Fairchild, for the state, gave substantially the same
account, stating, further, that about a month before the
occurrence, in hunting the woods for bees, he had found
defendant, Grover Walker, working in a blockade distillery
and reported it, and three or four days before said defendant
passed witness's home, cursed witness, and said he would
kill him. He further testified that some 40 or 50 shots were
fired in rapid succession from a shot gun and pistol, and too
close together to have been fired by one person; and,
further, that next morning they found in the yard two piles
of empty shot gun shells No. 12, about two feet apart, and
also four or five empty pistol shells near the same place.
Jimmie
Poach, for the state, testified: "On the night of the
13th of November I was at the house of Jim Walker. Jim Walker
came into the room where I was sleeping, waked me up, told me
that Grover Walker was very badly shot, between 12 and 1
o'clock. I went into the room, found Grover there with
one eye shot out, several shots in his face and in his
shoulder."
John
Parlier testified: "I am a merchant living in Caldwell
county. On the evening of November 13th Lone Walker came to
my store, and bought 4 boxes of shotgun shells-two No. 12 and
two No. 16. He asked me
to go down to his home. He lived about a quarter of a mile
from my store, and about six or seven miles from W. A.
Fairchild. I went down to his home, found Grover Walker
there, saw Grover have pistol No. 38. I left them both there
together between 8 and 9 o'clock. Lone Walker, a short
time before this, had been suffering with a carbuncle on his
neck, and had had a doctor with him."
The
doctor testified that on the following day he was called in
to see defendant, Grover Walker, and found one eye shot out.
It further appeared that defendants were brothers.
Grover
Walker did not resist verdict. The defendant Lone Walker
requested the court to charge that there was not sufficient
evidence to warrant a verdict against him. Declined, and
defendant Lone Walker excepted. Verdict of guilty against
both defendants. Judgment, and defendant Lone Walker excepted
and appealed.
Finley & Hendren and J. A. Holbrook, for appellant.
Assistant
Attorney General Clement,...
