{ "id": 8631404, "name": "STATE v. ELMER MATTHEWS and JIM COOK", "name_abbreviation": "State v. Matthews", "decision_date": "1950-03-29", "docket_number": "", "first_page": "617", "last_page": "629", "citations": [ { "type": "official", "cite": "231 N.C. 617" } ], "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": "20 S.E. 175", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "115 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652791 ], "opinion_index": 0, "case_paths": [ "/nc/115/0706-01" ] }, { "cite": "162 S.E. 764", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626291 ], "opinion_index": 0, "case_paths": [ "/nc/202/0351-01" ] }, { "cite": "188 S.E. 421", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628566 ], "opinion_index": 0, "case_paths": [ "/nc/210/0686-01" ] }, { "cite": "55 S.E. 797", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "142 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652790 ], "opinion_index": 0, "case_paths": [ "/nc/142/0695-01" ] }, { "cite": "193 S.E. 716", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612821 ], "opinion_index": 0, "case_paths": [ "/nc/212/0484-01" ] }, { "cite": "25 S.E. 2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597507 ], "opinion_index": 0, "case_paths": [ "/nc/223/0031-01" ] }, { "cite": "43 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "166 S.E. 595", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615955 ], "opinion_index": 0, "case_paths": [ "/nc/203/0586-01" ] }, { "cite": "2 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630091 ], "opinion_index": 0, "case_paths": [ "/nc/215/0438-01" ] }, { "cite": "37 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615895 ], "opinion_index": 0, "case_paths": [ "/nc/226/0194-01" ] }, { "cite": "40 S.E. 2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620243 ], "opinion_index": 0, "case_paths": [ "/nc/227/0019-01" ] }, { "cite": "45 S.E. 2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625790 ], "opinion_index": 0, "case_paths": [ "/nc/228/0268-01" ] }, { "cite": "11 S.E. 2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622428 ], "opinion_index": 0, "case_paths": [ "/nc/218/0556-01" ] }, { "cite": "184 S.E. 7", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221608 ], "opinion_index": 0, "case_paths": [ "/nc/209/0414-01" ] }, { "cite": "168 S.E. 412", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617440 ], "opinion_index": 0, "case_paths": [ "/nc/204/0329-01" ] }, { "cite": "193 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217832 ], "opinion_index": 0, "case_paths": [ "/nc/193/0336-01" ] }, { "cite": "63 S.E. 1059", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 N.C. 813", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273075 ], "opinion_index": 0, "case_paths": [ "/nc/150/0813-01" ] }, { "cite": "7 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695753 ], "opinion_index": 0, "case_paths": [ "/nc/7/0571-01" ] }, { "cite": "33 S.E. 2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602344 ], "opinion_index": 0, "case_paths": [ "/nc/225/0174-01" ] }, { "cite": "32 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 825", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615827 ], "opinion_index": 0, "case_paths": [ "/nc/224/0825-01" ] }, { "cite": "31 S.E. 2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611534 ], "opinion_index": 0, "case_paths": [ "/nc/224/0645-01" ] }, { "cite": "27 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613591 ], "opinion_index": 0, "case_paths": [ "/nc/223/0563-01" ] }, { "cite": "21 S.E. 2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628303 ], "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0037-01" ] }, { "cite": "1 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629190 ], "opinion_index": 0, "case_paths": [ "/nc/215/0244-01" ] }, { "cite": "116 S.E. 736", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657547 ], "opinion_index": 0, "case_paths": [ "/nc/185/0685-01" ] }, { "cite": "154 S.E. 402", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599787 ], "opinion_index": 0, "case_paths": [ "/nc/199/0321-01" ] } ], "analysis": { "cardinality": 1131, "char_count": 29850, "ocr_confidence": 0.477, "pagerank": { "raw": 2.531848065494597e-07, "percentile": 0.8125579908326702 }, "sha256": "5970c01f0f4275b73b33056f9d535714cb665351f815a67db267bfc1dd3f2568", "simhash": "1:14a5d63e4e960ce1", "word_count": 5432 }, "last_updated": "2023-07-14T22:38:15.383158+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. ELMER MATTHEWS and JIM COOK." ], "opinions": [ { "text": "Seawell, J.