{ "id": 8657403, "name": "STATE v. GEORGE WILLIAMS, FRANK DOVE, and FRED DOVE", "name_abbreviation": "State v. Williams", "decision_date": "1923-03-21", "docket_number": "", "first_page": "643", "last_page": "670", "citations": [ { "type": "official", "cite": "185 N.C. 643" } ], "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": "166 N. C., 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269781 ], "opinion_index": 0, "case_paths": [ "/nc/166/0379-01" ] }, { "cite": "145 N. C., 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253958 ], "opinion_index": 0, "case_paths": [ "/nc/145/0563-01" ] }, { "cite": "152 N. C., 828", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "111 N. C., 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652154 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/111/0695-01" ] }, { "cite": "155 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651846 ], "opinion_index": 0, "case_paths": [ "/nc/155/0124-01" ] }, { "cite": "110 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272846 ], "opinion_index": 0, "case_paths": [ "/nc/110/0134-01" ] }, { "cite": "184 N. C., 789", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272400 ], "opinion_index": 0, "case_paths": [ "/nc/184/0789-01" ] }, { "cite": "183 N. C., 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659133 ], "opinion_index": 0, "case_paths": [ "/nc/183/0783-01" ] }, { "cite": "183 N. C., 777", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "183 N. C., 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658824 ], "opinion_index": 0, "case_paths": [ "/nc/183/0747-01" ] }, { "cite": "183 N. C., 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658527 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/183/0709-01" ] }, { "cite": "150 N. C., 820", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273107 ], "opinion_index": 0, "case_paths": [ "/nc/150/0820-01" ] }, { "cite": "113 N. C., 718", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "46 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682242 ], "opinion_index": 0, "case_paths": [ "/nc/46/0251-01" ] }, { "cite": "94 N. C., 973", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652712 ], "opinion_index": 0, "case_paths": [ "/nc/94/0973-01" ] }, { "cite": "93 N. C., 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274476 ], "opinion_index": 0, "case_paths": [ "/nc/93/0533-01" ] }, { "cite": "92 N. C., 831", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275418 ], "opinion_index": 0, "case_paths": [ "/nc/92/0831-01" ] }, { "cite": "90 N. C., 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698676 ], "opinion_index": 0, "case_paths": [ "/nc/90/0668-01" ] }, { "cite": "171 N. C., 823", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "166 N. C., 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269829 ], "opinion_index": 0, "case_paths": [ "/nc/166/0403-01" ] }, { "cite": "143 N. C., 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658653 ], "opinion_index": 0, "case_paths": [ "/nc/143/0641-01" ] }, { "cite": "133 N. C., 747", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "141 N. C., 857", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254284 ], "opinion_index": 0, "case_paths": [ "/nc/141/0857-01" ] }, { "cite": "182 N. C., 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658969 ], "opinion_index": 0, "case_paths": [ "/nc/182/0818-01" ] } ], "analysis": { "cardinality": 1967, "char_count": 79937, "ocr_confidence": 0.45, "pagerank": { "raw": 1.8160715797477653e-07, "percentile": 0.7184887999261733 }, "sha256": "e79cf01cdbc9a216684d55a1bd050cb1911f2d3abc2a900fb894646aa0a899e7", "simhash": "1:3422baa1fa8cc3eb", "word_count": 14775 }, "last_updated": "2023-07-14T20:46:28.944101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. GEORGE WILLIAMS, FRANK DOVE, and FRED DOVE." ], "opinions": [ { "text": "WalKer, J.,\nafter stating the facts: This ease was carefully tried, and the rulings during the course of the trial were well considered and made with strict regard to law and procedure.\nThe charge of the court was very full, learned, and explicit, and was perfectly fair and just to all the defendants, being, if anything, rather more favorable to them than they had any reason to expect. The jurors, if they heeded it, which they seem to have done, could not possibly have mistaken its meaning and significance. The contentions of the respective sides were very fully arrayed, nothing material or of importance being omitted therefrom. The law of the case was explained to the jury with great care and correctness, and the statute fully complied with in this respect.\nUpon the evidence, including the dying declarations of the deceased, the jury convicted all of the defendants of first degree murder, that is, Williams and the two Doves, Hardison having been before convicted of the same crime.\nUpon exceptions reserved by the defendants they appealed to this Court, and now ask us to review the entire record, so far as indicated by the specific exceptions, which we will now proceed to do.\nIt will be timely and appropriate at this stage of the opinion to repeat with some degree of fullness what the learned judge stated to the jury, in his charge, with reference to the dying declaration of Cyrus Jones, as the competency of what is called \u201chis dying declaration\u201d should be finally settled before proceeding further to discuss the case in the light of the evidence. It is as follows: \u201cThere has been admitted in evidence, gentlemen of the jury, testimony tending to show statements made by Captain Jones, which the State contends were made in the fear of his impending death. The law of North Carolina is that such statements are admissible upon the ground of public policy, one reason being that the victim and the perpetrators of the crime are often the only persons present, and our Court holds that such testimony does not violate the bill of rights, which gives every man the right to confront his accuser, and I instruct you that the rule is that the declarant must have been dead at the time declarations were given in evidence, and that the declarant, at the time he made the declaration, must have been in danger of impending death, and that he must have been in full apprehension of such danger. It is alleged and admitted that Captain Jones was mortally wounded on 5 August and died on 9 August. The State contends that a short time after he was wounded he was in actual danger of death, and that he was in full apprehension of such danger, and that he declared there was no chance for him, and that those responsible for his condition were Collins, Williams, and the Doves. And I instruct you, gentlemen, that you are the judges of the weight you will give to such statement and the credibility you will give the witnesses who testified to it. I further instruct you that it is your duty to receive the statement with care\u2014 carefully, but not superstitiously, remembering there was no cross-examination at the time it was made by the deceased.\u201d The allusion to the dying declaration could not have been better expressed or stated, and is but one illustration among the several of the intelligent manner in which the cause was considered and tried. The criticisms of the defendants\u2019 learned counsel are entirely inadequate to any successful challenge of the correctness of the learned judge\u2019s charge as to the dying declaration. They are founded upon pure conjecture as to the probable state of Jones\u2019 mind at the time it was made, and as to his semi-consciousness, and his being plied with leading questions, if he made any response to them at all, thus being led easily to his conclusions of fact relating to the circumstances of the assault upon him by the prisoners.\nEeviewing the various exceptions taken to the judge\u2019s rulings and to his charge, we find none of them that is at all tenable. It would be idle and useless to discuss them seriatim, as each and every one of them is manifestly without any solid or genuine merit, and yet we do not feel that in so important a case, involving the lives of three men, and possibly four, we should fail to make some more specific reference to them than we have already done. We will therefore consider the prisoners\u2019 exceptions with some more particularity, though not taking them up one by one.\nCounsel for the defendants move the Court for a new trial on the ground of newly discovered evidence, because of the fact that one of the witnesses has changed his story of the crime since the trial. If there is any particular virtue in the changed statement of the witness, it should -be addressed to the executive and not to the judicial branch of the Government. However, counsel for the defendants take advantage of the opportunity afforded in a motion for a new trial to present to the Supreme Court, in the form of an affidavit, his version of the whole matter, including the conduct of the court, the conduct of counsel appearing with the solicitor, and the conduct of those in attendance upon the trial. The Assistant Attorney-General directs our attention to the fact, which he affirms and relies on, that some of the statements set out in the affidavits filed with the motion for a new trial, because of after discovered evidence, are new and heard for the first time when this motion for a new trial was entered. It is a well settled proposition of law that this Court will not grant a new trial in criminal cases for newly discovered evidence, to say nothing of reversed evidence. The latest decision reaffirming this doctrine is in S. v. Jenkins, 182 N. C., 818. This Court said in that case, by Adams, J.: \u201cWhen the case was called for argument the defendant\u2019s counsel filed a motion for a new trial upon the ground of newly discovered evidence. The motion must be denied. In numerous decisions this Court has held that a new trial will not be awarded in a criminal action for newly-discovered evidence; and in S. v. Lilliston, 141 N. C., 857, the Chief Justice said: \u2018So that point is settled, if the uniform practice of this Court and its repeated and uniform decisions to the same effect can settle anything.\u2019 S. v. Register, 133 N. C., 747; S. v. Turner, 143 N. C., 641; S. v. Ice Co., 166 N. C., 403.\u201d And upon the question of nonsuit, or as to whether there was any evidence to convict, the Court further said: \u201cAn issue of fact was thus joined between the State and the defendant, and the court properly submitted to the jury the question of the defendant\u2019s guilt. In S. v. Carlson, 171 N. C., 823, it is said: \u2018The motion to nonsuit requires that we should ascertain merely whether there is evidence to sustain the allegations in the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury.\u2019 \u201d\nException one, defendants abandon. Exceptions two, three, four, six, seven, and eight relate to the challenge of jurors for cause by the defendants, for that each of said jurors challenged had served upon the jury within the past two years. This special venire was drawn from the jury box with all the formalities of drawing a regular jury, and were summoned by the sheriff. C. S., 2326, provides that where the name of a juror is drawn from the box, it shall not be ground for challenge that he-has served on the jury within two years prior to the court at which the case is tried, and all the decisions of this Court are to the effect that it is no cause for challenge that a special venireman had served upon tbe jury within two years. S. v. Carland, 90 N. C., 668; S. v. Whitfield, 92 N. C., 831; S. v. Kilgore, 93 N. C., 533; S. v. Starnes, 94 N. C., 973.\nIn tbe fourth exception, wben tbe juror Frazelle was challenged for cause on tbe ground that be bad served on tbe jury witbin tbe past two years, and this cause for challenge was disallowed, counsel for tbe defendants undertook to peremptorily challenge this juror without being required to make it known in open court, so that tbe other jurors would not be affected or prejudiced by tbe challenge, if made openly and in their bearing. Tbe court promptly, and properly, we think, stated to tbe counsel that if be would challenge tbe juror peremptorily, it must be done in open court, and it would be allowed, but 'that if counsel did not see fit to make tbe challenge openly, it would not be allowed. Tbe disagreement between counsel for the defendants and tbe presiding judge as to what happened is, of course, settled by the finding of tbe court as to what it was which we have stated.\nExceptions nine, ten, eleven, twelve, fourteen, fifteen, sixteen, seventeen, and eighteen are grouped in defendants\u2019 brief as relating to dying declarations. The only objection raised by the defendants in their argument is that the statement of the deceased should not have been received, for that they are very close on the line of demarcation, and that the deceased was speaking, perhaps, unconsciously, and, undoubtedly, responding to leading questions, if he made any responses at all, but the evidence seems to be to the contrary. the deceased bad driven bis car a mile and a half back to Swansboro, and, before be was taken from bis car, be told the witness Midgett that be was beaten all to pieces; that there was no chance for him to live, and that Collins, Williams, and Doves were the responsible parties. There was no evidence that be lapsed into unconsciousness until later on in the night, after which be made no 'statements whatever. the statements of the deceased as to who shot him come directly under the rules laid down by this Court for the admission of dying declarations. S. v. Peace, 46 N. C., 251; S. v. Whitt, 113 N. C., 718; S. v. Quick, 150 N. C., 820.\nThe thirteenth exception is complained of on the ground that it is hearsay, but there the witness Midgett was only stating to the witness Freeman what the deceased bad said to him, and, if hearsay, it is absolutely immaterial and harmless, because it is merely a repetition of what the witness Midgett bad just testified to.\nExceptions 19, 20, 21, 22, 23, 24, 25, and 26, taken to the charge of the court, are grouped in the brief of the defendants and based on the ground that they form expressions of opinion. the judge, more than once in bis charge to the jury, tells them that be has no opinion on the facts, and the exceptions above enumerated are taken to the contentions of the State, as given by the court in charging the jury. If the contentions as given by the court were incorrect, and they do not appear so to have been, the counsel for the defendants should have objected at the time, in order to have given the court an opportunity to correct any misstatement of the contentions of the State, if, perchance, he had made any misstatement of the same. All the decisions of this Court are to the-effect that when the trial judge is stating the contentions of a party to-the jury, the opposite party must object at the time, if they would avail, themselves of the objection in this Court, and if the party fails to object at the time, the objection is waived. S. v. Kincaid, 183 N. C., 709; S. v. Montgomery, 183 N. C., 747; S. v. Winder, 183 N. C., 777; S. v. Sheffield, 183 N. C., 783; S. v. Baldwin, 184 N. C., 789.\nThe defendants could not have been harmed by the statement of the-court that it was alleged, and not denied, that Cyrus Jones was dead, because the evidence of witness after witness was to the effect that he died on Wednesday night, 9 August, and never was any suggestion made-by the defendants that he was not dead. Hence, the judge was merely stating a contention of the State, which was uncontradicted by the defendants; and if error at all, it was certainly harmless, and this Court does not concern itself with harmless errors. Hulse v. Brantley, 110 N. C., 134; Alexander v. Trust Co., 155 N. C., 124.\nExceptions 27, 28, and 29 seem to be abandoned by the defendants in their brief, and well might they he abandoned because in the court\u2019s charge, to which these exceptions are noted, his Honor tracked the law, as repeatedly laid down by this Court, to the very letter.\nS. v. Whitson, 111 N. C., 695, answers the 28th exception, and S. v. Baldwin, 152 N. C., 828, the 29th and 30th exceptions. In the last named case, Justice Hoke, writing the opinion of the Court, says: \u201cMalice may arise from personal ill-will or grudge, but it may also be-said to exist (in a legal sense) wherever there has been a wrongful or intentional killing of another, without lawful excuse or mitigating circumstances.\u201d This is implied or le^al malice.\nException 31: As to this exception, the court was undertaking to-define how malice may be shown, and again the court followed the rules-of this Court in defining malice. S. v. McDowell, 145 N. C., 563; S. v. Cameron, 166 N. C., 379.\nException 32: This exception seems to be abandoned by the defendants in their brief, and properly so.\nException 33: In this exception defendants complain for that the court did not go far enough and sufficiently qualify the charge given. This is exactly what the court did do, for, after telling the jury that they should receive the testimony of the defendants and their relatives with caution and scrutiny, the judge uses this language: \u201cIf, after such scrutiny, you are satisfied tbey are telling tbe' truth, it will tben be your duty to give it as much credit as you give tbe testimony of a disinterested witness.\u201d\nException 34: This exception is properly abandoned.\nException 35: Here again tbe defendants complain, for. tbe first time, about tbe judge stating tbe contentions of tbe State. If, in stating these contentions, be erred, which it seems be did not do, tbe objection should have been made at tbe time, but none was made. S. v. Kincaid, supra.\nExceptions 36 and 37 are abandoned by tbe defendants, and rightly so.\nException 38: Here the defendants complain that bis Honor erred in failing to tell the jury that the defendants must have been present at the time of the killing, in order to make them guilty of murder in the first degree. If any error here, we think that it was cured by the language of the court used immediately before the language excepted to. Immediately before this exception the court said, \u201cIf you find from the evidence, and beyond a reasonable doubt, that the shot which killed Cyrus Jones was fired by Willie Hardison, in furtherance of a plan and design on his part, with malice and with premeditation and deliberation, and that the defendants, or either of them, were (when the fatal shot was fired), then and there present, aiding, encouraging and abetting him, it will be your duty to convict them, or such of them as you find so present, guilty of murder in th\u00e9 first degree.\u201d\nExceptions 39 to 46, inclusive, are abandoned by tbe defendants.\nException 47: This exception relates to the refusal of bis Honor to tell the jury that it was dangerous to convict exclusively on the unsupported testimony of an accomplice. the refusal of the court was on the ground that it was covered in the general charge, and this relates to exceptions 47 and 48. In bis Honor\u2019s general charge to the jury, be said: \u201cthe jury may convict upon the unsupported testimony of an accomplice, though it is dangerous and unsafe to do so, but if the testimony of the accomplice, taken with other facts and circumstances in the case, carries conviction to the minds of the jury, then it is their duty to convict, remembering that the jury must be satisfied beyond a, reasonable doubt of the guilt of the defendants before they can convict.\u201d What more could be have said, or bow better could be have said it ?\nException 49 : Here the court gave the instructions asked for by the defendants, and they now complain that be added thereto a correct statement of the law, contending in effect that the trial judge was unfair in correctly stating the law, because everybody knew the defendants were innocent. Counsel for the defendants in this exception, while complaining of the court, seem to lose sight of the fact that the State has some rights as well as the defendants, which should be safeguarded.\nException 50 and 51: In exception 50 the defendants asked for certain instructions to the jury, and bis Honor gave these instructions as set out in exception 51, stripped of surplus verbiage, the language of the court includes everything asked for by the defendants except that it was stated more succinctly and pointedly.\nException 52: This prayer for instruction was covered in the general charge. His Honor charged the jury at some length on the caution and scrutiny that they should apply to the testimony of interested witnesses.\nException 53: This prayer for instruction was declined on the ground that it was given in the general charge, but the defendants say they fail to find it in the general charge. But it is there, as will appear in the charge, as set out on page 86 of the record, next to the last paragraph on that page, and is included within the 28th exception of the defendants, which they abandoned in their brief, and is in language as follows: \u201cI further charge you that it is your duty to receive the statements (dying declarations) with care \u2014 carefully, but not superstitiously, remembering there was no cross-examination at the time they were made by the deceased.