State v. Williams

• Decision Date: 02 May 1945
• Docket Number: 505
• Parties: STATE v. WILLIAMS.
• Court: North Carolina Supreme Court

33 S.E.2d 880

225 N.C. 182

STATE v. WILLIAMS.

No. 505

Supreme Court of North Carolina

May 2, 1945

The appellant, Mozelle Williams, and one DeWitt Tate were tried upon a bill of indictment charging them with the murder of Frank Porter, upon which, however, the solicitor for the State announced that he would not ask for a verdict of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree or of guilty of manslaughter as the evidence might warrant. The jury returned a verdict of guilty of manslaughter as to both defendants and from judgment of imprisonment, predicated on the verdict the defendant Mozelle Williams appealed, assigning errors.

G. T. Carswell, of Charlotte, for defendant-appellant Williams.

Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes and Ralph M Moody, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The evidence tended to show that Frank Porter, the deceased, and his common-law wife, Ruthie Mae Porter, entered an eating place on Mint Street in Charlotte, called 'Johnny's', that Ruthie Mae Porter left the eating place and was followed out by the deceased, Frank Porter, and they two were standing on the sidewalk, and one Alma Bradford was standing nearby on the sidewalk; that appellant, Mozelle Williams, came out of the eating place on to the sidewalk and said to deceased Frank Porter 'Don't be bothering my cousin, Alma Bradford', and Frank Porter said he wasn't bothering anybody; at that time Williams pulled out a pistol and shot twice at Porter and then DeWitt Tate appeared suddenly on the scene and took the pistol from Mozelle Williams and shot twice at Frank Porter and he fell; Frank Porter was put into a taxi and driven to a hospital, but died just before he arrived there; 'the gun was pointing towards Frank Porter at the time that Mozelle Williams shot at him twice, but I don't know whether Mozelle hit Frank or not. After Mozelle Williams shot, Frank was still standing on the sidewalk in the same spot, and DeWitt Tate ran out where Mozelle was in the street and grabbed Mozelle's gun. At the time that Mozelle Williams shot him, Frank Porter did not say anything and did not do anything. He was still standing up, and he did not appear to be shot. * * * He fell the second shot when DeWitt shot. * * * Yes, sir, that's when he fell '. Both Mozelle Williams and DeWitt Tate made statements to the officer arresting them to the effect that they did not know which one hit Frank Porter; they both stated that Frank Porter was jabbing something into Alma Bradford, and Mozelle Williams told Porter not to do anything to his girl or cousin, and as Frank Porter started toward him Mozelle Williams walked into the street, pulled his gun and began shooting and DeWitt Tate came up and grabbed his gun away from him and shot at Frank Porter. Mozelle Williams and DeWitt Tate were friends. Upon a post mortem examination made at the hospital only one bullet wound was found upon the body of Frank Porter, it being 'a hole in his chest on the left side near the heart, * * * the hole was a bullet wound over his heart', and in the opinion of the physician who made the post mortem examination this bullet wound killed the deceased.

The exception most stressfully pressed on this appeal was to his Honor's refusal to grant the motion of appellant to dismiss the action or for judgment of nonsuit lodged when the State had produced its evidence and rested its case. G.S. s 15-173. The appellant, in his brief and oral argument, contended that since there is no evidence in the record that the defendant Tate and the defendant Williams had seen each other at any time...