\nThe record on appeal is voluminous and contains a multitude of exceptions. These required and have received careful consideration but space forbids elaboration here.\nThe phases of the trial most stressed in the appellants\u2019 brief and oral argument, and in which they find the more serious challenge to its validity, will be' discussed.\n1. The theory that defendants were entitled to a discharge as upon acquittal as grounded in the motions in arrest of judgment and similar motions affecting the verdict, has neither technical nor substantial merit. The theory is that there was only one charge against them, \u2014 that of felonious secret assault, \u2014 and the manner in which the court dealt with it bad the effect of nonsuiting tbe State thereon, which, under the statute operates as an acquittal, G.S. 15-173.\nConsonant with the practice here we regard the effect of the action taken by the court as simply withdrawing from the consideration of the jury the more aggravating and more serious elements of the offense charged, leaving to their consideration the lesser crime or degree of the offense. This, within the frame of the case presented, was favorable to the defendants, and certainly within the law and approved practice. Without it, it would still have been competent for the jury to convict the defendants of a lesser degree of crime charged. G.S. 15-169, 170; S. v. Jackson, 199 N.C. 321, 154 S.E. 402; S. v. Williams, 185 N.C. 685, 116 S.E. 736; S. v. High, 215 N.C. 244, 1 S.E. 2d 563; S. v. Jones, 222 N.C. 37, 38, 21 S.E. 2d 812; S. v. Bentley, 223 N.C. 563, 27 S.E. 2d 738; S. v. Weinstein, 224 N.C. 645, 31 S.E. 2d 920; S. v. Oxendine, 224 N.C. 825, 32 S.E. 2d 648.\nThe withdrawal of the more aggravated charge from consideration by the jury and submission of the less aggravated phase of the offense was within the discretion of the trial judge.\nClosely parallel with the foregoing subject was the exception taken to the fact that the trial judge did not receive the verdict of the jury as first tendered, in response to the formal question of the court as to how they had found. In it they found both defendants guilty, answering, \u201cYes, guilty of aiding and abetting,\u201d but the judge sent the jury back for further deliberation after further instructing them as to the significance of aiding and abetting while present.\nThe answer to this objection may be found in S. v. Perry, 225 N.C. 174, 33 S.E. 2d 869, loc. cit., 176:\n\u201cWhen, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict. S. v. Arrington, 7 N.C. 571; S. v. McKay, 150 N.C. 813, 63 S.E. 1059; S. v. Bazemore, supra (193 N.C. 336); S. v. Noland, 204 N.C. 329, 168 S.E. 412; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7.\u201d\nSee also S. v. Wilson, 218 N.C. 556, 11 S.E. 2d 567.\nThe conclusion to which the jury had come was not materially changed by their further consideration. S. v. Forshee, 228 N.C. 268, 45 S.E. 2d 372; S. v. Thompson, 227 N.C. 19, 40 S.E. 2d 620.\nThe instruction given was called for by the evidence that tended to show that the defendants acted in concert. S. v. Gibson, 226 N.C. 194, 37 S.E. 2d 316; among other things accommodating the person chosen to do the shooting by jockeying the car so that upon its return the shot could be fired out of the right window by a right-handed person.\nDefendants were tried for an assault with a deadly weapon and no special evidence was required beyond the intent to commit the unlawful act, and this will he inferred or presumed from the act itself. 1 McClain\u2019s Criminal Law, secs. 239, 240.\n2. The appellants urge that the confessions made by these defendants were involuntary and should have been denied admission in evidence. There is no suggestion that either of them was coerced, threatened, subjected to torture, physical or mental, worn down by repeated questioning, or otherwise mistreated in order to produce a confession as the purchase price of surcease from pain or weariness. The contention is that there was some implied promise, or at least hope held out in the conversation between Wyatt and Cook that the defendant would be treated more leniently. Wyatt had said, \u201cJim, we know it was you. You had better come clean.\u201d There was no further inducement.