{ "id": 8561670, "name": "STATE OF NORTH CAROLINA v. CURTIS HENDERSON and MOSES PRICE, JR.", "name_abbreviation": "State v. Henderson", "decision_date": "1970-04-15", "docket_number": "No. 21", "first_page": "430", "last_page": "445", "citations": [ { "type": "official", "cite": "276 N.C. 430" } ], "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": "99 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627922 ], "opinion_index": 0, "case_paths": [ "/nc/246/0644-01" ] }, { "cite": "86 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "242 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608169 ], "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0001-01" ] }, { "cite": "73 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "236 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626453 ], "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0489-01" ] }, { "cite": "94 S.E. 2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219495 ], "opinion_index": 0, "case_paths": [ "/nc/244/0487-01" ] }, { "cite": "159 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "273 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574646 ], "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0113-01" ] }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "pin_cites": [ { "page": "810" }, { "page": "797" } ], "opinion_index": 0 }, { "cite": "176 S.E. 466", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622953 ], "opinion_index": 0, "case_paths": [ "/nc/207/0118-01" ] } ], "analysis": { "cardinality": 1156, "char_count": 37489, "ocr_confidence": 0.587, "pagerank": { "raw": 2.160478037759623e-07, "percentile": 0.7697054924823803 }, "sha256": "40a0dfe2d0717d802948bf802fb8d75692de8630a67da570481638d0c21356b3", "simhash": "1:d79b74fee7304323", "word_count": 6350 }, "last_updated": "2023-07-14T17:14:31.974326+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MooRE, J., did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. CURTIS HENDERSON and MOSES PRICE, JR." ], "opinions": [ { "text": "Bobbitt, C.J.\nAlthough they present their fourteen assignments of error in a joint statement, each defendant filed a separate brief.\nAssignments of Error Nos. 2 and 4 are based on defendants\u2019 exceptions to the denial of their motions tinder G.S. 15-173 for judgments as in case of nonsuit.\nIn the consideration of these assignments, we apply the well-established and oft-stated rules summarized in 2 Strong\u2019s North Carolina Index 2d, Criminal Law \u00a7 104, as follows: \u201cOn motion to nonsuit, the evidence must be considered in the light most favorable to the state, and the state is entitled to every reasonable in-tendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the state\u2019s evidence, are for the jury to resolve, and do not warrant nonsuit. Only the evidence favorable to the state will be considered, and defendant\u2019s evidence relating to matters of defense, or defendant\u2019s evidence in conflict with that of the state, will not be considered.\u201d\nThe credibility of the State\u2019s crucial evidence, particularly the testimony of Williams, Miller and Thomas, was sharply challenged by cross-examination and by defendants\u2019 testimony and by evidence offered in their behalf.\nWilliams, who identified both Price and Henderson in his testimony at trial, did not know either defendant by name on the night of the attempted robbery and the murder of Stanley. Miller, who identified Price in his testimony at trial, did not know him by name on the night of the attempted robbery and the murder of Stanley.\nAs witnesses for the State, various officers, namely, a Kinston Police Officer (Loftin), two Kinston Detectives (Brooks and Gay),a Private Detective (Whaley) and an SBI Agent (Campbell), testified to statements made by Williams in response to their inquiries. Portions of this testimony tended to corroborate Williams\u2019 testimony at trial. Other portions thereof tended to show discrepancies and conflicts between Williams\u2019 testimony at trial and statements previously made by him. Conflicts between the testimony of certain of the State\u2019s witnesses and the testimony of Detective Long, a witness for Henderson, are noted in our preliminary statement. The testimony of Thomas was contradicted by each defendant in his personal testimony and also by the testimony of Mrs. Annie Belle Shaw (\u201cMiss Annie\u201d). Testimony of Thomas, under cross-examination, tended to show Thomas\u2019 prior criminal record; that he had \u201cpulled five years\u201d in prison and in addition had \u201cpulled some time just around the city jail\u201d; and that he was in custody for forgery when he told the officers of overhearing the conversation at \u201cMiss Annie\u2019s house\u201d and under a probationary sentence for forgery when he testified for the State against defendants. Too, each defendant offered alibi evidence. This evidence tended to show the defendants were not together on the night of October 5th and that each was at a location in Kinston other than the premises of the Supermarket.