{ "id": 8659574, "name": "STATE v. ROBERT GRAINGER and MISSIE MARLOW", "name_abbreviation": "State v. Grainger", "decision_date": "1911-12-20", "docket_number": "", "first_page": "628", "last_page": "634", "citations": [ { "type": "official", "cite": "157 N.C. 628" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "151 N. C., 167", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "149 N. C., 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271197 ], "opinion_index": 0, "case_paths": [ "/nc/149/0483-01" ] }, { "cite": "143 N. C., 642", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "136 N. C., 620", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "150 N. C., 820", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273107 ], "opinion_index": 0, "case_paths": [ "/nc/150/0820-01" ] }, { "cite": "79 Ga., 87", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 63759 ], "opinion_index": 1, "case_paths": [ "/ga/79/0087-01" ] }, { "cite": "29 N. C., 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692982 ], "opinion_index": 1, "case_paths": [ "/nc/29/0299-01" ] }, { "cite": "93 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274903 ], "opinion_index": 1, "case_paths": [ "/nc/93/0611-01" ] } ], "analysis": { "cardinality": 630, "char_count": 13113, "ocr_confidence": 0.436, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.2948907445955343 }, "sha256": "5132b7bf22909dc3f1fb20b587894a54e51d8f77d0fbb27a6ab908b07421ccf4", "simhash": "1:b54d13686ea6e6cf", "word_count": 2310 }, "last_updated": "2023-07-14T17:57:03.195282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. ROBERT GRAINGER and MISSIE MARLOW." ], "opinions": [ { "text": "Clark, C. J.\nThe prisoners, Robert Grainger and Missie Marlow, were convicted of murder in tbe second\u2019degree. The evidence for the State showed that they were living together, without being married; that on tbe morning of 28 April, 1911, in company with one Tyson, they went to Cerro Gordo, where Grainger got an express package out of the depot containing whiskey. Grainger had a gun and before he got back into the buggy Missie Marlow said to him: \u201cYou had better get a box of shells; you will have need of them this evening.\u201d Grainger bought the shells, and they started to Grist\u2019s, 4 miles away. On the way, the parties took some fifteen or twenty drinks of the whiskey, to which they had added some water, and the witness said they were \u201cneither drunk nor sober\u201d when they got to Grist\u2019s. On the way, Grainger was constantly firing his gun and Missie Marlow reloading the gun every time he fired it. On the road Grainger and Missie Marlow talked about Bud Nobles, the deceased. Grainger said: \u201cAin\u2019t you got an old sport at Grist\u2019s ?\u201d She denied it, and Grainger said with an oath that she knew she had; that it was Bud Nobles, and that he \u201cwould \u2019tend to him this evening.\u201d He made the same threat to- her three or four times, that he \u201cwould \u2019tend to Nobles\u201d that evening.\nWhen they got to Grist\u2019s, Grainger shot and scared some little children, who ran into a ditch about 200 yards from the postoffice. Then Grainger said: \u201cLet\u2019s drink some whiskey.\u201d As the parties passed Smith\u2019s store, Bud Nobles was standing between the store and the old postoffice. Missie Marlow said to Grainger, \u201cYonder is the man you want,\u201d and Grainger said: \u201cHow do you know it is ?\u201d Missie said: \u201cI know him by the suit of clothes, and I want you to shoot his d-d head off,\u201d and Grainger said: \u201cI will do anything you say do.\u201d This was about half an hour before he shot Nobles. Grainger fired the gun twice at the house of Mr. Struthers. They then went on down the road about 300 yards and Grainger said, \u201cLet\u2019s stop and take a drink,\u201d and they all did so. They then drove up to a negro house and shot a time or two, and, after some profanity and rowdiness, Grainger jumped out of the buggy with his gun in his hand and his knueks on the other and took after the darkey, whom he overtook and struck two or three times. Missie Marlow overtook him, and they went up the road together and saw Bud Nobles standing in the yard of Wiley Hammond. Grainger then opened his gun and said: \u201cBring me some shells.\u201d Missie Marlow said: \u201cEun here, Eobert; I have got the shells.\u201d They ran towards each other and Grainger got the shells from her. Nobles went on off up the street, when Grainger ran across and cut him off. Nobles\u2019 hands went up, palms out, and Grainger shot Nobles and the latter fell. He was unarmed. Grainger was four feet from Nobles when he shot him. Nobles died from the wound. There was other evidence of Grainger \u201cshooting up\u201d the town, Missie Marlow being with him.\nThe above was in substance the evidence for the State, somewhat condensed. The evidence offered by the defendant tended to show that there was a fight between the two men, and that the prisoner Grainger was cut with a knife. McOumbie, witness for the State, testified that he.arrested Eobert Grainger and Missie Marlow about 2 o\u2019clock that night; that he saw his undershirt, and it was cut in several places; that theih was a scar on his arm and two or three cuts in his back, but the cuts were not bleeding, and Grainger said that he had been cut in the arm the day before at Tyson\u2019s in trying to part some men in a row. He did not allude to the cuts on his back.