\nAs careful as this Court has always been to see that incriminating statements made by persons accused of crime are in fact and in deed voluntary before admitting them in evidence, free from the influence of promise or undue persuasion, and fully recognizing that necessity, we are unable to class the remarks made by Wyatt to his nephew Cook in any of the objectionable categories.\nThe evidence discloses that Wyatt went to talk with Cook on his own initiative without any evidence that he went, as contended by appellants, with official procurement. He does not appear to have been an emissary, stooge or agent provocateur of the officials. However, the sheriff was present during part of the conversation and this must be given due consideration. The sheriff also warned him that what he said could be used as evidence for him or against him, and this warning, while not required in this State, (S. v. Dixon, 215 N.C. 438, 2 S.E. 2d 371; S. v. Grier, 203 N.C. 586, 166 S.E. 595), has been uniformly considered as bearing on the voluntariness of the statement.\nMatthews, when first arrested was asked by Sheriff Bardin: \u201cWhat in the world were you thinking about ?\u201d And Matthews replied, \u201cI don\u2019t know.\u201d The sheriff then said, \u201cYou were with the boys, weren\u2019t you?\u201d And Matthews replied, \u201cYes.\u201d\nLater, at the jail, all three of the defendants being present, Cook was asked to tell what happened and gave a detailed account of the affair, stating that \u201cwe went out to Mr. Wyatt\u2019s house in Elmer Matthews\u2019 car and David Brock fired the bullets.\u201d Matthews, upon a simple question by the sheriff, admitted the correctness of the statement. Later on Matthews stated that he was driving the car and Brock and Cook were in tbe back seat; that the gun was fired from the back seat but that he did not know who fired it. Since Matthews, without persuasion or inducement, admitted the correctness of Cook\u2019s statement, he was not privy to any constitutional immunity which counsel for appellants can claim for Cook; and his objection to the admission of the evidence is untenable.\nThe card-index method of determining the case before us would be a poor substitute for reason, and a sense of justice both to the public and the men accused of crime. The Court is always happy to find and follow well reasoned precedent, but must in each instance be guided by its own reason and sense of right on a study of the facts before it, since, because of their infinite variety, every case must stand on its own bottom. In appraising the significance of the interchange between \"Wyatt and Cook, supposed to have elicited the self-incriminating statement, it is logical to assume that the reaction is normal to the stimulus; emotionally responsive to the appeal. There is nothing in Wyatt\u2019s exhortation to \u201ccome clean\u201d that should incite fear or inspire hope in the normal mind, \u2014-neither threat nor promise. It appears to be an appeal to conscience, which every person, not completely amoral, has in some degree; or to that indefinable urge to square himself with the truth which experience has shown is often an incentive to confession in the most abandoned.\nThe subject is one of repeated occurrence in our Reports and the following cases will be found apposite to the decision: S. v. Thompson, supra; S. v. Litteral, 227 N.C. 521, 43 S.E. 2d 84; S. v. Grass, 223 N.C. 31, 25 S.E. 2d 193; S. v. Oxendine, supra; S. v. Caldwell, 212 N.C. 484, 193 S.E. 716; S. v. Bohannon, 142 N.C. 695, 55 S.E. 797; S. v. Moore, 210 N.C. 686, 188 S.E. 421; S. v. Myers, 202 N.C. 351, 162 S.E. 764; S. v. Harrison, 115 N.C. 706, 20 S.E. 175.\nIn the Thompson case, supra, will be found a critical and comprehensive analysis of the whole subject, with pointed analogy to the instant case; in that case the Court held: that a statement to a defendant, \u201cit would be better to go on and tell us the truth than try to lie about it . . .; it would be better to come on and tell the truth,\u201d did not amount to a threat or promise. The expression used by Wyatt, of like character and import, but much milder in expression, did not contain either threat or promise affecting the voluntariness of his confession.