{ "id": 8621321, "name": "STATE v. TOM ELLIS, Jr.", "name_abbreviation": "State v. Ellis", "decision_date": "1933-01-04", "docket_number": "", "first_page": "836", "last_page": "840", "citations": [ { "type": "official", "cite": "203 N.C. 836" } ], "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": "193 N. C., 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217808 ], "opinion_index": 0, "case_paths": [ "/nc/193/0701-01" ] }, { "cite": "187 N. C., 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653223 ], "opinion_index": 0, "case_paths": [ "/nc/187/0022-01" ] }, { "cite": "171 N. C., 795", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "192 N. C., 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620699 ], "opinion_index": 0, "case_paths": [ "/nc/192/0225-01" ] }, { "cite": "161 N. C., 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270501 ], "opinion_index": 0, "case_paths": [ "/nc/161/0280-01" ] }, { "cite": "138 N. C., 600", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "156 N. C., 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272474 ], "opinion_index": 0, "case_paths": [ "/nc/156/0636-01" ] }, { "cite": "78 N. C., 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697200 ], "opinion_index": 0, "case_paths": [ "/nc/78/0509-01" ] }, { "cite": "68 N. C., 413", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 583, "char_count": 10142, "ocr_confidence": 0.484, "pagerank": { "raw": 1.173895764938311e-07, "percentile": 0.5870618325624389 }, "sha256": "ddf11e2d0122052741c839f6793bf528897c4c3d0c9c6a7382376bd5453f087b", "simhash": "1:b1fe83207cad4b61", "word_count": 1777 }, "last_updated": "2023-07-14T19:49:40.426370+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. TOM ELLIS, Jr." ], "opinions": [ { "text": "Adams, J.\nAfter describing the wound the first witness for the State testified that Beauchamp\u2019s death bad been caused by \u201cthe bullet that went through bis bead.\u201d He bad -not qualified as an expert witness and for this reason the defendant excepted to the testimony. Considered in the light of all the evidence the conclusion of the witness seems to be self-evident; but conceding for the moment that bis opinion is technically within the domain of expert evidence (S. v. Jones, 68 N. C., 413), we think the error, if any, was cured by testimony subsequently offered by the defendant. Dr. Greene, a witness for the defendant, made an examination of the dead body. He said the caliber of the pistol was 38 or 44, the diameter of the wound as large as that of a lead pencil, and the place of exit the size of a nickel. This wound, he asserted, could have produced instant death and the only other wound he found was not sufficient to kill. This is the defendant\u2019s evidence and from it only one deduction can be made: death was caused by the pistol shot. The first, second and thirteenth exceptions are therefore overruled. S. v. Bowman, 78 N. C., 509; S. v. Stewart, 156 N. C., 636.\nBefore the ninth day of March, Richmond Bailey, the principal witness for the State, had made several statements in regard to the homicide which were inconsistent, if not positively contradictory. He urged as a reason his fear of the defendant, who \u201cwith an anathema in the corner of his eye\u201d had repeatedly stressed such reminders as these: \u201cIf you ever tell it, you have told your last\u201d . . . \u201cIf you ever tell this, off goes your head.\u201d At the time mentioned Bailey told the sheriff he wanted to take back what he had previously said \u201cin some particulars\u201d and to make a clean breast of the whole matter. He then gave the officer a written, signed, and corrected statement of the facts which was read to the jury. The defendant excepted. The question arose in S. v. Grier, ante, 586, and was resolved against the contention of the appellant, the decision in that case disposing of the eighth and ninth exceptions.\nThe court instructed the jury that they were at liberty to consider the credibility of the witnesses, their interest in the result of the verdict, their sympathy, their prejudice, their means of knowing the facts, \u201cor any other circumstances.\u201d The defendant excepted to the last clause on the ground that it includes all circumstances whether in evidence or not; but the objection is removed by other instructions restricting the deliberation of the jury to circumstances which, having been offered in evidence, tended to \u201cthrow light upon the matter.\u201d An exception of this sort must be considered in connection with the entire charge and is not to be determined by detaching clauses from their appropriate setting. S. v. Exum, 138 N. C., 600; S. v. Tate, 161 N. C., 280; S. v. Lee, 192 N. C., 225.\nThe twenty-second exception relates to the court\u2019s statement of a contention made by the State in reference to the finding of the dead body several days after the commission of the homicide. The basis of- the exception is the alleged want of evidence upon which to rest the contention. The crucial point is whether there is evidence tending to show that the body was \u201cdiscovered\u201d at the instance of the defendant. Bailey testified: \u201cWe didn\u2019t have a conversation about the body going on, but we had one coming back. I don\u2019t know how he (the defendant) brought it up now, but he asked me a good one to tell to go in and find the body and keep him out of it; go in there and find it and say nothing about it, and I told bim I didn\u2019t know.\u201d Dr. Greene said: \u201cI was one of the first ones to get to the scene where the dead body was found. Mr. Thomas Ellis, Sr., told me that there was a dead man up there in the woods. I was at Mr. Ellis\u2019s. Mrs. Charlie Ward and Mrs. Samuel Hege found the body. Mrs. liege is Mr. Ellis\u2019s daughter.\u201d Upon consideration of all the evidence on this subject we are unable to say that there is none in support of the contention, at least so far as it concerns the defendant.