\nThis statement from the opinion of Stacy, C.J., in State v. Satterfield, 207 N.C. 118, 176 S.E. 466, is applicable: \u201cCounsel for the defendant assailed the State\u2019s case with force and vigor, pointing out the apparent contradictions in the testimony and the equivocation of some of the witnesses, but these were matters bearing upon the weight of the evidence or its credibility, and not upon its competency. The jurors alone are the triers of the facts.\u201d\nConsidered in the light of applicable legal principles, the evidence was sufficient to require submission to the jury and to support the verdict. Hence, the assignments of error with reference to nonsuit are without merit.\nAssignment of Error No. 1 contains nothing of sufficient significance to require discussion and is overruled.\nA preliminary hearing was conducted November 1, 1968, in the Municipal-County Recorder\u2019s Court. The solicitor of that court, P. H. Crawford, Jr., as \u00e1 rebuttal witness for the State, testified to his conversation with Williams, in the presence of several law enforcement officers, in the judge\u2019s office adjoining the courtroom, preparatory to the hearing. A portion of his testimony is the subject of Assignment of Error No. 3.\nMr. Crawford testified in part as follows: \u201cAt the beginning of my conference with him he indicated a very pronounced reluctance to talk, he replied to questions in monosyllables and I had difficulty in bringing him out. I insisted to him that what I wanted him to tell me was exactly what he knew about the facts and what happened, and one or two of those present made similar statements to him about telling me what happened, to tell the truth. One of those present, I think it was Mr. Whaley, made the statement to him \u2014 if there are not the words it is the substance; he said 'Tell it to Mr. Crawford just like you told it to me.\u2019 (And almost suddenly the boy began to talk and he was very forthright and complete \u2014 Objection overruled \u2014 and gave an articulate statement.) DEFENDANTS\u2019 EXCEPTION NO. 3. Yes, sir, immediately after my conference with him he testified at the hearing.\u201d\nAlthough the words \u201cObjection overruled\u201d appear in the record as indicated, the record does not show the question to which the objection was addressed. Nor does the record show that defendants made a motion to strike any particular portion of Mr. Crawford\u2019s testimony.\nIn their briefs, defendants call attention to \u201cDEFENDANTS\u2019 EXCEPTION NO. 3,\u201d on which they base Assignment of Error No. 3. Their only point seems to be that Crawford was testifying to an opinion or conclusion as distinguished from facts. We perceive no error prejudicial to defendants. Crawford\u2019s testimony that Williams was reluctant to talk when the conference began and later talked freely constituted what may well be considered a shorthand statement of fact. Stansbury, N. C. Evidence, Second Edition, \u00a7 125. If deemed desirable, counsel for defendants could have explored in depth exactly what Williams said at various stages of this conference.\nAssignment of Error No. 14 asserts \u201cthe court erred in overruling the defendants\u2019 motions to set aside the verdict for that the evidence was overwhelmingly against the verdict, for errors made during the trial, and for arrest of judgment.\u201d No ground for the arrest of judgment is suggested other than defendants\u2019 contentions that the verdicts were contrary to the weight of the evidence. Since this was a matter for determination by the trial judge in the exercise of his discretion, this assignment is deemed formal.\nIn his brief, Henderson expressly abandons Assignments of Error Nos. 6 and 7. Since Price\u2019s brief states no reason and cites no authority in support thereof, these assignments will be taken as abandoned' by him. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810; Freeman v. City of Charlotte, 273 N.C. 113, 116, 159 S.E. 2d 327, 329.\nAssignments of Error Nos. 5-13, inclusive, quote excerpts from the charge and assert the court erred in so charging the jury. In these assignments, defendants do not indicate in what particular any of the quoted excerpts is erroneous. They ignore the requirement of Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783, 797, as interpreted in numerous decisions of this Court, that \u201calways the very error relied upon shall be definitely and clearly presented, and the Court not compelled to go beyond the assignment itself to learn what the question is.\u201d State v. Mills, 244 N.C. 487, 94 S.E. 2d 324.\nThe excerpt on which Assignment of Error No. 5 is based is the only portion of the charge assigned as error which relates to an instruction with reference to a legal principle. Other portions of the charge assigned as error involve either the court\u2019s review of evidence or statement of contentions.