\u201d\nIt appears that the judge not only fully covered tbe requests of tbe defendants in his general charge to the jury, but that he correctly stated the law, and conformed, at least substantially, to the language of this Court as used in S. v. Whitson, 111 N. C., 695.\nException 54: This exception is purely formal, and taken to his Honor\u2019s refusal to set aside the verdict, and needs no more special reference.\nThe defendants seem to complain here, and for the first time, that they did not get a fair trial. They seem to believe that the whole case would have been changed and the verdict would have been different if a man by the name of Ramp - Jones had not escorted the prisoner, Willie- Hardi-son, from the jail to the court room. The counsel contends that Hardi-son was under the influence of Jones. \"While the suggestion is absolutely new, and is heard here for the first time, we call attention to the fact that if they had any ground for it defendants should have complained to the trial judge, and requested proper instructions, whereas no complaint was made, and, so far as the record discloses, the defendants discovered for the first time, after the verdict, that they had not had a fair trial, for the reason indicated.\nIn the affidavit introduced for the defendants Frank and Fred Hove, and filed in this Court, on the motion for a new trial, they set out the fact that an attorney visited Willie Hardison while he was confined in the jail of Craven County, and interviewed him with reference to what took place at the killing; that Hardison told him, on that occasion, that his clients, Fred and Frank Dove, and the defendant George Williams were all present and assisted in tbe killing of tbe deceased. Tbe witness Hardison could not baye been under tbe influence of Ramp Jones at tbat time. Tbe witness Hardison only repeated upon tbe witness stand statements be bad previously made wben. under tbe influence of nobody, and bis testimony in tbe trial of these defendants was given after be bimself bad been tried and convicted of murder in tbe first degree. Tbe Assistant Attorney-General, Mr. Nasb (wbo always presents tbe State\u2019s cases, in an exceedingly able, accurate, and most satisfactory manner), contends tbat it is simply preposterous to advance tbe theory, at this late day, tbat tbe testimony of tbe witnesses would have been different, if tbe witness Hardison bad been conducted to and from' tbe jail by another deputy sheriff, and tbat tbe verdict would also have been reversed. And it does not (at least sufficiently) appear tbat there would have been any such change in tbe testimony or tbe verdict.\nThe evidence as to the dying declarations of Cyrus Jones having been admitted, it is only necessary to state that it was clearly competent evidence, because at the time the most essential part of it,- and also a separate and independent part, was let in, the declarant bad stated that be would certainly die, or used equivalent language, if not stronger language, when be said \u201cthere was no chance for him\u201d to live, that be bad been beaten to death. The judge, therefore, properly ruled in the declaration, although the declarant may afterwards have changed bis mind and believed that the doctors might save him. It is evident, though, that Gyrus Jones, at the time when be declared as to the facts and circumstances of the homicide, bad abandoned all hope, and that be spoke under the solemnity and in the very presence of impending death, which supplies the usual tests, as to the truth of what be stated, that is, an oath and opportunity of cross-examination by the party against whom bis declarations are used.The evidence as to the dying declarations of Cyrus Jones having been admitted, it is only necessary to state that it was clearly competent evidence, because at the time the most essential part of it,- and also a separate and independent part, was let in, the declarant bad stated that be would certainly die, or used equivalent language, if not stronger language, when be said \u201cthere was no chance for him\u201d to live, that be bad been beaten to death. The judge, therefore, properly ruled in the declaration, although the declarant may afterwards have changed bis mind and believed that the doctors might save him. It is evident, though, that Gyrus Jones, at the time when be declared as to the facts and circumstances of the homicide, bad abandoned all hope, and that be spoke under the solemnity and in the very presence of impending death, which supplies the usual tests, as to the truth of what be stated, that is, an oath and opportunity of cross-examination by the party against whom bis declarations are used.\nThere was some suggestion in the argument tbat defendants could not be convicted of murder, as principals, in the first degree, nor as principals in the second degree, as aiders and abettors. This contention was based upon the supposition, clearly not allowable, tbat the evidence showed tbat 'Willie Hardison was the principal, and tbat the defendants were only accessories before the fact, having beforehand merely advised or counseled the commission of the homicide by him, and not having participated in the actual commission of it, as being present, aiding and abetting, Willie Hardison, the principal. But this position is manifestly without sufficient support in the evidence, when carefully considered, and the learned presiding judge correctly instructed the jury in regard to it. If the State\u2019s evidence is credible, and this was for the jury, Hardison and the defendants were all guilty as principals, as they, with premeditation and deliberation, killed and murdered the deceased in a most cruel and heartless manner, and upon not only a slight, but a frivolous pretext.\nIt was suggested, but only so, that perhaps H\u00e1rdison, inspired by a yearning desire to save his own life, testified falsely as to the others, but this is met by what was said by Cyrus Jones, in his dying declarations, and is fully and completely contradicted by it. If he (Jones) told the truth \u2014 and he had every reason to tell the truth by reason of his serious situation at the time, and the truth of his words are confirmed by the solemn realization of impending death \u2014 there can be no doubt as to the guilt of the prisoner. But any consideration such as suggested by the prisoners is for the jury in impeachment of the State\u2019s evidence, or is a matter which should be addressed to the pardoning power and not to us, as we must be governed by the facts as the jury have found them.\nThere are practically sixty exceptions in this case, many of them of grave importance, requiring full consideration and discussion, and we have, in one way or another, adverted, at least, to those which could not be ignored, and were decisive of the case. It extended'the opinion of the court far beyond ordinary limits, but this could not possibly be avoided if the case was given proper and adequate treatment, and is to be fully justified when not only the unusual importance of the case, and the gravity of the questions raised, are taken into account, and also the seriousness of the result, when four lives must be surrendered in the vindication of the law.\nWe do not recall any other contention of the prisoners that would' either excuse, mitigate, or extenuate their crime, and upon a most careful perusal of the whole record, we are satisfied that none such exists.\nThe prisoners have been tried before an able and learned judge, by a jury fairly and impartially selected according to law, and there is no ground, or even plausible pretext, upon which we can base a reversal or modification of the judgment.\nNo error.", "type": "majority", "author": "WalKer, J.," } ], "attorneys": [ "Attorney-General Manning, Assistant Attorney-General Nash, I. M. Bailey, and McLean, Varser, McLean & Stacy for the State.", "Duffy & Day for defendant Williams.", "Ward & Ward for defendants Frank and Fred Dove." ], "corrections": "", "head_matter": "STATE v. GEORGE WILLIAMS, FRANK DOVE, and FRED DOVE.\n(Filed 21 March, 1923.)\n1. Criminal Law \u2014 Evidence\u2014Dying Declarations \u2014 Constitutional Law.\nThe principle upon which dying declarations may he received in evidence in criminal cases is not in violation of the defendant\u2019s constitutional right to confront his accusers, as they have been admitted from necessity.\n2. Homicide \u2014 Murder\u2014Dying- Declarations \u2014 Evidence.\nUpon the trial for murder, the declarations of the deceased that he knew he had been fatally shot and would die from the effects of his wounds, which, after his lingering a few days, resulted in his death, and his stating under these conditions the names of the defendants as his slayers are sufficient as dying declarations to be received as evidence by the testimony of the one to whom he had made them.\n3. Same \u2014 Mentality\u2014Inferences.\nWhere, upon the trial for murder, the declarations of the deceased are admissible in evidence as dying declarations, and all the evidence tended to show that he had made them voluntarily and without suggestion, but after lingering a few days he had become unconscious preceding his death, conjectures are not available as a defense that the declarations were made at a time that the condition of the deceased rendered his mind incapable of comprehending his declarations, or that they were drawn from him solely as a result of questions ashed him at the time, and were without foundation in truth.\n4. Same \u2014 Verdict\u2014Conviction.\nWhere the prisoners on trial for murder have been identified by the competent dying declarations of the deceased as his murderers, and there is evidence that the defendants had a grudge against the deceased, had declared that \u201cthey would get him,\u201d and the death resulted from a conspiracy they had formed to kill him: Held,, the evidence was sufficient to sustain a verdict convicting the prisoners of murder in the first degree.\n5. Criminal Law \u2014 New Trials \u2014 Newly Discovered Evidence.\nAnother trial for newly discovered evidence will not be granted in a criminal case, or a motion therefor sustained by the court, on the sole ground that some of the witnesses had since changed from their evidence given upon the trial.\n6. Jury \u2014 Criminal haw \u2014 Special Venire \u2014 Qualification\u2014Talesmen.\nWhere a juror has been drawn from the jury bos by the statutory method, to serve on special venire for the trial of the prisoner for murder, and summoned accordingly by the sheriff, C. S., 2326, an exception to a juror retained by the court that he has served on the jury within the last two years, and that prisoner\u2019s challenge of him has been disallowed, is untenable, the provision relating to talesmen not applying in such instances.