\nThe first eleven exceptions are to the allowance of the evidence as to the prisoner \u201ctanking up\u201d on whiskey, his threats to Missie Marlow in regard to Nobles, and the conversation between them, and as to her identifying Nobles and telling Grainger to shoot his head off, and his saying that he would do so, and the evidence generally in regard to Grainger\u2019s \u201cshooting up\u201d the town. All this testimony was competent on the charge of murder in the first degree, to show premeditation. The jury were lenient in not taking that view of it, but in letting the parties off with a, conviction of murder in the second degree.\nIt is true, the prisoner testified that there had been a fight between him and the deceased, and on the trial the prisoner was: stripped in the presence of the jury and showed the cuts in his shirt and in his body. But the jury, in spite of the able defense of his counsel and the impassioned appeals to their sympathies, did not accept this version, but found that the prisoners were guilty of murder in the second degree. There is also further evidence for the State that the wounds on the prisoner\u2019s body were not fresh, the night after the homicide. The jury rejected entirely the prisoner\u2019s allegation of self-defense.\nThe prisoner also relies upon an exception that the judge refused to give the following prayer for instruction: \u201cThe court instructs the jury that the prisoners are not on trial for selling whiskey nor for making an assault upon Henry Johnson with a pair of knucks, and as independent facts should not be considered by the jury in arriving at a verdict in this ease.\u201d The prisoner Grainger contended that \u201cat the time he fired the shots, three persons were assaulting him with knives; that he was not in the wrong; that he attempted to get them to stop; that they cut him in the back and knocked him down, and he fired.\u201d The court told the jury that if this was so, Grainger was not guilty of any offense, and it would be their duty to return a verdict of not guilty. The-jury by their verdict utterly rejected the version of the affair contended for by the prisoners. Having rejected the prisoner\u2019s plea of self-defense, then under the law the jury would be compelled to return a verdict of murder in the second degree unless the defendant had offered evidence tending to reduce the crime to manslaughter, and there was nothing in the evidence referred to in the above special instructions which tended to reduce or increase the grade of the crime committed. S. v. Quick, 150 N. C., 820. The charge of the court clearly stated for what offense the prisoners were tried, and restricted the trial to that. This was a substantial compliance with the prayer.\nThe prisoners refrained from arguing in their brief the 18th exception, for refusal to give another prayer for instruction, though they do not expressly abandon it. That prayer could not have been given by the court, for it left out of consideration the presumption of murder in the second degree which arises from the killing with a deadly weapon.\nNor was it error to refuse the prayer for instruction that it was incumbent upon the State to show motive on the part of Missie Marlow for desiring that death or bodily injury be inflicted on the deceased, Bud Nobles. The law does not require that \u201cIf such motive existed, it is the duty of the State to show the same to the jury.\u201d While the case may be strengthened by showing motive, when tbe evidence is circumstantial, yet the State is never required to show such motive. S. v. Adams, 136 N. C., 620; S. v. Turner, 143 N. C., 642; S. v. Stratford, 149 N. C., 483.\nNor can we sustain exception 23, which is that the court recited the contentions of the State in summing up the contentions of both parties to the jury. In Walker v. Walker, 151 N. C., 167, Mr. Justice Manning said: \u201cHis Honor was in this particular stating\" the contentions of the defendant, and there was evidence offered on the trial supporting this contention. It has been frequently held by this Court that it is the duty of the trial judge to call to the attention of the jury those contentions of the parties which are supported by the evidence.\u201d\nThe prisoners were defended by able, eloquent, and zealous counsel. The case was tried by a very careful and able judge. The prisoners both testified in their own behalf. The jury after weighing carefully and impartially all the evidence on both sides have arrived at what may well be deemed a most merciful verdict. They might wel'1 have found upon this evidence the prisoners guilty of murder in the first degree.\nIn carefully considering the exceptions, we find no error committed which was prejudicial to the prisoners.