\nWe have not thought it necessary to note all the exceptions to the evidence in the foregoing statement of the case in the order in which they were made, but have given the defendants the benefit of every one of them as made in our study and consideration of the case and do not find prejudicial error. The court below was careful to distinguish where the evidence was competent against one of the defendant's and not against the other, and so instructed the jury. And we do not find in this phase of the exceptions any reason to interfere with the result of the trial. Objections to tbe instructions given the jury not here noted have also been carefully examined and we do not find them meritorious.\nWe find no error in the trial.\nNo error.", "type": "majority", "author": "Seawell, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorney-General Bruton for the State.", "Robert S. Cahoon for defendants, appellants." ], "corrections": "", "head_matter": "STATE v. ELMER MATTHEWS and JIM COOK.\n(Filed 29 March, 1950.)\n1. Criminal Law \u00a7\u00a7 52a (7), 56\u2014\nAn instruction that the court grants a nonsuit on the offense charged in the indictment, followed by submission of the case on the question of defendants\u2019 guilt of a lesser degree of the offense charged, does not amount to a nonsuit on the indictment, G.S. 15-173, and perforce will not support a motion in arrest of judgment upon conviction of the lesser degree of the offense charged, G.S. 15-169.\n\u00ed. Criminal Law \u00a7 54e\u2014\nWhere the jury renders a verdict that defendants were guilty as aiders and abettors, the court has the power to give additional instructions, supported by the evidence, to the effect that persons aiding and abetting in the commission of the offense, all being present, are guilty of the offense, and to direct the jury to retire and reconsider, and to accept a proper verdict of guilty after such reconsideration by the jury.\n5. Assault \u00a7 8e\u2014\nIn order to constitute assault with a deadly weapon no special intent is required beyond the intent to commit the unlawful act, which will be inferred or presumed from the act itself.\nt. Criminal Law \u00a7 33\u2014\nThe admonition of the prosecuting witness after seeking out one defendant on his own initiative, \u201cyou had better come clean,\u201d is held, under the circumstances of tins case, not to render defendant\u2019s confession involuntary.\n5. Same\u2014\nWhere one defendant makes a voluntary confession and another de fendant, without persuasion or inducement, admits the correctness of the statement in response to simple questioning, the confession is competen as against the second defendant.\n6. Same\u2014\nThe question of whether a confession is voluntary or involuntary mus be determined upon the circumstances of each particular case.\nDEFENDANTS\u2019 appeal from Carr, J., October Term, 1949, Edgecomb\u00fc Superior Court.\nThe defendants Matthews and Cook were tried on two bills of indict ment consolidated in the trial because drawn upon the identical fact; and considered as two counts in one indictment. The evidence wa substantially as follows:\nAt the time of the occurrence a strike was in progress at the cotta mills located in the City of Tarboro, and the mills were being pickete< by the strikers. J. D. Wyatt, a watchman who had been working insid the plant in that capacity during the strike, approached the gate of th mill for the purpose of entering for the discharge of his duties and foun< that he could not enter for the reason that the entrance was blocked by ; mass of picketers. Jim Cook, one of the defendants and one of th strikers, was standing in front of the gate when Wyatt attempted to enter When Wyatt parked his car Cook called to the \u201cother boys\u201d to come ovei and 50 or 60 came over from one of the picket tents and got across th gate. This was on Wednesday morning; the same day a restraining orde was put into effect to prevent mass picketing. Wyatt observed, \u201cWei looks like you all got it pretty well blocked this morning.\u201d Cook sai that if Wyatt \u201cwent into that mill that morning or any other mornin that the undertaker would have a job.\u201d Wyatt did not get to work tha day nor the next day but returned to work Friday morning at 6 o\u2019cloc and that night \u201cthe shooting\u201d constituting the assault occurred.