State v. White
| Decision Date | 23 May 1905 |
| Citation | 51 S.E. 44,138 N.C. 704 |
| Parties | STATE v. WHITE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; Cooke, Judge.
Thomas J. White and another were convicted of murder in the second degree, and appeal. Affirmed.
Where the evidence in a prosecution for murder permits a consideration of manslaughter, the prisoners are entitled to have it submitted under a correct instruction, but failure to do so is not reversible error where a conviction of no lesser crime than murder in the second degree is warranted.
The eyewitnesses to the transaction were Mrs. A. E. Sherrill mother of deceased, and the prisoners, Thomas J. White and Chalmers L. White, and their direct testimony is here set out:
Mrs Sherrill, mother of deceased, testified for the state "Chal and Tom White came there very early in the morning, before I got up. It was before sunup. They came from the south. I did not see them come, but they hitched their horses on the south side of the railroad that goes in south. They were in a two-horse buggy, driving two horses. I did not know them when I went to the door. I had seen them often but, as I say, I did not know them. The prisoners came up from the left side of the house, on the west, I might say, of the front side. They hitched their horses to a post, I suppose. Can't say whether they were hitched or not. This post was about 50 yards, or a little further, from the house or porch. The porch is on the north side of the house. Its width I do not know. I have never measured it. Its length is about 12 or 15 feet, I guess. I do not know. It is an old-fashioned piazza, with wide door, and latticed around. On the morning of September 17th I was in my room, and heard some one knock at the front door. I stepped in the front room to the window, and called to them that I would be down in a few minutes. I stepped back and dressed, opened the door, and saw two strangers. They said to me, 'We want to see Russell.' I said he was asleep, and then they asked me to tell him to come down--said they didn't want to see me and to tell him some gentlemen wanted to see him. Russell said, 'Who is it?' And I said: I went down myself, and stepped into the back hall, on the front porch, and stood there until Russell came down. When he came down I stepped back, and stood about midway the door. They said to me, 'You stay back, and we will see you later.' I did not do it. I stepped immediately to the front door, near my son. Two pistols were drawn on my son in this way [indicating pistol pointing on each side]. They then said: Russell said: They said: 'You did ruin her, and you will marry her, or we will kill you before you leave our sight.' I stepped between them and begged them not to kill my son. I told them, if they could not spare him for his own sake, then for mine, at least. I turned to the brothers, and they said, one of them, 'I am deaf;' and then one said: I stepped inside the door, and they again said, "You go back, or we will kill you.' And my son said, 'Go;' and I said, 'I will go.' The deaf man followed my son, and kept him from going into the door. They said, 'You will go with us;' and Russell said, 'I do not love her, and I cannot do it.' Two pistols fired immediately, and he fell. He fell straight back, with his head towards the west--towards the bench that he had been sitting on. Yes; when I went to the door he was seated on the bench. That bench was right along on the west side of the porch, and he was seated here [indicating] on the bench, at the west end of the porch. The bench was about five feet long. He was about midway the bench--about the middle of the porch. The bench was sitting one end back against the lattice. They were talking to me then--both pistols drawn on Russell. That's when they said: They were still talking to him. When he was shot, I do not know whether I fell or sank down, or what I did. I must have gotten up and went to my son to see if he was dead, and spoke to him, and he did not give me any answer. I thought he was dead, and went immediately into the walkway of the yard. These two men just stepped off after they had killed him. My son, when he was shot, got up and came to the door, and would have come in, but they kept him from coming, and pushed him a little to one side, and I saw his hand go up before his face. My son did not have a thing in his hand--not a thing. He threw up one hand. I saw only one hand. Two shots were fired right together, and then a third one. I do not know whether both men shot or not. There were two shots, though, right together, and then a third. My son was hit in the back of the head and in the face. One man was on each side of my son when he was sitting down and when he was standing. They had their pistols then." (Mrs. Sherrill here again takes up the position of the men.)
The prisoners testified that, having heard that their niece had been ruined by the deceased, they went to the home of Mrs Sherrill, where deceased lived, with a view and purpose of inducing him to marry their niece and save the families the disgrace; that they each had a pistol, but there was no conspiracy between them to kill the deceased, and no intention of doing so, but thought they could persuade the deceased to marry the girl. Chalmers White testified in behalf of himself and co-prisoner: "When I left my sister-in-law's I started early, in order that we might find him at home before he would leave. I had information of his probable leaving, and I had another reason for wanting to go early. I wanted it kept as quiet as possible until it was over. It is not more than three-quarters of a mile--possibly a mile, but I do not think over three-quarters. I arrived there, I think, about six in the morning. It was a dark, cloudy morning--a fog and a very dark morning. We hitched our horses out in front of the porch, or out from the house to a hitching post, and then went to the house and knocked, walked upon the piazza, and knocked upon the door. A lady then answered it. My brother took part in the conversation down to my sister-in-law's. He talked, but not as much as I did, and not as long, but he talked with her. Mrs. Sherrill came to the door, and I told her, 'Good morning,' and asked if Russell Sherrill was at home. She said, 'Yes.' I told her I would like to see him on some business. She handed us two chairs. We sat down and waited till he came. Presently he came down. His mother with him. I spoke to him, and introduced myself and my brother. We both shook hands with him, and I told him we wanted to see him on some business privately. He then said to his mother, 'You go back into the house,' which she did. She walked back into the hall, and he stepped back and closed the door. He then walked out on the piazza, to the front end of the porch, and sat down on the bench. We walked up near him, around him, in front of him. I said to him, 'Mr. Sherrill, you are aware of the fact that we came here to make you keep your promise.' He replied, 'I did not do it.' I said, 'You must marry her,' and he said: And I said, 'You can't get out of it that way.' He said: --and sprang to his feet in an angry, threatening attitude. I stepped back and drew a pistol. He said, 'I will marry her,' and I said, 'I am glad of it.' Mrs. Sherrill heard a part of the conversation, and came out into the hall. She said: And I said, 'He has ruined our niece Annie White, and we have come up to get him to marry her.' She said, "Well, do not kill my boy;' and I said, 'I do not want to kill him.' She said, "Let's talk the matter over, and save shame and disgrace.' I told her I would. She sat down on a chair just back of us, and said she was sorry her family had come to this; that she had tried to raise the boy better. I then turned and walked back to where Mr. Sherrill was, and told him to come on and go with us. He then seemed very angry, began to advance, and then said, ...
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