State v. Watkins

• Decision Date: 29 April 1931
• Docket Number: 242.
• Citation: 158 S.E. 393,200 N.C. 692
• Parties: STATE v. WATKINS.
• Court: North Carolina Supreme Court

158 S.E. 393

200 N.C. 692

STATE v. WATKINS.

No. 242.

Supreme Court of North Carolina

April 29, 1931

Appeal from Superior Court, Wake County; Sink, Special Judge.

Gordon Watkins was convicted of an assault with a deadly weapon, and he appeals.

New trial.

Giving instruction that assault when made with instrument such as pair of handcuffs would constitute assault with deadly weapon held error under evidence.

Criminal prosecution tried upon the following bill of indictment "The jurors for the State upon their oath, present, that Gordon Watkins, Vance Mangum and Swannie Council, late of the County of Wake, on the 26th day of July, in the year of our Lord, 1930, with force and arms, at and in the County aforesaid, unlawfully, wilfully and feloniously did kill and slay Willie Bellamy, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

Gordon Watkins, Vance Mangum, and Swannie Council were supervisor tractor driver, and guard, respectively, of Prison Camp No 5, Wake county, and Willie Bellamy was a prisoner assigned to work at said camp under a mittimus from the city court of Raleigh.

The evidence is in sharp conflict as to the character of treatment accorded the deceased by the defendants who had him in custody while a prisoner assigned to work on the public roads of Wake county. The state contended that Bellamy's death resulted from working him in the hot sun, while sick without adequate food, and thereafter confining him in a sweat box for disciplinary purposes. He died at St. Agnes Hospital, 11:30 p. m. Saturday, July 26, 1930. The cause of death was stated by the attending physician to be, "Heat prostration with convulsive seizures, producing acute congestion of brain. Contributing cause, excessive hot weather."

Willie Bellamy was a large colored man who weighed about 175 or 180 pounds. The evidence tends to show that he was unruly; sullen; impudent; declined to work; refused to obey orders; and that he tried to assault the defendant Watkins.

At the close of defendants' evidence, the state called two witnesses in rebuttal, one of them Ed. Perry, a fellow refractory prisoner, who testified that, when the prisoners came into the camp from their work at the end of the half day, noon Saturday, July 26, Willie Bellamy "tried to drink some water from the wash basin (provided for bathing purposes). Capt. Gordon (Watkins) knocked it out of his hands and asked him what he was trying to do. He hit him on the nose with a pair of handcuffs. They carried him to the dark cell and I did not see him any more." Cross-examination: "Capt. Gordon (Watkins) hit him on the nose with handcuffs."

All the witnesses for the defendant, who were present at the time, denied that the defendant struck the deceased with his handcuffs. The only mark on the body of the deceased was a slight abrasion on the nose, which H. P. Thompson, witness for the state, thought was caused by a protruding plank in the solitary confinement cell. He said: "It stuck out about an inch and his nose was resting on that, and it looked like that was what might have caused it." It is not contended that the blow on the nose with the handcuffs, if made, caused Bellamy's death or contributed thereto.

The court instructed the jury that "an assault, when made with an instrument such as a pair of handcuffs, would constitute in law an assault with a deadly weapon." Exception.

Verdict: Not guilty as to Vance Mangum and Swannie Council. Guilty of "an assault with a deadly weapon" as to Gordon Watkins.

Judgment: Imprisonment in county jail for a term of six months.

The defendant, Gordon Watkins, appeals, assigning errors.

John W. Hinsdale, Percy J. Olive, and J. C. Little, all of Raleigh, for appellant.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, C.J.

The question of assault with a deadly weapon was not the principal matter debated on the hearing, but rather the charge of manslaughter, the main contention of the state being that Bellamy's death resulted from criminal neglect on the part of the defendants.