\nWyatt as a witness states:\n\u201cOne of the bullets went into the room I was sleeping in; it cam through the wall that divides my room and Hathaway\u2019s room; i came about six feet from me. My wife and all the other occupanl of my house had gone to bed when the shots were fired, and th lights were out. I am Jim Cook\u2019s uncle. The front room bein used by Mr. Hathaway was a living room. We use it for botl Sometimes the girl slept in there and sometimes she did not. Afte Hathaway\u2019s wife came out there it was being used as a bedroom. During the month of September she was with me. She\u2019s been out there near \u2019bout ever since the strike has been on. The bullet that entered my room went through a window in Hathaway\u2019s room and then into the room that I was sleeping in.\n\u201cThe room in which I slept is behind the living room. My bed is located directly behind the bed Mr. Hathaway was sleeping in. There is a window next to my bed. Two windows behind the house. If a person were to go around my house and stand in front of one of those two windows he would be facing my bed.\n\u201cI will not say positively whether Jim Cook has been to my house since my daughter has been sleeping in the living room. Jim and his wife were both out there one morning and we -went off on a fishing trip together, since the strike, but I don\u2019t recall whether it was before or not. I won\u2019t say as to whether he has been there since she has been sleeping in the living room. Before my daughter was there we used the living room a lots of times when we had company. The couch was located right near the window; it\u2019s been there ever since I moved there.\u201d\nJ. A. Everett, a member of the Tarboro police force, testified:\n\u201cI am a member of the Tarboro police force. On the night of the shooting Mr. Wyatt and Mr. Hathaway came to the police station. As a result of their appearance at the station I went out to make an investigation. Mr. Walton was with me. Hathaway went with me. I did not know where to go. Hathaway directed us to Hart Mill, the new settlement over there, to Jim Cooke\u2019s home. I went to Jim Cook\u2019s home. This rifle was delivered to me by his wife. Jim was not at home. I started back to the station and went by one of the picket tents and I saw Jim there and I stopped. I know Jim Cook. I called him over to the car. He got in. I told Jim that Sheriff Bardin was down at the station and would like to talk to him in regard to some shooting and I asked him would he mind going down to the station and he said, No.\u2019 So I said get in, and we went down to the police station. I asked him had he been shooting his rifle, and he said no, that he hadn\u2019t shot it in several months. He did not make any further statement about it at that time.\n\u201cOn two occasions I was present when he talked to Sheriff Bardin at the -police station that same night. Matthews was not present this first time Cook talked to the Sheriff. He made the statement that he loaned his rifle to Matthews and Brock.\n\u201cHe said nothing else in my presence at that particular time. A few minutes later he did, but not then. Sheriff Bardin had a warrant issued for Matthews and Brock at that time, and then there was a conversation with Cook, and then later Cook's name was put on the warrant and due to the warrant we went to Matthews\u2019 house and arrested him. I was not with Matthews when he was brought back to the station. Matthews made a statement at the county jail. Cook and Sheriff Bardin was present.\n\u201cThe Sheriff told Cook, said, 'Go ahead and tell what you told me awhile ago.\u2019 Then Cook said, 'I was in the front seat on the right-hand side of the car and Matthews was driving and Brock was in the back seat and done the shooting.\u2019 Cook made that statement. He said his rifle was used. The Sheriff said to Matthews, 'What do you say about it?\u2019 and he said, 'That\u2019s right. That\u2019s what he says.\u2019 Cook said they were in Matthews\u2019 car.\u201d\nTom Bardin, Sheriff, testified:\n''I went to J. D. Wyatt\u2019s home the night of the shooting before I talked to the two defendants. I examined the premises.\u201d He then identified various objects in photographs introduced in evidence by the State, purporting to illustrate the interior of Wyatt\u2019s home after the shooting occurred, pointing out the bullet holes in the walls and windows, and identifying bullets removed therefrom. He further testified: \u201cI knew where Mr. Wyatt lived before that time. The front window to the highway is not over 30 or 10 feet. Probably 15 yards at the most. That is from the shoulder. The concrete portion might be a little bit further, but not much. I first saw Jim Cook at the police station after I returned from Mr. Wyatt\u2019s house. . . . When we first arrived at the police station Cook was sitting in there and Mr. Wyatt went in the hall of the City Hall with him, and I went out a few minutes later where Mr. Wyatt and Jim Cook were, and Mr. Wyatt had been talking with him. . . . Mr. Wyatt was talking to him and said, 'Jim, we know it was you. You had better come clean.