\nWith reference to Assignment of Error No. 5, Price contends that the court used the words, \u201cif you find from the evidence,\u201d instead of the words, \u201cif you find from the evidence beyond a reasonable doubt.\u201d In other portions of the charge, the court fully and correctly instructed the jury that the burden was on the State to satisfy the jury beyond a reasonable doubt as to the guilt of the defendants or either of them before such verdict (s) could be returned. The contention advanced by Price is without merit.\nHenderson\u2019s contention with reference to Assignment of Error No. 5 is that the instruction given in the quoted excerpt was \u201cunclear and ambiguous.\u201d This contention is without merit. The clear import of the instruction is that if the attempted robbery and the murder were committed pursuant to a -conspiracy to rob, each conspirator would be responsible for the acts of the other on the occasion the crime was committed; but, in the absence of such conspiracy, each would be guilty only if he individually was engaged in the perpetration of the attempted robbery and fired the fatal shots. The instructions were favorable to defendants. It is noteworthy that the court failed to instruct the jury as to the legal principle that each would be responsible for the acts of the other if both were present, aiding and abetting each other in the perpetration of the attempted robbery, even if there were no evidence of a previously formed conspiracy. Too, the charge was quite favorable to defendants in that, notwithstanding all the evidence tended to show a murder committed in the perpetration of an attempted robbery, the court instructed the jury it would be permissible for them to return a verdict of guilty of murder in the second degree as to either or both of the defendants.\nThe excerpt from the charge on which Assignment of Error No. 8 is based consists of a brief summary by the court of the testimony of (State\u2019s witness) Loftin. We find no significant conflict between the court\u2019s summary and Loftin\u2019s testimony. This assignment is without merit.\nThe excerpt from the charge on which Assignment of Error No. 9 is based is in these words: \u201cThe State offered a number of rebuttal witnesses \u2014 lam not going to recount their testimony, or attempt to recapitulate it here \u2014 you heard it this morning, and it was offered in substance opposed to the testimony of James Robert Williams to explain away some of the discrepancies between the testimony of certain officers, Eubanks, Whaley and others, and Officer Carl Long. I assume that was the purpose of the offer. That was all given today and you will recall it.\u201d\n. Obviously, the rebuttal evidence was not offered \u201cin substance opposed to the testimony of James Robert Williams,\u201d the State\u2019s principal witness, but was offered in an attempt \u201cto explain away some of the discrepancies\u201d between the testimony of Officer Eubanks, Whaley and others, on the one hand, and the testimony of Officer Long, on the other hand. Although this portion of the charge as reported seems somewhat confusing, we find nothing therein which may be considered prejudicial to defendants.\nThe remaining excerpts from the charge, on which Assignments of Error Nos. 10, 11, 12 and 13 are based, consist of the court\u2019s review of certain of the contentions of the State. The excerpts on which Assignments of Error Nos. 10 and' 11 are based are lengthy and involve multiple and diverse matters. Apparently, defendants were inadvertent to the rule that \u201can exception to a portion of a charge embracing a number of propositions is insufficient if any of the propositions are correct.\u201d Powell v. Daniel, 236 N.C. 489, 493, 73 S.E. 2d 143, 146, and cases cited. The excerpt on which Assignment of Error No. 12 is based is worded as follows: \u201cThe State says and contends that even the discrepancies between the testimony of Officer Carl Long and some of the other officers are not as 'pronounced as they appear when they are examined in the light of the whole case, and consider that the memory of people who are active in law enforcement work is, like others, it is not perfect; they may not remember exactly what happened at a given session at a given time.\u201d (Our italics.) This sufficiently illustrates the type of statement of contention which defendants assert constitutes prejudicial error.\nThe discrepancies and conflicts in the evidence were obvious. Defendants did not except to the failure of the court to charge the jury in respect of any matter. \u201cIt is elemental that an exception to an excerpt from the charge ordinarily does not challenge the omission of the court to charge further on the same or another aspect of the case.