\nNo error.", "type": "majority", "author": "Clark, C. J." }, { "text": "BeowN, J.,\ndissenting: Since I have been a member of this Court I have never voted for a new trial in a criminal case unless I saw that some substantial and harmful error had been committed on the trial. I think that is the case here.\nThe court permitted- the State to introduce evidence tendijig to prove that some time prior to defendant Grainger meeting with Nobles, the deceased, said defendant shot at Struthers\u2019 house; that he came back up Hammond Street and met up with some negroes, and hit one of them; that he threatened to shoot one Hinson; that he shot at some colored children; that he made an assault on Henry Johnson with his gun and struck him with knueks, and that he was attempting to sell whiskey.\nAll this evidence it appears to me to be utterly incompetent and well calculated to seriously prejudice the defendants before the jury.\nThe plea of the defendant Grainger is self-defense, and his main reliance was his own testimony, and bringing all these extraneous and incompetent matters into the case undoubtedly greatly injured him. S. v. Jones, 93 N. C., 611; S. v. Barfield, 29 N. C., 299-308; 21 Cyc., p. 896; S. v. Whitaker, 79 Ga., 87.\nThe prisoners asked the following instruction, which was refused, and they excepted: \u201cThe court instructs the jury that the prisoners are not on trial for selling whiskey, nor for making an assault upon Henry Johnson with a pair of brass knucks, and, as independent facts, should not be considered by the jury in arriving at a verdict in this case.\u201d\nThe Attorney-General, with his usual candor^ says in his brief that in his opinion the court should have given that prayer, and admits that the evidence referred to in the instruction was not competent.\nIt is urged, however, that, inasmuch as the jury rejected the defendant\u2019s plea of self-defense, the error was harmless, as defendant would be guilty of murder in second degree, the crime for which they stand convicted. It may be that the admission of all that incompetent evidence so prejudiced their minds that the jury rejected his plea and evidence entirely.\nThis was a proper and pertinent instruction, and had it been given it would have neutralized the effect of the incompetent evidence.", "type": "dissent", "author": "BeowN, J.," } ], "attorneys": [ "Attorney-General T. W. -Bickett and Assistant Attorney-Gen^ eral George L. Joshes for the State.", "Lewis', Lyon, and Greer and Irvin B. Tucker for defendant." ], "corrections": "", "head_matter": "STATE v. ROBERT GRAINGER and MISSIE MARLOW.\n(Filed 20 December, 1911.)\n1. Murder \u2014 Premeditation\u2014Evidence.\nUpon a trial for murder, evidence that- the prisoners, a man and a woman, were heavily drinking, that they fired a gun, having procured shells for the jrarpose, indiscriminately at houses along the road, to the fear of the occupants and those whom they met; that the male prisoner made threats against the life of the deceased, concurred in by the woman, who afterwards identified and pointed out the deceased, whereupon the male prisoner killed him with the gun he was carrying, is sufficient, upon the question of premeditation to sustain a verdict of murder in the first degree.\n2. Murder \u2014 Instructions\u2014Collateral Matter \u2014 Prayers Refused \u2014 Substantial Compliance.\nUpon evidence tending to show that the prisoners, a man and woman, tried for murder, had been drinking heavily and were selling whiskey; that the' male defendant assaulted a person v'ith brass knucks, and afterwards unlawfully killed another person, the deceased, with a gun he was carrying, a charge of the court which clearly states for what offense the prisoners were tried, restricting the trial to that for murder, is a substantial compliance with a requested prayer for instruction, \u201cthat the prisoners were not on trial for selling -whiskey nor for making an assault with the knucks as independent facts,\u2019* and that the jury should not consider this evidence in arriving at their verdict.\n3. Murder \u2014 Deadly Weapon \u2014 Second Degree \u2014 Presumptions\u2014Instructions.\nThe killing of a human being with a deadly weapon raises the presumption of murder in the second degree, and a request for instruction which assumes a less offense, under conflicting evidence, should be refused.\n4. Murder \u2014 Motive\u2014Burden of Proof.\nThe burden is not upon the State to show the motive of one aiding and abetting the committing of murder by another, when the evidence is otherwise sufficient, though the case may be strengthened by showing motive when the evidence is circumstantial.\n5. Instructions \u2014 Contentions Stated by Judge \u2014 Appeal and Error.\nIt is the duty of the court to state the contentions of the parties which are supported by the evidence, and his thus doing so is not error.\nBbown, J., dissents.\nAppeal from Whedbee, J., at July Term, 1911, of Columbus.\nThe facts are sufficiently stated in the opinion of the Court by Mr. Ghief Justice Glark.\nAttorney-General T. W. -Bickett and Assistant Attorney-Gen^ eral George L. Joshes for the State.\nLewis', Lyon, and Greer and Irvin B. Tucker for defendant." }, "file_name": "0628-01", "first_page_order": 668, "last_page_order": 674 }