State v. Westmoreland

• Decision Date: 25 May 1921
• Docket Number: 467.
• Parties: STATE v. WESTMORELAND.
• Court: North Carolina Supreme Court

107 S.E. 438

181 N.C. 590

STATE v. WESTMORELAND.

No. 467.

Supreme Court of North Carolina

May 25, 1921

Appeal from Superior Court, Iredell County; Bryson, Judge.

W. P Westmoreland was convicted of murder in the first degree, and he appeals. No error.

In a prosecution for murder, evidence showing that the defendant immediately after the shooting, proceeded to take away the body of deceased and hide it in a well held to show deliberate and premeditated killing.

In a prosecution for murder, evidence showing that defendant left a motorcar in which deceased and state's witness were sitting in front of defendant's house, and went into his house in the dark, and got his pistol, remaining there for a little time and coming to the car and immediately shooting the deceased, held to show that there was ample time for reflection and formation of a definite purpose to kill, and to prove that the murder was premeditated.

This is an indictment against the prisoner for the murder of J. H Nance, which the state alleges was committed under the circumstances detailed in the testimony of its witness, Ivey Sims, the substance of which is hereinafter set forth.

The state's witness, Ivey Sims, and the defendant, W. P Westmoreland, were in Statesville on the night of October 20th, arriving there about 11 o'clock. The defendant persuaded Sims to go with him to his home, which was below Troutman's, in Iredell county, telling him that he (Westmoreland) would hire a car and take him out there to spend the night, and would come back in time in the morning to take a train for Landis, where the witness, Sims, resided. Westmoreland did hire the deceased, Nance, to take them out. A man named Alley went with them as far as Troutman. After Alley had left the car they drove on to Westmoreland's home, and the following occurred, according to the testimony of Ivey Sims:

"Just before he got to the house, I could see the bulk of the house, and the car driver asked Mr. Westmoreland, 'Is here where you live?' and Westmoreland said 'Yes.' The car stopped in front of Mr. Westmoreland's home, right at the gate. When he drove up Mr. Westmoreland started to get out, and I started to get out right behind him, thinking he was going to pay the man and let him go back to town, and he said, 'You and the car driver stay here until I go in the house and see if there is any one at home.' The car driver got out and measured his gas, and he said, 'I have more gas than I thought I had.' He said 'I didn't think I had but a gallon, but I have two gallons.' He got back up in his car and set down under the steering wheel, where he sat to drive his car. At that time I was in the back seat, sitting right behind the driver, where I sat coming down. I laid down in the back seat. I got sorter chilly driving down there, and had dozed off in a sleep, and he waked me up when he come back to the car--Mr. Westmoreland speaking to the car driver. He said, 'Why the man in the back seat is about to go to sleep,' and the car driver turned his head like. The car driver said, 'Yes; I believe he is,' and didn't more than say 'Yes; I believe he is,' until the pistol fired. I raised in the back seat and said, 'What in the world is the matter, Mr. Westmoreland?' He had the gun up that way (illustrating) and cut his eye over toward me, and never spoke, and leveled his gun and shot the man in the head again. I did not see the first shot fired. I heard it. That woke me up. I raised up then. When he fired his second shot the driver was sitting in his car in that position (illustrating) like he was looking down into the foot of the car. That was the second shot. I then stepped out of the car on the opposite side from where Mr. Westmoreland was standing. I stopped there side of it, and was scared so bad I didn't know what to do, or what to say, or what to think; and he said, after he shot him, 'That is what I having been wanting to do for a long time.' He was sticking his gun back in his pocket, and gave me orders to get up in the car and pull the man over the front seat, and he stepped up in the front seat, and I stepped up in the back seat, and was slow about taking hold, and he told me again, he said, 'Take hold, and let's get him in the back seat,' and he caught hold of the man under his legs, that way, (illustrating), and lifted him up, and some change fell out of his pocket, and he went through his pants pockets and searched them. I don't know how much money he got; anyway, he got some, and stuck it in his pocket, and he found a gun on the seat or in the man's pocket one, and he said, 'That is what he has been toting for me,' and stuck it in his hip pocket, and he said 'Pull up on the man,' and I pulled up, and he lifted him, and we had him laying over the car something like that (indicating), and he gave him a throw, and throwed his legs in the foot of the car. I had to jump up on the back seat to keep him from falling on me, and he stepped out of the car and pushed his feet up in the car and shut the door, and said to me, 'You get in the front seat here, and ride with me.' I stepped out of the car and got in the front seat with him, and he cut the car around and started back up the road, where he come in toward the main road, and I said to him after he started, 'What in the world are you going to do with the man, Mr. Westmoreland?' He said, 'You keep your mouth shut, and don't you say anything.' "

The prisoner denied that he killed Nance, and alleged and testified that Ivey Sims was the guilty party. We need not state any more of the testimony, as it is only necessary to show that there was evidence on the part of the state to support the verdict, as we are not weighing it, that being the province of the jury.

The prisoner was convicted of murder in the first degree, and from the judgment appealed to this court. The prisoner assigned 15 errors; the first 3 were abandoned, the fourth, fifth, sixth, and seventh will be hereinafter set forth. The eighth, ninth, tenth, eleventh, twelfth, and thirteenth, will be discussed in the opinion without being set out in full, and the fourteenth and fifteenth are merely formal. The following objection to evidence and rejected prayers are those we deem it proper to state in full, and numbered 4, 5, 6, and 7:

"4. The court erred in permitting the state to introduce or offer in evidence the coat and trousers of the witness Ivey Sims.

5. The premeditation and deliberation necessary to constitute murder in the first degree must precede the killing. Acts and conduct of the defendant after the killing are not to be considered as evidence of premeditation and deliberation. If you find from the evidence in this case that the defendant shot and killed the deceased, and afterwards moved or caused him to be moved in the car, and loose change fell from his pockets, and later, that the defendant searched the pockets of the deceased and took therefrom money, watch, and other articles of personal property, such acts would not be evidence of premeditation and deliberation, and you will not consider them as such.

6. The court further charges you that the fact that the deceased was put in a well, if you find such to be a fact from the evidence, is not evidence of premeditation and deliberation, and the jury will not consider such act as evidence of premeditation and deliberation.

7. The court further instructs the jury that if you find from the evidence that the defendant later took the car of the deceased and ran away with it, and was later arrested at Newton, and was found with articles of personal property, watch, or any other property belonging to the deceased, such facts and circumstances would not be evidence of premeditation and deliberation, and the court instructs you not to consider them as such."

Z. V. Turlington, of Mooresville, and J. H. Burke, of Taylorsville, for appellant,.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The six exceptions to the charge of the court were taken to that part of it which consisted in the statement by the court of the contentions of the state. We have examined these several instructions with a view of determining if the defendant could have been in any degree prejudiced by the manner in which the contentions were stated, and we have found nothing objectionable in them, but, on the contrary, they were exceedingly fair and impartial. The prisoner's contentions were stated in the same way, and nothing was said, or omitted that could have prejudiced him in the least. These exceptions from No. 8 to No. 13, both inclusive, come within the well-settled rule of the court, that objections to the statement of contentions must be made promptly, so that they may be corrected. The latest cases on this subject are State v. Hall (at this term) 106 S.E. 483; McMahan v Spruce Co., 180 N.C. 636, 105 S.E. 439; Hall v. Giessel, 179 N.C. 657, 103 S.E. 392. There was not the slightest intimation of opinion by the judge, and the prisoner has not, in law, been harmed by anything he said. This disposes...