\u2019 I told Cook, 'Now, let me tell you before you make any statement anything you say can be used for you or against you.\u2019 . . . He then stated that yes, it was his gun, that Elmer Matthews and David Brock had come to his house and\" borrowed it from him and brought it back later. I asked him if he had cleaned the gun and he said no, when they brought it back it had been cleaned . . . I was not there when Mr. Wyatt was talking to Jim Cook.\u201d\nDuring the examination the jury was sent from the courtroom and the following occurred: J. D. Wyatt (recalled) testified, in the absence of the jury: \u201cAs to what conversation I had with Cook and what statement I made to him before he made any statement to me, it was just what Sheriff Bardin testified to. That is all that was said. I did not say I would do everything I could if he would come clean.\u201d\nThe jury returned and the court proceeded with the taking of testimony, Bardin still on the stand:\n\u201cQ. Did Cook tell you that he did go with them Sheriff?\n\u201cA. At this time he did not.\n\u201cQ. Well, tell me without reference to any names what he said happened when you first talked to him at the police station.\n\u201cA. He stated that two men came to his house and borrowed his rifle and said they were going to get Mr. Wyatt. Said they later brought back his rifle. Then I questioned him as to its being clean, and he said they must have cleaned it, that he did not clean it. And, as a result of that information that he gave me, I called for a Justice of the Peace to come down, and Mr. Wyatt swore out warrants for two other parties.\n\u201cQ. Did you thereafter have a warrant delivered to you for Elmer Matthews ?\n\u201cA. Yes, sir. I served it. Matthews was at home. He had gone to bed. I read the warrant to him, and he got up and put his clothes on and got in the car. I believe it was my car.\u201d (At this point the court instructed the jury not to consider the following testimony as to defendant Jim Cook: \u201cI asked him, 'What in the world were you all thinking about?\u2019 and he said, 'I don\u2019t know.\u2019 I said, 'You were with the boys, weren\u2019t you?\u2019 He said, \u2018Y\u00e9s.\u2019 \u201d)\n\u201cQ. As to the conversation with either Cook or Matthews, what happened next ?\n\u201cA. Well, they were carried to the county jail, and all three of the defendants were in the hallway of the jail and I told Jim, 'All right, tell what happened.\u2019 Jim Cook, Elmer Matthews, Mr. Everett, Mr. Alderman, and the jailer were present. And I think another person came in before we were finished.\n\u201cQ. Did he call any names ?\n\u201cA. They were all three together. He said they were all together and he stated, 'We went out to Mr. Wyatt\u2019s in Elmer Matthews\u2019 car and David Brock fired the bullets into the window.\u2019 I asked him, 'Whose gun was it ?\u2019 and he said, 'It was my gun.\u2019 and he said it was Matthews\u2019 car, and I said, \u2018Who fired the bullets?\u2019 and he said, \u2018David Brock,\u2019 and I turned to Matthews and said, 'Is 'that right ?\u2019 and he said, \u2018That\u2019s right.\u2019 I said, \u2018What did you say ?\u2019 and he said, \u2018That\u2019s what he said.\u2019 \u201d\n\u201cI examined tbe rifle that bas been identified by Mr. Everett. It was freshly cleaned the night I examined it. I did not examine the magazine. I examined the chamber. There was fresh oil and burnt powder. I rubbed paper on it. That is the piece of paper that I used. Those markings are on there from wiping it. I rolled the paper up and rammed it up into the chamber. I brought it out and it was covered with fresh oil and burned powder. It is a .22-caliber rifle. It is an automatic. I don\u2019t know how many bullets it will hold. It will hold as many as five. I have examined the bullets closely enough to testify that they are .22 bullets. They are .22\u2019s. . . :. The next day I was talking to Jim Cook and he made the statement that on the way out