\n7. Jurors \u2014 Challenging for Cause \u2014 Court\u2014Influence.\nA challenge of a juror for cause must he made in open court, and the refusal of the trial judge to entertain it privately, and not in the hearing of the jurors, upon the apprehension that they might be prejudiced by the challenge, is not subject to exception; the findings of fact thereon by the trial judge being conclusive on appeal, and being sufficient to sustain the ruling of the court.\n8. Appeal and Error \u2014 Evidence\u2014Hearsay\u2014Harmless Error.\nThat a witness on a trial for murder has stated to another witness what the deceased had stated to them, as a part of his dying declarations, is at least harmless, if objectionable as hearsay, when it is but a repetition of the evidence to which he has testified.\n9. Appeal and Error \u2014 Objections and Exceptions \u2014 Instructions\u2014Contentions.\nThe recitation of the judge of the State\u2019s contentions upon a trial for murder, if incorrect, should be called to the attention of the judge in time for him to make proper correction, or objection thereto will be considered as waived; and such cannot be objectionable as an expression of his opinion upon the facts when he has clearly told the jury that he had none and had not formed one, and his language was not in form or substance equivalent to such an expression of his opinion.\n10. Appeal and Error \u2014 Harmless Error.\nOnly prejudicial error is reversible on appeal.\n11. Homicide \u2014 Murder\u2014Implied Malice.\nUpon a trial for murder, malice, in a legal sense, will be implied from a wrongful or intentional killing of another, without lawful excuse or mitigating circumstances.\n12. Instructions \u2014 Witnesses\u2014Interest\u2014Appeal and Error.\nWhere the relatives of the prisoner on trial for murder have testified, an instruction that the jury should receive their testimony with caution and scrutiny is sufficiently explained by his further charge that after such scrutiny they must give it as much credit as the. testimony of a disinterested witness if they were satisfied that they were telling the truth.\nIS.Instructions \u2014 Excerpts\u2014Corrected Error \u2014 Appeal and Error.\nIf the trial judge in his charge to the jury has committed error in an excerpt from his charge upon the evidence of a conspiracy to kill, resulting in the death of the deceased, for which the defendants are on trial for murder, in omitting to charge that the jury must find that the accessories were'present at the time one of them did the actual killing, such error, if any, is cured by his having previously charged to that effect, the charge being construed as a whole.\n14. Witnesses \u2014 Accomplices\u2014Evidence\u2014Instructions.\nWhere an accomplice in the murder for which the defendants are being tried has given unsupported evidence tending to convict them, a charge of the court is without error to defendants\u2019 prejudice that while the jury may convict upon such evidence, it is dangerous and unsafe to do so; but if the testimony of an accomplice, taken with other facts and circumstances in the case, carries conviction to the minds of the jury, and they are satisfied of its truth, and also satisfied beyond a reasonable doubt of the guilt of the defendants, the verdict should be for their conviction.\n15. Instructions \u2014 Request for Instruction.\nWhere the trial judge has correctly charged upon principles of law in addition to those requested by the appellant, it cannot be held as error.\n16. Same \u2014 General Charge.\nThe refusal of requested prayers for instruction that have been more succinctly and pointedly incorporated in the general charge cannot be held as error on appeal.\n17. Criminal Law \u2014 Witnesses\u2014Accomplices\u2014Influence of Sheriff \u2014 Appeal and Error \u2014 Objections and Exceptions.\nWhere there is evidence that the defendants and another had accomplished their common purpose in killing the deceased, for whose murder the defendants are being tried, and there is evidence of the other person, theretofore convicted of the murder, that tends mainly, with dying declarations of the deceased, to convict the present defendants of the murder charged, the objection that this witness was peculiarly under the influence of the^ deputy sheriff in whose custody he had been placed while attending court, should be taken advantage of, if tenable, before the trial court, and will not be entertained when taken for the first time in the Supreme Court.\nAppeal by defendants from Gra/nmer, Jat October Term, 1922, of ONSLOW.\nTbis was a criminal indictment, tried at tbe October Term, 1922, of Onslow Superior Court. Tbe three defendants, George-Williams, Frank Dove, and Fred Dove, were tried jointly for tbe murder of Cyrus Jones. Willie Hardison was tried first, and separately from tbe three defendants, for tbe same offense, and was convicted of murder in tbe first degree. Tbe three defendants in tbis cause were also convicted of murder in tbe first degree.\nTbe evidence of tbe State was to tbe effect that Cyrus Jones, a mail carrier from Swansbor'o, who also operated an automobile for hire, was shot on tbe highway about a mile and one-balf from tbe town of Swans-boro, at or about seven o\u2019clock on tbe afternoon of 5 August, 1922. After be was shot, be drove bis automobile back to tbe borne of a neighbor, John Midgett, where be stopped, bis wife, at tbe time, being away from borne. Midgett answered bis cries for help and asked him what was tbe matter, to which he replied that be bad been beaten to death, and there was no chance for him, and asked that be might be taken out of tbe car and into bis home. Midgett then asked him who bad beaten him, and bis reply was, \u201cCollins, Williams, and Doves.\u201d There was ample evidence to tbe effect \u2019that Willie Hardison was known in tbe community as Collins.\nTbe news of tbe mysterious shooting of Jones was noised throughout tbe community, and bis neighbors hastened to bis bedside. He told those standing about to get tbe doctor \u2014 that there was no chance for him to live, and to different witnesses be stated that Collins, Williams, and Doves shot him in an effort to take bis car. H8 languished from Saturday until tbe following Wednesday night, mostly in a subconscious state of mind, when be died of meningitis, caused by a gun-shot wound inflicted in tbe left side of bis bead with a size four or six shot.\nHardison testified that some time prior to 5 August, Jones, who operated an automobile for hire, bad taken him and tbe three defendants to a place called Marines, some ten or twelve miles away, to a dance; that Jones bad an understanding with bis passengers that they were to leave at 12 o\u2019clock, and, failing to get them together at that time, be left them at Marines. Hardison said that tbe three defendants in tbis case told him that they intended to \u201cget\u201d Jones for leaving them at Marines; and on Friday night, before Jones was shot tbe following day, Hardison, tbe three defendants, Williams, Frank and Fred Dove, and one Clyde Sanders met at a tobacco barn belonging to one Nasb Bell, where Hardi-son was curing tobacco, and that they then and there agreed upon and planned the killing of Jones; that Hardison was to tell Jones the following morning that the three' defendants wanted him (Jones) to take them to a place called Stella on Saturday afternoon, and that they were to meet at or near a colored church a little more than one mile from the town of Swansboro. It was agreed that the gun with which they were to kill him was to be hid in the woods, and a bush was to be thrown in the road so as to indicate to the defendants where the gun was concealed. When this point was reached, they were'to stop Jones on the pretext that they had some whiskey hid in the woods and wanted to get it.\nHardison said that he saw Jones on the morning of 5 August and made the arrangements, and it was agreed that he (Jones) would come by for them about six or six-thirty in the afternqon. The evidence of the State is to the effect that Jones passed the colored church about six o'clock in the afternoon, having with him, as a passenger, one Captain Merritt, and that Hardison was standing in front of the church waiting for him. Hardison told Jones that they were ready. Later, the three defendants came by the church where Hardison was and told him that they would go on a road leading out from the main Swansboro road, referred to in the evidence as the Belt Road, and would there wait for Hardison to come with Captain Jones. Hardison said that Jones came by the church, took him in the automobile, and that they went out the road in the direction the three defendants in this action had gone; that the three defendants got in the car, and that when they reached a path that led to the place where Hardison stayed, he got out of the car, but he noticed, in a minute or' so, that the car had stopped about one hundred and fifty yards further up the road; that he went to the car and asked Captain Jones where the defendants were, and that Jones told him they had gone into the bushes to get some whiskey, so they said. Hardison says he went a short way into the bushes and there he found the three defendants in a squatting position, and that Williams had the gun drawn on Jones, ready to shoot, and that they made him (Hardison) take the gun and fire the fatal shot, which, he says, he did. Hardison says they all went to Jones after he was shot, tried to stop his hollering, turned the ear around and started him back on the road towards Swansboro, and that they all then fled.\nThere was evidence on the part of the State that the tracks around the automobile indicated that several persons had been in and around the car. There was further evidence to the effect that the three defendants were seen coming out of Swansboro in the direction of the colored church, and that the defendants Doves were seen within forty-five or fifty yards of the colored church about six o\u2019clock, and that the defendant \"Williams was seen a little before this time coming out of Swansboro.\nThere was some evidence to the effect that one of the Doves had stated during the week that he expected to be in New York the following week-, and Williams had also stated to one of his companions at the sawmill that he did not any more mind killing a man than he would a snake.\nIt will be necessary to state some of the evidence a little more particularly so as to fairly and fully present one or two serious questions in the case, which we will now proceed to do.