Appeal
from Superior Court, Mecklenburg County; J. A. Rousseau
Judge.
Tommie
Walls was convicted of burglary in the first degree, and he
appeals.
No
error.
Jury
may not invade province of judge in rendering judgment upon
their verdict. C.S. § 564.
The
defendant was indicted for burglary, under C.S. § 4232.
Peter
S. Gilchrist, Jr., a witness for the State, testified, in
part: "I know the defendant, Tommie Wall, when I see
him; on or about the early morning of 2nd of September, I saw
him on the second floor of my father's home, at 320 E
Park Avenue, Charlotte. It was between the hours of 3:30 and
4:00 a. m., in the night-time. I was awakened about 3:30 by
hearing a noise on the second floor of my father's home
and I looked out of my bedroom door and I could see a figure
moving in a room that was joined to my room by a small back
hall. I listened and heard a figure in there moving and
opening and closing bureau drawers, and I looked in the door
and saw a figure standing at a bureau, and I ran in and got
him from behind at the same time calling to my father, who
was asleep on the same floor, to come to my assistance. I
threw the man I had caught from behind, to the floor, and he
was armed with a knife, and he cut me with it on the hand and
scratched me across the stomach and then he stabbed me in the
right leg. We fought on the floor for several minutes, and I
obtained possession of the knife, and threw the man from me
and I had a chance at that time to see his face in the bright
moon-light that was streaming through the window. About that
time my father came in and asked me what was wrong and I said
there was a man there, and he had an opportunity to see his
face too in the bright moon-light. I asked my father to go to
the telephone on the landing between the first and second
floors and phone for the police. He went down to telephone
and turned on the light half way between the first and second
floors, while I stood upstairs and held this man at bay,
which amounted to nothing more than him standing there beside
me. When my father turned on the light I had an opportunity
to see his face again. My father returned to the second floor
because he had forgotton his glasses and was unable to
telephone. Just as he reached the top of the stairs this man
pushed me to one side and ran down the stairs to the first
floor and to the rear of the house where he left the house by
means of an opened back window. I followed him through the
back door and out through the back gate, down the alley to
the next corner; we live two houses from the corner and I saw
him under the street light again but was unable to get him
because of loss of blood. I returned home and dialed the
police for an ambulance and the police arrived within five
minutes. I would say approximately five minutes after I had
dialed police arrived, before the ambulance. They asked me
which way this man had gone and what his general description
was, which I gave them, and then the ambulance arrived and
carried me to the Presbyterian Hospital. Later, I would say
15 to 25 minutes later the police brought a man over to the
Hospital where I identified him from his face and also from
the fact that he had blood on his right hand and his trousers
were spattered with blood. My father at this time identified
him also, in my presence; this defendant Tommie Walls is the
man who was in my father's house. The house had been
closed up before we went to bed that night, windows down and
doors locked; when the man ran out of the house the rear
kitchen window was up, open. The defendant went out that
window; I went out the door. I was sleeping in the house that
night and was asleep when awakened by the noise of someone in
the house; my father was also asleep in the house and my
mother and nurse were also on the same floor; that is the
home of my father Peter S. Gilchrist, Sr., and I live with
him, and my name is Peter S. Gilchrist, Jr. (The State
offered in evidence the knife). * * * He was standing facing
me on the second floor while the light was on at the landing;
while my father was going down he turned the light on and I
had a chance to see his face on the second floor from the
light of the landing half way between the two floors. * * * I
found the knife you hand me in the possession of the man I
caught in the house that morning. I did not pick it up in the
room but obtained it from the man himself in the dark; I did
not see the knife until I returned to the house. There was
blood on the knife. * * * I was in the hospital about two or
three days, and then in bed at home for another week. When
father came to my rescue he got within two or three feet of
the man in the room, close enough to have laid hands on him;
at that time I had already gotten the knife away from him. I
do not know whether my father put his hands on the man or
not, I turned in the knife to the police that morning."
Peter
S. Gilchrist, Sr., corroborated the testimony of Peter S.
Gilchrist, Jr.
Mr.