The only evidence to support the verdict "guilty of an assault with a deadly weapon" is the bare statement of Ed. Perry (repeated on cross-examination) that the defendant, Watkins, hit the deceased on the nose with a pair of handcuffs. There is no description by the witness of the size of the handcuffs, whether large or small, nor of their weight, whether heavy or light, nor of their character, whether of metal, leather, or rope, nor of the manner of their use, whether a light, glancing, or full-faced blow was struck. Nor were the handcuffs themselves offered in evidence. It is not contended that the assault with the handcuffs caused the death of the deceased or contributed thereto.

In this state of the record, we think his honor erred in instructing the jury that "an assault, when made with an instrument such as a pair of handcuffs, would constitute in law an assault with a deadly weapon." State v. Smith, 187 N.C. 469, 121 S.E. 737.

Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. State v. Craton, 28 N.C. 165 at page 179. But where it may or may not be likely to produce such results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. State v. West, 51 N.C. 505. "Where the deadly character of the weapon is to be determined by the relative size and condition of the parties and the manner in which it is used," the question is for the jury. State v. Archbell, 139 N.C. 537, 51 S.E. 801; State v. Norwood, 115 N.C. 789, 20 S.E. 712, 44 Am. St. Rep. 498; State v. Huntley, 91 N.C. 621. "If its character as being deadly or not, depended upon the facts and circumstances, it became a question for the jury with proper instructions from the court." State v. Beal, 170 N.C. 764, 87 S.E. 416, 417. See, also, State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Phillips, 104 N.C. 786, 10 S.E. 463; State v. Porter, 101 N.C. 713, 7 S.E. 902; State v. Collins, 30 N.C. 407.

There are other exceptions appearing on the record worthy of consideration, but, as they are not likely to arise on another hearing, we shall not consider them now.

New trial.

CLARKSON J. (dissenting).

The evidence against the defendant was to the effect that the defendant, with Vance Mangum and Swannie Council, was brought to trial upon an indictment in the ordinary form for the homicide of Willie Bellamy. The solicitor asked only for a verdict of manslaughter against these defendants. Upon this charge the jury acquitted Vance Mangum and Swannie Council and convicted Gordon Watkins of an assault with a deadly weapon.

C. S. § 4639, is as follows: "On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character." State v. Hunt, 128 N.C. at page 586, 38 S.E. 473; State v. Williams, 185 N.C. at page 688, 116 S.E. 736. The defendant was convicted of "an assault with deadly weapon." This has been permissible since Acts of 1885, chap. 68, which is C. S. § 4639, supra, if the evidence shall warrant such finding--which is not questioned in this case.

The defendants all had charge of the convicts, sentenced to work upon the public roads of Wake county, either as guards or otherwise. The state's evidence tended to show that the defendant, Willie Bellamy, was sentenced to work upon the public roads and was assigned to work at camp No. 5. He was carried to this camp the afternoon of Monday, July 21st, and was put to work the following morning. The weather was hot and Bellamy, though a stout-appearing man, was evidently unaccustomed to hard labor in the hot sun. In consequence of his failure to work properly on the outside, he was given only bread and water for his supper that night and the same thing for breakfast Wednesday morning. On Wednesday he was brought back to the camp from working on the roads about noon, and the county physician, Dr. R. W. Wilkinson, was called to see him. The doctor prescribed certain medicine and advised that he be kept in the next day. Friday morning he was carried out to the roads to work, and when brought in that night ate the usual rations. Watkins, the defendant, inquired about this and said that Bellamy did not work much and then put him in the sweat box. The next morning, Saturday, he was given only bread and water and carried out to work, notwithstanding Dr. Wilkinson had told them to be easy with him the next few days, according to the defendant's own admission. The defendant, on cross-examination, testified: "Although the doctor had told me he was mighty hot and very tender I put him in the sweat box with shackles on and the chain locked down to the staple on the floor. Blankets were in there, but I did not see if he could reach them for that was the steward's job. I have never made the statement that his hands were not locked behind him on Friday night. On Saturday morning I took him from the dark cell and gave him his hands. He went out Saturday morning and worked about two hours and about ten o'clock I went down to where he was and found him lying in the shade. I knew he was the man who Dr. Wilkinson...