there to .Wyatt\u2019s house one of the parties along was trying to find out if either one could shoot from the left shoulder, and neither one of them was left-handed, and since all of them shot from the right shoulder, they went down and turned around and came back and then shot into the house. He said he was seated on the front seat on the right-hand side. . . . Later on Matthews stated that he was driving the car and that he could not say who fired the gun. That David Brock and Jim Cook both were on the,- back seat and that the gun was fired from the back seat, but he \u25ba didinot know by whom. . . . G-oing from Tarboro to Wyatt\u2019s home the house would be on the right side of the road. I have known Mr. Wyatt three or four years. His general character and reputa\u2022tion is good. I have known Alton Hathaway personally just since this occurred. His general character and reputation is good.\u201d . . . \u201cLater in the day, in questioning the boys, I asked them whether or not Howard Parker or Howard Harris had anything to do with it. I did not tell them I would let them go if they would tell what Harris or Parker had to do with it.\n\u201cIn the conversation with Matthews and Cook, I told them they were in it and could not get out of it, but in my opinion they had been advised and that they were not fully responsible, and that I wanted to get whoever had been advising them before they got somebody else in trouble. I did not tell them that if they would talk I would go easy with them.\n. \u201cIn the course of questioning these boys I did not allow Mr. Wyatt to do part of the questioning. He was present right at the beginning. He was not present at any time after that. I don\u2019t recall that he did part of the questioning at the beginning. He and Cook went out in the hall and he talked to him for I wouldn\u2019t say over 60 seconds \u2014 a minute. And when I got there he made the statement to him, \u2018You had better come clean.\u2019 \u201d\nTbe State introduced in evidence tbe rifle mentioned in tbe testimony; paper identified as being used in rubbing oil and powder stains off tbe rifle; tbe bullets taken from tbe building. Tbe State rested and eacb defendant moved for judgment of nonsuit, wbicb was declined, and eacb of them excepted.\nTbe defendants then moved for a verdict of not guilty as to tbe charge of a secret assault, and tbe motion was denied. Defendants objected. Eacb defendant moved \u201cfor judgment of nonsuit as to tbe charge of felonious secret assault.\u201d Tbe motion was denied. Defendants object to tbe following instruction to tbe jury, tbe exceptive matter included in parenthesis:\n(\u201cTbe statute under wbicb this indictment was drawn, requiring tbe State to prove that there was not only an assault made in a secret manner with intent to bill, but that there was likewise a battery, and battery meaning tbe application of some force to tbe person of tbe one assaulted in law, tbe Court being of tbe opinion that in this case there is not sufficient evidence of a battery .as to any of tbe occupants of tbe dwelling of Mr. Wyatt to justify tbe case being sent to tbe jury and considered by tbe jury on tbe charge of tbe secret assault with intent to kill, tbe Court has. granted tbe motion for nonsuit on tbe charge of tbe felonious assault (1) and will submit to tbe jury tbe question of guilt or innocence of tbe defendants on tbe charge of an assault with a deadly weapon upon Barbara Jean Hathaway, Alton Hathaway and Ola Mae Hathaway, tbe occupants of tbe room into wbicb it is alleged tbe shots that have been referred to in tbe evidence were fired.\u201d)\nThe evidence was submitted to tbe jury and after deliberation tbe jury returned and tbe following occurred:\n\u201cUpon tbe coming in of tbe jury tbe Clerk inquired \u00f3f tbe jury if they bad agreed upon a verdict, and tbe foreman, speaking for tbe jury, replied, \u2018Yes.\u2019 Tbe Clerk then inquired, \u2018How say you, do you find tbe defendant Elmer Matthews guilty or not guilty?\u2019 'To wbicb tbe foreman of tbe jury replied, \u2018Guilty.\u2019 Tbe Clerk then inquired, \u2018Do you find tbe defendant Jim Cook guilty or not guilty?\u2019 and tbe jury replied, \u2018Guilty,\u2019 and tbe Clerk then said, \u2018So say you all ?\u2019 and tbe jury replied, \u2018Yes.\u2019 Tbe Court then made inquiry of tbe jury in tbe following language: \u2018Do you find tbe defendants guilty qf an assault with a deadly weapon?