\nIt is argued that the trial court disregarded the provisions of C. S., 564, particularly in failing to refer to an alleged combat between the deceased and the defendant before the shot was fired and in failing to apply the law to certain phases of the evidence. With respect to the evidence the charge is sufficient, and as to the instruction relating to manslaughter the defendant has no just cause of complaint. The charge points out and explains the substantive features of the case and in reference to those which were subordinate it was incumbent upon the defendant to make proper request for special instructions. S. v. Merrick, 171 N. C., 795; S. v. O\u2019Neal, 187 N. C., 22; S. v. Johnson, 193 N. C., 701.\nThere are other exceptions, either formal or taken as a matter of precaution, which call for no special comment. We find\nNo error.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "Attorney-General Brummiit and Assistant Attorney-General Seawell for the State.", "' A. G. Bernard and B. G. Brock for defendant." ], "corrections": "", "head_matter": "STATE v. TOM ELLIS, Jr.\n(Filed 4 January, 1933.)\n1. Criminal Law L e \u2014 Admission of nonexpert testimony as to cause of death held harmless, there being export testimony to same effect.\nAVhere a nonexpert witness, after describing the wound, testifies that the deceased\u2019s death was caused by the \u201cbullet that went through his head\u201d: Held, conceding that the testimony was technically within the exclusive field of experts, its admission was rendered harmless by the admission of subsequent testimony of a medical expert to the same effect.\n2. Criminal Law G v \u2014 Admission of written statement of eye witness held not error although witness had previously made inconsistent statements.\nWhere an eye witness\u2019s narration of the circumstances of the killing of the deceased contains material variations or contradictions, and later he makes and signs a written statement and explains that his previous contradictions were due to fear of the defendant and that he wished to make a clean breast of it to the sheriff: Held,, the written statement was competent evidence for the consideration of the jury.\n3. Criminal Law I g \u2014 Instruction will be construed as a whole.\nAn instruction that the jury might consider the credibility of the witnesses, their prejudices, their means of knowing the facts, \u201cor any other circumstances,\u201d will not be held for error for the use of the words \u201cor any other circumstances\u201d when construing the charge as a whole the other circumstances referred to were confined to the related evidence on the trial.\n4. Same \u2014 Statement of contentions held supported by evidence.\nUpon the trial for a homicide the judge\u2019s statement of the contention of the State, in his charge to the jury, relating to finding the body of the' deceased at the instance of the defendant was excepted to on the ground that there was no evidence to support the contention: Held, under the facts of this case the evidence was sufficient to sustain the judge\u2019s statement of the contention.\n5. Same \u2014 Charge held to sufficiently explain substantial features of this case.\nIn this case held: the charge of the court sufficiently pointed out and explained the substantive features of the case, and as to the subordinate features the prisoner should have aptly tendered prayers for special instructions, and an exception to the charge on the ground that it failed to comply with C. S., 564 is not sustained.\nAppeal by defendant from Moore, J., at March Term, 1932, of Davie.\nNo error.\nThe defendant was indicted for the murder of Willie Beauchamp and was convicted of murder in the second degree.\nAccording to the State\u2019s evidence the defendant, the deceased, and Bichmond Bailey were together when the homicide occurred. Bailey, testifying for the State, related the circumstances. He met the deceased at Advance about 8 o\u2019clock Friday night, 19 February, 1932. At 11 o\u2019clock they went to the home of the deceased for a short time and thence about midnight to one Hudson\u2019s. They stayed at Hudson\u2019s until one o\u2019clock the next day when they started in the direction of Advance. They got some liquor at Hudson\u2019s and were drinking Friday night and Saturday morning. When they left there they had a quart in a bottle. They walked up the road and turning to the right near Ward\u2019s got a gallon of liquor in a straw stack. The deceased hid the liquor behind a log in tbe woods. They walked on to a sawmill site and saw tbe defendant coming down tbe road in a Chrysler coupe. Tbe car stopped; tbe defendant wanted some liquor; tbe deceased said be bad a gallon in tbe woods. They went to tbe log and tbe defendant took a drink. He and tbe deceased bad an argument about its being \u201ccopper liquor\u201d and about bis getting some of it \u201con wbat tbe deceased owed him.\u201d They went back through tbe woods, tbe defendant following tbe deceased and cursing. In bis band tbe defendant bad a pistol, blue steel, black handle. They stopped among some pines. Tbe deceased bad tbe liquor and tbe defendant claimed it. Tbe jug was on tbe ground; tbe deceased stooped to pick it up; tbe defendant said if be took it be would kill him. Beauchamp stooped again and tbe defendant shot him with tbe pistol. Tbe ball entered tbe left side of tbe face, ranged downward and backward, and went out on tbe back of bis bead near tbe right ear. Tbe defendant took tbe liquor and turning to Bailey said, \u201cLet's take this and pull a big one tonight.\u201d\nTbe defendant did not testify, but be offered evidence in explanation and contradiction, and insisted that be was not guilty of tbe crime. He introduced evidence of several inconsistent statements made by Bailey implicating others and exonerating tbe defendant. Bailey admitted having made a number of written statements and having refused to give tbe name of tbe defendant \u201cuntil be told tbe truth about it,\u201d but said be was afraid of tbe defendant because be bad threatened bis life.\nTbe deceased was killed in tbe late afternoon of 20 February. Tbe body was found on tbe following Thursday.\nFrom tbe judgment pronounced upon tbe verdict tbe defendant appealed, assigning error.\nAttorney-General Brummiit and Assistant Attorney-General Seawell for the State.\n' A. G. Bernard and B. G. Brock for defendant." }, "file_name": "0836-01", "first_page_order": 904, "last_page_order": 908 }