\nDr. J. P. Henderson, witness- for the State, testified: \u201cAm a practicing physician at Swansboro; practiced since June, 1915; knew Cyrus Jones; called to see him the evening of 5 August this year; arrived about 8 o\u2019clock. He was at the home of Mr. Midgett, a next-door neighbor, in bed. His condition was what I would term shock; his pulse was very rapid. His* extremities were beginning to get cold. Showed evidence of a gun-shot wound in the left temple region. His clothes very bloody. There was a penetration of the skull just in front of the left ear at this point (indicating) about the size of a dime; the bone was detached but not broken away from the point of penetration; gun shot had penetrated left side of head from upper portion of the neck to the top of the head. The shots entered at an angle of about 45 degrees\u2014 very little more than that. I can show you better than I can tell you \u2014 \u2022 about like this (indicating) : entered so that penetration was upward. Larger number of shots seemed to have entered this part than any other place. It was the left temple region. Just about a quarter of an inch in front of upper insertion of left ear and above the zigmoid \u2014 that is the' process of the temple bone, which meets the process of the maxillary bone outside of the skull. Found one bruise on left costal cartilage near junction of the cartilage with ninth rib; there was a small bruise about an inch and a half in length, as best I can remember. Another bruise just below that smaller, about half the size of first. They were the only bruises, unless they were masked by these gunshot wounds. The wounds were on the left side; I believe he was conscious, partially conscious, I would say. Think he remained so about thirty minutes; did not regain consciousness afterwards that I know of. Died on the following Wednesday after shooting. Saw him after he was dead. Think he died of meningitis as result of gunshot wound.\u201d\nCross-examination: \u201cFrom character of wound, the probable position of person who fired the shot with reference to the body was at a point opposite the left side of the man\u2019s head. Shot seem to have entered direct, going slightly up. Probed some of the shot wounds, but not the inter-cranial wound, one inside the skull. No powder stain on person that I noticed. Impossible to tell just how many shot struck him. A great many, though., not a few. At a place indicated shot seemed to have gone in a wad; others just single shot wounds. Outer table of skull was broken. Dr. Jones made an incision in the scalp just at base of posterior extremity of left parietal bone, the bone that makes up the vault of the skull on the left side. Found outer table penetrated; did not ascertain whether shot entered brain at that point \u2014 probably they did. Large one of wounds or bruises on body, about inch and a half long, nearly inch wide; small one near inch square, about two and half inches apart. Skin what we term grazed; bruised, but not broken enough to bleed- \u2014 bruised in a scratchy way. Appeared to be same clothes on him when shot. Noticed no break of garment where bruises were. I said yesterday he was partially conscious \u2014 best I remember. Don\u2019t remember using term semi-conscious. Semi-conscious means partially conscious, and may mean more or less conscious. There was some consciousness \u2014 enough to cause man to speak when asked certain questions. I stated that in half hour of consciousness he had gone to stay, so far as I know. Shot had penetrated the brain and death resulted from that. Lower sho.t had penetrated the brain. Had gone upward at some kind of angle through the skull cavity, very slightly upward. At two places shot went in bunches. Place in front of ear was larger bunch; hole cut about the size of a dime.\u201d\nMrs. Cyrus Jones, widow of deceased and witness for the State, testified: \u201cLive at Swansboro; saw my husband after dark after he was shot, close to an hour after he was shot; he was unconscious; was notified at my father\u2019s about a mile from the village. \"When I got to him he was conscious, but I was overcome and unable to go to him for about 25 or 30 minutes, and when I then saw him he was unconscious. Couldn\u2019t say he regained consciousness before he died. Sunday afternoon appeared to be somewhat conscious. \"Witness details reason why she thinks consciousness may have returned to him. He died Wednesday after dark, around eight o\u2019clock, after Saturday on which he was shot. Eight around two o\u2019clock on his return from Maysville he left about $85 with me, on day he was shot, and kept $10. He was in the habit of bringing money from Maysville and leaving it with me when he got checks cashed for people or he would give it to them at the postoffice when they lived in the village, or would leave it with Mrs. Davis. He was mail carrier and ran automobile for hire. Frequently carried money for people to Maysville and back. Got checks cashed for people in the village right often. I suppose this was generally known in that section.\u201d\nJohn Midgett, witness for the State, testified: \u201cLive at Swansboro; knew Cyrus Jones; saw him afternoon of 5 August somewhere around seven o\u2019clock. Was eating supper; heard a car pass going in, heard somebody hollering, and jumped up and ran to the door; looked down road; jumped out and ran down there and then saw it was Mr. Jones, and I ran up to him and said, 'Cv, what is the matter ?\u2019 (Each defendant objected and excepted to the question and answer and each part of the answer separately.) He says, \u2018I am beat all to pieces. Take me and carry me in the house and get a doctor. There ain\u2019t no chance for me.\u2019 I took him out and carried him to my house and asked him, 'Oy, who beat you?\u2019 (Each defendant excepted to question and answer.) He said, 'Collins, \"Williams, and Dove.\u2019 I said, 'Cy, what did they beat you about?\u2019 He said they were taking his car. I asked him where he wanted to go, and he said 'To your house,\u2019 and I carried him and set him on the bed and he called for water and I gave it to him and he spit it out. Told me to get the doctor for him, take him out of the car and to the house and get him a doctor, and that there was no chance for him. I got Freeman to go for the doctor, who was there about twenty minutes-after I took him out of the car. Before I asked him who 'beat him up,, he stated there was no chance for him.\n\u201cQ. Who did he say beat him up, if anybody? (Objection and exception by each defendant to the question and the answer.) Witness answered, 'Collins, Williams, and Dove.\u2019 He remained in my house until he died; was conscious when the doctor got there. Lived about twenty yards from me; died Wednesday, seven minutes after eight o\u2019clock following 5 August.\u201d\nCross-examined, the witness testified: \u201cHis statement to me about who shot him was made about seven o\u2019clock. I told it that night \u2014 don\u2019t know exactly what time nor to whom. Don\u2019t remember whether I told it to the first people who came. When I first asked him, he said Collins. Don\u2019t know how many Collinses in that neighborhood, nor how many Doves. Some people call him Willie 'Collins,\u2019 and some call him Hardi-son. Knew his name only as Collins up to the shooting. Told crowd there what the sick man had said. Don\u2019t know that I told it as soon as I got there. Went with the crowd that night to try to ferret out things. Went to John Dove\u2019s twice. Went first and examined guns \u2014 found nothing wrong, none of Dove\u2019s guns had been shot. Went back the second time' and took Frank and Fred Dove down before the mayor, and guess the mayor examined them separately, and examined whatever - evidence they could get. The boys then went back home and were arrested later. I went with them to George Williams\u2019 house that night. \u00e9 They examined the guns and found no gun there that had been shot; found only one gun. We examined Dove\u2019s, Williams\u2019, and Jimmie Harper\u2019s houses that night and found no freshly shot guns. We examined the guns. Harper and his son Henry came to the door at his house. I think they examined colored people\u2019s houses all around there that night after the wounded man had told me what he told and after I had told it to others. There was in the neighborhood at that time John Dove and his brother and his son Jimmie and Frank and Fred Dove, all of them and the old man were there. We went to John Dove\u2019s, brother\u2019s house the night of the shooting. He lives about 350 yards from the place of the killing, I suppose. Suppose John lives something like half- a mile \u2014 maybe nearer a mile. I guess Frank and Fred lived with John. Was only with the crowds that went to Dove\u2019s and Williams.\u2019 I declined to talk with counsel for the Doves about the matter after I had been subpcenaed by them. The reason was I didn\u2019t want to tell about it until I got on the stand where they could all hear. Was not under subpoena by State at that time, but was subpoenaed by the defendants. Time Jones made the statement that he was done for, was before taken out of the car. I told the solicitor what I knew about it before that time.\u201d\nR. W. Freeman testified: \u201cLive at Swansboro; saw Jones on evening of 5 August; was down town and coming back home, got right to the gate. My wife came and said somebody hollered in distress, ran down the road, and got in a few steps of him, and John Midgett asked me to get the doctor, and said Cy was beat all to pieces.\u201d (Defendants, in apt time, objected on the ground it was hearsay; overruled; each of the defendants excepted.) Court said: \u201cWhat the witness has testified to is not substantive evidence, but is-to corroborate the witness John Mid-gett. If you find it does so, you being the judges.\u201d Witness further testified, \u201cI got the doctor as quick as I could; Oy told the doctor that if they didn\u2019t do something for him he was gone.\u201d\n\u201cQ. What other statement did you hear him make?\u201d (Objection by defendants; overruled, and defendants excepted to- the question and answer.) \u201cA. He said Collins and Dove murdered him or beat him. This was before the doctor arrived. He was in the house sitting up on the side of the bed. I heard his brother ask him who did it.\u201d \u201cQ. What did he say?\u201d (Objection by defendants to question and answer; overruled, and defendants excepted.) \u201cHe said Collins. That is all he said that time. His condition was very bad, bleeding. Looked like he had been beat to death and shot. The car was shot and bloody. 