\u2019 to wbicb tbe foreman of tbe jury replied.' \u2018Yes. Guilty of aiding and abetting.\u2019 \u201d\nThereupon the court gave to the jury tbe following instruction, to which the defendants filed exception:\n\u201cGentlemen, the Court again instructs you that an aider and abettor in the commission of the crime of an assault with a deadly weapon, if he be present and actively by overt acts, aids and abets the one who commits the crime is guilty of the offense of an assault with a deadly weapon, that is to say, that aiders and abettors in misdemeanors are guilty as principals and the Court again instructs you that if the State has satisfied the jury beyond a reasonable doubt that the defendants were present at the time a third person by the name of Brock committed an assault with a deadly weapon upon the occupants of the front room in said home of the witness Wyatt, to wit, Barbara Jean Hathaway, Alton Hathaway and Ola Mae Hathaway, and the State has further satisfied you beyond a reasonable doubt that the said Brock did intentionally shoot rifle bullets into the bedroom of the said Barbara Jean Hathaway, Alton Hathaway and Ola Mae Hathaway in the nighttime while the said Barbara Jean Hathaway, Alton Hathaway and Ola Mae Hathaway were occupying said bedroom, and that the said Brock fired said bullets into said bedroom in a manner that was likely to cause injury to the occupants of said room or any of them and in the manner so as to cause them or any of them to have to move from a place where they had a right to be as a result of being frightened from such shooting and has further satisfied you beyond a reasonable doubt that the defendants were present and actively aiding and abetting the said Brock in the commission of said offense, that is in the commission of the shooting of the rifle bullets which the Court has just referred to, then and in that event it would be your duty to return a verdict of guilty of assault with a deadly weapon as to each of said defendants.\n\u201cIf the State has failed to so satisfy you of those facts beyond a reasonable doubt, it would be your duty to return a verdict of not guilty, and the Court again instructs you that you may return a verdict of guilty of assault with a deadly weapon as to both of the defendants, or you may return a verdict of guilty of assault with a deadly weapon as to either of them and not guilty as to the other, ov you may return a verdict of not guilty as to both of them, depending upon how you find the facts to be.\u201d\nThe jury retired for further deliberation. The defendants moved that they be discharged on the basis of the verdict just brought in by the jury and the motion was declined. Defendants excepted. The jury returned to the courtroom and the following occurred:\n\u201cThe Clerk inquired of the jury as follows: \u2018Gentlemen have you agreed upon the verdict?\u2019 Whereupon the foreman answered, \u2018Yes.\u2019 And the Clerk inquired: \u2018Do you find the defendant Elmer Matthews guilty or not guilty ?\u2019 Whereupon the foreman answered: \u2018Guilty.\u2019 \u2018Do you find the defendant Jim Cook guilty or not guilty?\u2019 Whereupon the foreman answered: \u2018Guilty.\u2019 The Court then inquired : \u2018Do you find the defendant Elmer Matthews guilty of assault with a deadly weapon or not guilty?\u2019 Whereupon the foreman replied: \u2018Guilty? The Court inquired of the jury: \u2018Do you find the defendant Jim Cook guilty of assault with a deadly weapon or not guilty ?\u2019 Whereupon the foreman replied: \u2018Guilty.\u2019 \u201d\nThe defendants renewed their motion for discharge, which was denied, and defendants excepted.\nDefendants then moved that the verdict be set aside and this was declined. They then moved that a mistrial be declared and that they be allowed a new trial. Motion denied, and defendants excepted. The defendants each moved in arrest of judgment. The motion was denied, and the defendants excepted.\nJudgment thereupon followed the verdict, assigning to each defendant, Elmer Matthews and Jim Cook, two years confinement in jail to work under the supervision of the State Highway and Public Works Commission. Each defendant objected, and excepted, and appealed.\nAttorney-General McMullan and Assistant Attorney-General Bruton for the State.\nRobert S. Cahoon for defendants, appellants." }, "file_name": "0617-01", "first_page_order": 667, "last_page_order": 679 }