Bridges testified, in part: "I saw the defendant Tommie
Walls on the morning of 2nd just a little after 4
o'clock, eight or ten blocks from the Gilchrist home and
he was going North away from the Gilchrist home; he had on a
brown shirt, brown mixed pants and was bareheaded and his
hair sorter slicked back, but I could not say what with; it
was not in the same condition it is now but was flat on his
head. I stopped him and we asked him where he had been and he
said to the fertilizer plant to see his father. He told us
that he had been to the fertilizer plant to see his father
and we took him in custody and took him back to Mr.
Gilchrist's home. Chief Joyner was there and I took him
to Chief Joyner and we took him to Mr. Gilchrist, the old
gentleman, and he looked at him, and I do not know what he
said and Chief Joyner told me to take him to the Station, and
I started to the Station with him and got a message on the
radio to take him to the Presbyterian Hospital, and I had him
handcuffed to my arm and took him to the Hospital and let
young Mr. Gilchrist and his father both see him. When we
picked up Tommie Walls I noticed there was blood on the front
of his pants and in his right hand; it was fresh blood. The
only fertilizer plant I know about is in the other end of the
city; the way he was going would be towards the fertilizer
plant in the Eastern part of the city. Mr. Gilchrist, Sr.,
identified him as being the one that was in his home. * * *
At the time we arrested Tommie Walls there was a bright moon
shining, just as light as could be; we did our driving with
the lights off, moonlight so bright we did not need the
lights on the automobile."
C. L.
Sykes testified, in part: "I was with Mr. Bridges when
we arrested Tommie Walls on the morning of September 2nd,
1936. I first saw him at the corner of E. Morehead and S.
McDowell; he was going North and away from the Gilchrist
home; it was a very light night; the moon was shining very
bright; we did not have the lights on our car. * * * When
arrested there was blood on defendant's pants and on his
right hand; there was a cut place on his right hand but at
that particular time it was not bleeding and I could not say
it looked like a fresh cut; there was blood on some parts of
his right hand, the one that was cut; I do not recall as to
any cut between the middle fingers."
The
defendant denied his guilt, and testified, in part: "It
was not me that young Mr. Gilchrist attacked in the room of
his home; I did not cut him with any knife and the first time
I ever saw this knife was when they had it in the finger
print room and tried to make me take it. I had some blood on
my finger when arrested but did not have any on my pants. The
blood on my hand came from a cut on my finger right here, my
middle finger; I cut it on a beer can when I laid it on the
table at the beer garden on the corner or between Davis and
Caldwell. When I was there that boy right there, Partee, was
there too and his brother-in-law and cousin Lawrence Maley.
At that time Maley worked at a Cafe but I do not know where
he is now. I left Brevard Street to get me a drink of liquor.
I drank some liquor at the beer garden, a full pint and a
half pint; I drank the pint at the Cafe and the half pint at
the beer garden; then I went down on S. Brevard to
Littlejohn's house on the other side of Hill Street
Littlejohn is a colored man and his place is almost right
across from a laundry and there is a Church on the right-hand
side from it across the street from the laundry. I do not
know what Church that is. When I left the beer garden it was
between 12 and 1 o'clock and I was drunk and when I came
to myself I was sitting in front of the Church on the steps.
I do not know what time I went there but I spent the night
there sitting right on those steps; when I left there I went
on the other side of Brevard and turned left and came out on
East Morehead; I had started home; I turned left down
McDowell and went North and when the officers got me I was
going North on McDowell Street, and I went that way until the
officers got me; from where I woke up I went up S. Brevard to
East Morehead and down East Morehead until I hit McDowell. I
had not been to the Gilchrists, and I did have a hat and the
one you have in your hand is the hat I had when the officers
arrested me and that I had on when they carried me before Mr.
Gilchrist on his porch. I have had it ever since, while in
jail and down at the State Prison. * * * I have been in
trouble before, The picture you show me is a picture of me
made here in Charlotte and my hair was cut when it was made
and it was like that picture when they accused me of going in
the Gilchrist home. * * * The picture...