1 The crossbars of the ear that hold the top had been shot, and I think some shot had penetrated through the top. Nothing the matter with the car except the shot through the top and cross-piece, except it was bloody all over the seat; pretty near a quarter inch deep in blood. There must have been a gallon \u00f3r more blood in the car. Also saw two puddles where he was shot. This was next day. Must have been a half gallon at each place. Was blood on the inside of the car and indentation of the brace \u2014 \u2022 two puddles of blood on the outside. Brace looked like some solid wad had struck it; like two or three shot might have gone together. Brace kind of battered up. Was there in five or ten minutes after Jones was taken to Midgett\u2019s. First beard of it 50 or 75 yards away. I ran to it. Think Jones was conscious. Am not a doctor. Couldn\u2019t swear he was conscious. Must have stayed an. hour before I went home; was there off and on till one or two o\u2019clock. Didn\u2019t see bruises on body.\u201d\nI. E. Rogers testified: \u201cI live at Swansboro; saw Jones night of 5 August; first saw him sitting on his bedside at John Midgett\u2019s with his head hanging over, moaning and groaning \u2014 bloody all over \u2014 looked like he had been terribly beaten. (Exception.) I sat by him and said, \u2018Cy, what is the matter with you ? \"Who\u2019s been beating you up like this V He says, \u2018Collins and Doves.\u2019 (Each defendant in apt time objected and excepted.) He said, \u2018I wish somebody would run my car in the garage. It is out there in the road and somebody might run into it.\u2019 It wasn\u2019t but a little while before the doctor came. He said, \u2018Doctor, if you don\u2019t do something for me I shall die.\u2019 \u201d (Objection to above by each defendant, and exception by each defendant.) The witness further testified: \u201cI think Mrs. Freeman and Mrs. John Midgett and maybe Richard Freeman were there. He was in Mr. Midgett\u2019s house. Saw him next day, Sunday, pretty low and unconscious.\u201d\nWillie Hardison, witness for the State, testified: \u201cMy name is Willie Hardison. Knew Captain Jones nearly two years. Captain Jones hasn\u2019t taken me to Marines. I have only been there once and came back with Hash Bell and his wife and two other men.\u201d The witness had been asked if Oaj>tain Jones ever took him, Frank Dove, Fred Dove, and George Williams to Marines prior to 5 August. Being asked what the defendants said to him with reference to Cyrus Jones leaving them at Marines, said, \u201cThey told me that they had it in for him and were going to get him; that George Williams, Frank Dove, Fred Dove, and Henry Harper told him that, two or three weeks before Jones was killed. They said he carried them down to Marines to a dance and left them, and they had to get some one to bring them back; told me at church on Sunday two or three weeks before he was killed. Told me nothing else but that they had it in for him and were going to get him. I saw them after that, maybe Sunday, when I went to church and Sunday School. Didn\u2019t see them subsequent to that when they had a conversation relative to killing Captain Jones.\u201d Being asked by counsel, \u201cDid you meet with them at the tobacco barn? Now just go ahead and state to the jury all you know about Fred Dove, Frank Dove, and George Williams being in the plot to kill Captain Jones.\u201d Witness answered, \u201cThey didn\u2019t tell me anything about a plot to kill him; just asked me to ask him to take them to Stella to do some trading.\u201d Witness being further requested by counsel for State, \u201cWell, just go ahead and tell everything they said to you at the barn.\u201d Said, \u201cI was at the barn that evening when Nash Bell came from Greenville, and I came and told him I did not have any oil to cure tobacco witb, and just before dark Fred Eenderson came from Bear Creek and Nasb Bell was fixing to go to town in bis car, and be went witb Fred and wben be got back be called me and I went to tbe bouse, and be told me to come -in and get supper, and I told bim tbat I bad bad supper, and while I was there Frank Dove, Fred Dove, Cheevey \"Williams, and Red Harper and Henry Harper came there, four boys.\u201d Tbe court: \u201cWhat Williams did you say ?\u201d Answer: \u201cGeorge Williams did not come there to tbe bouse. Wben I went back to tbe barn, George Williams was there at tbe barn. No one but bim was there. He and I sat down and drank some wine, and be said be wanted me to ask Captain Cyrus what be would charge to take four bead up to Stella to do some trading, and be asked me to loan bim tbe gun, and I said I would, but didn\u2019t have any shells, and be said be bad to burry back borne and go to a lodge meeting. I told bim be need not burry, and be said be bad to go borne and put bis clothes on, and be went, and directly I beard a car leave and Frank Dove, Fred Dove, and Henry- Harper came out there, and Frank Dove asked me to ask Captain Cyrus, and I said I would, and they sat around there talking and wanting me to. go back to tbe bouse after some wine, so they sat around there a little while and then 'went on home. I stayed at tbe barn all night curing tobacco. Next morning I went to Simon Bruton\u2019s after some shoes and returned after mail came in and went to Swansboro and to tbe mill and came back, and Captain Cyrus came around tbe corner and drove up after some gas and went in postoffiee, and a man came behind bim and wanted gas and be bad to move bis ear, and I jumped on tbe running board and told bim tbat George Williams asked me to ask bim bow much be would charge to take four bead up to Stella to do some trading, and be said be was going to Maysville for a man and it would be pretty late before be got back\u2014 somewhere between six and seven o\u2019clock \u2014 and be went on and I went up borne witb bim and got out, and tbat evening I carried tbe gun down to George Williams\u2019 bouse right open on my shoulder \u2014 about three-quarters of a mile. I went to tbe church bouse, was sexton of tbe church, and directly after I got to tbe church Frank Dove came by with horse and buggy and I jumped in and took my can to get some oil down town, and Frank said be would carry tbe horse back, so tbat evening, about an hour after they bad gone, they all came back to tbe church, George Williams, Frank, Fred, and Henry Harper. They told me wben be came to bring bim on up there to Dr. Blount\u2019s road, a little road tbat leads up there by Sanders\u2019 \u2014 and they would be up there by tbat little field wben I got up there. About tbat time Captain Jones came by and bad one man witb bim, and the preacher came along after tbat and I shook bands witb bim and told him I was going up tbe road there by Dr. Blount\u2019s, and I would overtake bim; so I got into tbe car with Captain Cyrus and went on up there not quite a hundred yards. I was the only one in there with Captain Jones, and there were four head of them when we got up there \u2014 all but Henry Harper, so I backed out, knowing there were four of them, so I said being as there were four of them and they were loaded I would go on up there to my road and get outso George Williams got in front and the two Doves behind. I got in with them, and when they got to my road they put me out and then they hadn\u2019t gone far when the car stopped and I hadn\u2019t left this road and I went up there and.asked where the boys were, and Captain Jones said they had something to drink and had gone in the woods. They had left the car and gone in the woods, so I went around there in the woods and when I got down there they handed me the gun \u2014 George Williams did. The Doves were right there. The Dove boys said, 'Go and shoot,\u2019 so I up and shot the man. It was right in the woods and when you step from the car track you are right in the woods, and he leaned over on the left side and Frank Dove grabbed him to keep him from hollering. George Williams was standing up there by him, and I got scared and ran and overtook the preacher. I went on by the path I was going before and 'on home. I carried the gun on until I got nearly home and hid the gun \u2014 threw it in the woods. Got it that night. Carried it home that night. When I started to run, after Captain Jones was shot, they told me not to tell it, that it would ruin their lodge. They said it several times. I was running. George Williams said it \u2014 not to tell it, that it would ruin the lodge. They told this six or seven times while I was running, before I got to my road. Don\u2019t know where I got the shell that I shot him with. Gun was loaded. Not loaded when I gave it to George Williams. I didn\u2019t have but one shell and -shot that shell that evening over in the field at a crow. The shell had been in the house a good while. Nash Bell got it down at Marines a good while before\u2014 was old and couldn\u2019t see any figures on it. Boys said they wanted Captain Cy to carry them to Stella \u2014 some fifteen miles from the church, I reckon. Been down there two years lacking about two months. Came from Belgrade. Was driving a log wagon out there and Nash Bell took me in, as I had no' father and mother. Didn\u2019t start from Swansboro with Captain Jones \u2014 got in with him there at the church, where I was cleaning up \u2014 colored church about a quarter of a mile from where the shooting took place. Boys waited for me somewhere around half the distance, not quite half. Boys were waiting at the field Dr. Blount lives in at one edge of it. Right on the front there is a little woods and the field between, and as you leave the main road it goes on out where a little road goes through back of Dr. Blount\u2019s house and comes out here by his gate \u2014 Mr. Harry Stanley\u2019s. There is no house between the church and the field there at Dr. Blount\u2019s. After you leave the church there is another little field on tKe road besides one I talked about. No house on it. Somewhere around 75 yards to Dr. Blount\u2019s field. Uncle Lias Ambrose\u2019s house is first. When you are coming down towards the church you get to his house in the field before you get to Dr. -Blount\u2019s field. When you are going out from the church towards where the killing took place, you first come to a little field. There are fields on either side of the road, and you get to that field on one side of the road about three acres, and on the other side of the field about four acres. The three-acre field is on the back side of the church from main Swansboro road. The church site right on the hill as you come from town. About 25 yards back of that church is the four-acre field on the right as you go towards the place of the killing, and on the left there is a three-acre field, and then you go on, and these boys were right at the corner of this four-acre piece. Didn\u2019t pass any house from church to where they were. Uncle Lias\u2019 house not on that field. Boys were standing right at the corner of this road that goes through by Dr. Blount\u2019s house and comes into other road. There were three boys there and four were to go. Those three and Mr. Jones were all in the car when we left that place, George on the front seat and all of us started together. First house passed was Clyde Sanders \u2014 not far, don\u2019t know exactly how far. Next house passed, George Williams\u2019. I went with them about 50 yards beyond George Williams\u2019 and got out of the car.\u201d Being asked why he got out of the ear, he said, \u201cI was going home. I didn\u2019t know there was anything like that up.\u201d Being asked, \u201cWell, as you didn\u2019t know there was anything like this up, why did you say that the Harper boy backed out?\u201d He answered, \u201cHe backed out from going where he was going. I didn\u2019t stay long after I got out because the car went no ways \u2014 \u25a0 did not go anywhere. There is a crook up in the road, but they hadn\u2019t gone around that crook when they stopped. Went to the car because I thought they had a blowout or something. Don\u2019t know whether I had to go fifty yards or not. Didn\u2019t hear any blowout \u2014 went up as soon as the car stopped. Found Jones sitting in the car. Others not there, but about half length of the court room out in the woods. Asked where the boys were, and Captain Jones said they were out in the woods \u2014 had something to drink, and I went out there; found them fixing to shoot; kind of squatted with the gun cocked; pointing out in the bushes; didn\u2019t walk right up on them, kind of a path leading to where they were, I went beside them. Not far from them when they saw me \u2014 not right at them. Had gun about to his breast, George Williams did; squatted down; handed me the gun already cocked, told me to shoot Captain Cyrus, and I said, L haven\u2019t got no harm against him,\u2019 and he said, \u2018Shoot the man or we will kill you and him, too.\u2019 I was on the side of them \u2014 about the same distance from Captain Jones as they were. They were all right in a bunch. Didn\u2019t hold gun long before I shot. Said nothing after they told me to shoot. I was standing up when I fired straight up. Sure didn\u2019t want to shoot him. I didn\u2019t back off and cover them with the gun and back up to Captain Jones instead of shooting him, because there were three of them and they could overpower me. I don\u2019t know what they had. They had their hands in their pockets. As soon as I fired we all went out of the woods, Captain Oy fell over on his side \u2014 on his left side, the side he was shot from. I didn\u2019t stay there mor\u00e9 than a minute \u2014 said nothing to him; put my hand on him to see where he was shot \u2014 put it on his head. I didn\u2019t mean to kill the man. Fired to miss him and the wrong shot killed him \u2014 he didn\u2019t say anything. Frank Dove put his hand over Jones\u2019 mouth and I ran off. I left them at the car. Had to go about three-quarters of a mile to get back home. Threw gun in the woods about 200 yards from Nash Bell\u2019s; threw off across ditch; got back to Bell\u2019s about dark. He arid his wife sitting on porch. I got with preacher. Hid gun before I got up to the preacher where I got on the main road. Preacher was ahead when I hid it \u2014 about 50 yards ahead. Hid gun because I was scared that they would put it all on me because I had the gun. Reason I didn\u2019t tell right away, I had been forced to shoot Jones, because I didn\u2019t know what they would do with me. Had gun in my hands until I saw the preacher, up side of my body swinging it. Carried it on my shoulder when I went to George \"Williams\u2019, but was running and had it in my hands when I was returning. Had gun in hands when I left Jones\u2019 car \u2014 ran all the way till I saw the preacher; got to Nash Bell\u2019s after supper, about dusk dark. Preacher was taken on in kitchen. I didn\u2019t eat any supper; went out on porch awhile. Had been curing tobacco and had not slept, so went on out and to bed. Had dropped off to sleep when people came to Bell\u2019s. Didn\u2019t hear them when they came up. Bell\u2019s wife standing at the front door talking. I heard them say Captain Jones was killed and they didn\u2019t believe I did it, but knew something about it. I remained in bed. They asked Nash if I was there, and he said 'No.\u2019 Nash thought I was gone; went back very quick. I didn\u2019t go to sleep afterwards. . They didn\u2019t come back, but Mr. Clyde Pittman and others did. Don\u2019t know how long before they came back. After they left Nash Bell asked me if I knew anything about it; I told him no. I didn\u2019t borrow the gun from Nash; I lived there and had the gun at the barn \u2014 carried it-up to Williams\u2019 Friday evening abo.ut three o\u2019clock. Nash asked me where his gun was. I told him out at the barn leaning against the arch \u2014 barn about 20 yards from house. He went out and returned, said gun wasn\u2019t there; told me to get it pretty quick. I went and got it. About ten or fifteen minutes afterwards second crowd came. I was upstairs again and. in bed when they cairie the second time. They told me to put on my clothes and come downstairs. High sheriff, Mr. Clyde Pittman, called me down; didn\u2019t put on same clothes I had taken off that night because they were wet and lady didn\u2019t want me to leave them on the floor, so I took the clothes, pair of overalls, off; put on pair of dry pants; changed shirt; it was wet, too. I was wet through with water; little blood on the overalls; I hadn\u2019t even seen it; say blood was on leg of overalls. I didn\u2019t know it was there. They showed me a little blood on the cuff of my sleeve. Mr. Henry J arm\u00f3n did this and went upstairs and got the shirt. Some of them did this, didn\u2019t get overalls. When they brought shirt down and out to car in road I was there. They asked me if it was my shirt; I said yes. They asked me where I got the blood. I told them I reckon I had squashed a mosquito. Blood was on the cuff. I explained the blood on the overalls by my having stepped up on the running board and getting it on them. I hadn\u2019t seen that, though. They took me off \u2014 carried me to white folks\u2019 schoolhouse. Don\u2019t know all the crowd, but there was Henry Jarmon and the high sheriff. They asked me to tell them, and I told them I didn\u2019t know anything, and some of them were hollering, T wish we had a piece of rope,\u2019 and some said, \u2018Here is an inner tube, wonder can\u2019t we hang him with that ?\u2019 Some man shot down by my feet and somebody hit me, and they said they didn\u2019t want to hurt me that way, and took me to a log and said, \u2018Now, boy, tell the truth about it,\u2019 and I said I didn\u2019t know what to tell, and they put me across the log and little Henry Jarmon said, \u2018That isn\u2019t the way,\u2019 and he got me down and they hauled off and hit me about four times, and somebody hit me with a stick. I don\u2019t know who it was, and I told them the names, and they said, \u2018Well, you ought to have told us that at first,\u2019 and they went and got the other ones. They carried me back and two cars stopped at a man\u2019s house and the car I was in went on down to the church again. Handcuffed me to the steering wheel and left a man there with me. I didn\u2019t tell them anything ; just told them the other three, and they went back and got them. I did not tell them anything about who fired the gun then, but I did after I got to the New Bern jail. Talked to the high sheriff, this man here (points out Sheriff J. D. Williams of Craven County). He\u2019s first man I talked to besides the boy that was in jail that I talked to that night. Sheriff of Craven took me out in the room and asked me and I told him. Told him the same thing I told when I went out there and he asked me my age, and I told him fifteen years, and he asked if I had any living father and mother and I said \u2018No,\u2019 and he said, \u2018Just as a matter of business, go ahead and tell me about it.\u2019 So I told him these boys asked me to ask Captain Cyrus his charge to take four head up to Stella to trade, and I asked him, and he said have them ready between six and seven o\u2019clock and he would come back, so they came back by the church and told me they were going up the road apiece. We went up there and I got out at my road and the car stopped and I hadn\u2019t left the road, and I went up there and asked him where the boys were, and he said, round there in the woods, and I went over there in the woods and they handed me the gun and told me to shoot the man, and I said I didn\u2019t have any harm against the man, and they said shoot him, and I up and shot him, and went out in the road where the ear was and stayed there about a minute and jumped and ran. I talked to somebody in Onslow jail about it. I did not tell the truth about it \u2014 was scared to tell anything. Don\u2019t know who it was in Onslow jail. Little Henry Jarm\u00f3n and some more \u25a0of them talked to me. I talked to Mr. Pete Smith and Mr. G. W. Jones before I went to New Bern; told them George Williams did the shooting. \u2018On the way told them I carried the gun to George Williams\u2019 house before \u25a0the shooting; didn\u2019t tell them I carried the gun into the woods and hid it. Didn\u2019t tell Mr. Jones and Mr. Pete Smith that I took the gun out in the \u25a0woods and hid it. Didn\u2019t tell Mr; Jones and Mr. Smith that in jail, hut did tell them Williams did the shooting. Same man that was with Mr. Smith in jail went with me and the high sheriff to New Bern; don\u2019t remember his name. I told that man on the way to New Bern that I did shoot him, and told him I felt better after I told the truth about it. Was not with Mr. Oyrus Jones right often about Swansboro, only one time, the day of the killing, going out from Swansboro home, about two o\u2019clock. Went home as he was going back to Maysville after a man on-the late train; had understanding with Nash Bell I was going to buy his car, after cotton came off in the fall; was to make a cash payment of a hundred dollars when we sold cotton, if it brought anything. He gave me an acre and I had rented an acre from his father and planted cotton and sweet potatoes. I had helped make the wine Nash Bell had there. I know Frank Humphrey, not Jim. Loaned me 50 cents one time, which I paid back in a piece of meat. Don\u2019t know exactly when. Tried to borrow a dollar more from him and he wouldn\u2019t loan it to me, about a month before the killing. Didn\u2019t offer to sell him whiskey, because I had none to sell. Didn\u2019t try to sell Mr. Dick Freeman any whiskey, did not say that I had any whiskey out back of Pittman\u2019s field.\u201d\nCross-examined by Dove\u2019s counsel: \u201cSince they put the stick on me, I have told the thing only two ways \u2014 one to save my life until the court, that George Williams did the shooting. Told in the presence of Sheriff Williams and counsel of Doves the same thing I have told today. Said it was done with the man\u2019s gun I stayed with; said it when I carried the gun to George Williams\u2019 house. Neither of Dove boys ever went off with me on trip to Marines. Never knew either of them to go on trip with Captain Jones; only what they told me. Never knew either one to do that. Told you that Frank Dove, Fred Dove, George Williams, and Henry Harper got me to see if Mr. Jones on Saturday would take them to Stella to do some trading! Didn\u2019t swear yesterday in my trial it was to Maysville. Am certain I said Stella, and say Stella now. George Williams bad tbe gun wben I went out, and banded it to me. There wasn\u2019t any gun going up there in tbe car, wben they left me. Wben they put tbe paddle on me, I told that other folks were in it besides myself. They told me they knew I was in it, and it would be better for me and easier for me if I implicated other people. I told them I did not know anything about it. They put me across a log, face down; two men took bold of my feet. I would not respond. They beat me with a stick before I told them what I did \u2014 bit me four times with an inner tube, and once with a stick; then I told them what I told, and am telling now. I bad been down there before tbe mayor that same night and at tbe same time Frank, Fred, and George Williams were before tbe mayor. Also Baynor Blackwell was before tbe mayor. They examined me privately and listened to tbe witnesses. They didn\u2019t turn me loose \u2014 \u2022 turned tbe other boys aloose. I hadn\u2019t implicated them. Don\u2019t know why I didn\u2019t tell them then \u2014 other boys were in it \u2014 was scared to tell anything. Never told in tbe presence of Larry Stanley or others that I bid tbe gun out there where be was killed, nor that I dragged bushes nor put some pinetops on tbe road so I would know where to stop and know where tbe gun was, nor that I bid gun out by tbe fence and told George Williams where to get it. I just told what tbe boys told me about Captain Cyrus carrying them off and not bringing them back. Just wanted people to believe what was right. Tbe lodge was tbe Knights of Gideon. Dove boys not members \u2014 old enough but hadn\u2019t joined. Williams was a member. Knew that Captain Cyrus carried money for other people because he cashed check for me and Nash Bell\u2019s wife once, didn\u2019t know bow much be carried. He was a' mail carrier. Was not in store that afternoon wben be paid for gasoline. Got bis gas outside and went in tbe store with a crowd of people to pay for it. Didn\u2019t see bis money at tbe postoffice that day. My oldest brother killed my father, I couldn\u2019t even walk or talk. I was convicted here yesterday of murder in tbe first degree; went on stand in my own behalf \u2014 swore I was forced to shoot Captain Cyrus. Tbe boys were over in tbe woods some little distance from tbe road. I went where they were. They made me shoot \u2022him. I told them be bad done me no barm, and I didn\u2019t want to shoot him. Captain Cyrus could bear good, but wasn\u2019t near enough to bear. Could bear all right, and bad good .eyesight. Front of car was turned towards Maysville away from church; left these three boys at tbe car, which was right in the road. When I shot, Captain fell over tbe door of tbe ear towards me \u2014 blood came out. I went and left tbe other boys there; Frank Dove bolding bis mouth; my band must have been mighty close to tbe blood. Did not bide my clotbes. Threw overalls out on tbe porch, not in tbe bos. Put shirt in tbe back porch, not with overalls. Threw gun in bushes, and while in the act of getting back in road, I called preacher and he looked back and said something to me. Gun was broken apart. This done just as I was coming out on the main road, just before I got to the preacher. Just running. along with it from killing to there, was in my hands while I ran past Graham\u2019s. Saw nobody at Graham\u2019s and saw nobody at Sanders\u2019 while going to where I shot Jones, nor anybody at George 'Williams\u2019 while going; between six and seven o\u2019clock when I went by Williams\u2019. Wasn\u2019t any time from time I left church till I got back where I met the preacher. Did it in a hurry \u2014 was scared and ran. When I left two were standing up and Frank Dove was holding his mouth. They came out of the woods; halfway from here to the door, stood up there by him. I beat the crowd and left them standing there. Bought shell evening he was killed from Mr. Bartley at Swansboro. Nobody acting as my lawyer till Mr. Bender was appointed. Man unknown to me talked to me a little about the matter in the room yesterday. When counsel for Frank and Fred Dove came to see me in Craven jail, they told me that they didn\u2019t represent me and for me not to tell anything that would incriminate me. Was not in the Holland road talking to two girls when Eugene Graham came along on Saturday afternoon of murder. Didn\u2019t try to get two girls to go to church and help me to clean up in a hurry. When I was going out there that afternoon didn\u2019t think any harm was going to be done to him. Thought they were all going off on a nice trip. Didn\u2019t have remotest idea any harm was going to be done him. Didn\u2019t tell people I told Captain Cyrus I was going to get wine out there in the woods. I did tell Captain Cyrus that morning that the two Doves and Williams wanted him to take the trip. They wanted to go to Stella because they didn\u2019t have the quality of clothes at Swansboro they had at Stella. Stella was not on railroad, nor ocean, but on a creek. More suits of clothes there than at Swansboro. Big stores there, I don\u2019t know owner. Do not deal in Stella. Told Mr. Fred Pittman the night they questioned me that man I got in the car with at church was a stranger and I didn\u2019t know him \u2014 told a lie because scared and didn\u2019t know what they would do with me. Just told that George Williams did the shooting to save my life till court. Am now telling the same story I told on the stand' yesterday. Stated on cross-examination yesterday that I said George Williams did the shooting. Haven\u2019t talked with the solicitor about it, nor to counsel for State, till I got on the stand-. I think the man in the room with me yesterday was Mr. Woodus Helium. The man I stayed with sent to the Secretary of State and procured a Ford automobile license in my name, because I was to buy the car when cotton came off. He got it in my name so wben I bought the car the license would be on it. Don\u2019t know bow long it was before the killing. Signed Nash Bell\u2019s name to paper without his authority and got some money. He after-wards paid it to keep me out of trouble. Captain Cyrus had the new Ford a little while before he was killed; don\u2019t know how long. Had seen his new Ford one day out at church before day he was killed. I told Captain Merritt the night they had me down there before mayor that I had on the same clothes then that I wore during the day, and he told me I was a liar, that I had on blue overalls and shirt and a straw hat when he saw me at work. I carried the shell home I bought from Mr. Bartley. Didn\u2019t give it to George Williams when I gave him the gun. It was at Nash Bell\u2019s when I left there. I left the shell there. Nash had it; got it after murder was committed. I had it in the pocket of my overalls; was a new shell; the one you have is the same one.\u201d\nCaptain Merritt testified: \u201cI live at Swa'nsboro; knew Cyrus Jones^ was'with him afternoon of 5 August from Belgrade to Swansboro, bringing me home in his new car. I was sick, and as we went he slowed down just before -we reached the colored church, and I thought it mighty strange, and after slowing down he went a little further and slowed again, and directly he stopped and saw that boy.\u201d (Pointing to Willie Hardison.) Q. \u201cYou can tell what he said to that boy.\u201d (Objection by the defendants, and admitted by his Honor only for the purpose of corroborating the witness Willie Hardison.) A. \u201cWillie Hardison said, \u2018We are ready, we are waiting for you right now.\u2019 \u201d (Defendants objected and excepted to each part of the answer severally.) Witness testified further: \u201cHardison was standing on the colored church grounds. Captain Cyrus drove on and put me out and turned around and went on back; took a straight course in the direction Willie Hardi-son was. I went to the place where Mr. Jones was shot the next' day. It was on the road that turned up there by the church; I never went up the road at all \u2014 just rode on by the church. It is off the main road on what is known as the Belt Eoad, I guess. I didn\u2019t wait up there often. I didn\u2019t see either one of the defendants, Williams and Doves, up there when Captain Jones brought me. Have known the defendants Doves ever since I have been around there, some 40 years, I think. Am not referring to the boys, had no dealings with them, was referring to their father, John. His character is good so far as I know. They have chartered my boat and I have had frequent dealings with the older ones; not acquainted with the reputation of Willie Hardison.\u201d\nThere was other and voluminous testimony tending to show the guilt of the defendants, and each of them, and that they conspired and acted together at the time of the homicide to murder Cyrus Jones, and that Hardison bad tbe gun, and sbot Jones, tbe other defendants being present, aiding and abetting and encouraging him to do so, tbe shooting being from ambush.\nThe evidence for the defendants tended to show that they were not at Marines with Cyrus Jones, and had no feeling against him or resent toward him, and no reason to murder him, and that they did not kill him or assist in doing so, not even being present when it was done.\nUpon this evidence and the dying declarations of the deceased, the jury convicted all of the defendants of murder in the first degree. Defendants appealed from 'the verdict and judgment.\nAttorney-General Manning, Assistant Attorney-General Nash, I. M. Bailey, and McLean, Varser, McLean & Stacy for the State.\nDuffy & Day for defendant Williams.\nWard & Ward for defendants Frank and Fred Dove." }, "file_name": "0643-01", "first_page_order": 709, "last_page_order": 736 }