\u201d Peek v. Trust Co., 242 N.C. 1, 16, 86 S.E. 2d 745, 757. Be that as it may, it would seem the court\u2019s frequent references to the discrepancies and conflicts in the evidence tended to emphasize rather that to minimize the significance thereof. Careful readings of the evidence and of the charge make it clear that the respective contentions of the State and of defendants with reference to these discrepancies and conflicts were well understood by the jury. These assignments fail to disclose prejudicial error and are overruled.\nIn the lengthy excerpt on which Assignment of Error No. 11 is based, the court, while reciting contentions of the State, said: \u201c. . . and there is evidence here that he (James Robert Williams) did have some reluctance \u2014 it was recited by Mr. Crawford, who I thought put it very accurately, that there was a marked reluctance on his part to be the only eyewitness to talk about Henderson.\u201d Conceding the court should not have expressed the view that he thought (State\u2019s witness) Crawford had \u201cput it very accurately,\u201d all the evidence tended to show that, at the beginning of the conference preceding the preliminary hearing, Williams was in fact reluctant to talk. Indeed, (defense witness) Long testified that Williams stated \u201che was not going in there and testify about Curtis Henderson because he could not positively identify him.\u201d According to the State\u2019s evidence, the initial reluctance of Williams to testify against Henderson was based on his belief that he was to be the only witness against Henderson and that this reluctance ceased when he learned that other witnesses were to testify against Henderson. Assignment of Error No. 11 fails to disclose prejudicial error and is overruled.\nWhile, as indicated, the assignments of error, except those relating to nonsuit, do; not comply with our rules, we have elected to consider all of them and all contentions made with reference thereto in the briefs. After reading and re-reading the evidence and the charge, we find no error deemed prejudicial to the defendants or either of them. The real issues in dispute were factual in nature. They were resolved adversely to defendants by the jury.\nThe record shows the following:\n\u201cTHE JURORS, BEING CALLED BY NAME AND BEING INDIVIDUALLY POLLED BY THE CLERK OF SUPERIOR COURT; RENDERED THE FOLLOWING VERDICTS:\n\u201cAS TO THE DEFENDANT, MOSES PRICE, JR.:\n\u201cVERDICT: 'Guilty of murder in the first degree with recommendation of life imprisonment.\u2019\n\u201cAS TO' THE DEFENDANT, CURTIS HENDERSON:\n\u201cVERDICT: \u2018Guilty of murder in the first degree with recommendation of life imprisonment.\u2019\n\u201cUpon the bringing in of the verdict as to- the defendant, Moses Prices Jr., said defendant,, through counsel, requested that the jury be polled. . '\n\u201cTHE CLERK- OF SUPERIOR COURT POLLED THE JURY.\n: \" \u201cUpdn the bringing in of the verdict as to the defendant, Curtis Henders\u00f3nj said' defendant, through counsel, requested that the jury be-'polled.\n''\u201cTHE CLERK OF SUPERIOR COURT POLLED THE JURY.\u201d\nIn their briefs, each defendant asserts that, although there is no exception or assignment of error in respect of the polling of the jury, the record does not disclose affirmatively that each and every juror assented to the verdict. They contend the Court should order a new trial ex mero motu on authority of State v. Dow, 246 N.C. 644, 99 S.E. 2d 860. The contention is without merit.\nIn State v. Dow, supra, the record showed that the jurors were polled in open court and that the responses of all the jurors were not in accord with the verdict as announced by the foreman of the jury. Here, defendants\u2019 counsel did not include in the record what occurred when the jury was polled. In view of the contention made in their briefs, we have obtained a certificate from the Clerk of the Superior Court of Lenoir County to the effect that, subsequent to the announcement of the verdict, each juror, upon being polled by the clerk as to each defendant, replied that his verdict was guilty of murder in the first degree with recommendation that the punishment be imprisonment for life.\nFinding no prejudicial error in the trial, the verdict and judgment will not be disturbed.\nNo error.\nMooRE, J., did not participate in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, C.J." } ], "attorneys": [ "Attorney\u25a0 General Morgan, Deputy Attorney General Moody and Staff Attorney Mitchell for the State.", "Beech & Pollock, by D. D. Pollock, for defendant appellant Henderson.", "Brock & Gerrans, by C. E. Gerrans, for defendant appellant Price." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CURTIS HENDERSON and MOSES PRICE, JR.\nNo. 21\n(Filed 15 April 1970)\n1. Homicide \u00a7 21\u2014 murder in perpetration of attempted armed robbery \u2014 sufficiency of evidence\nIn this prosecution for first degree murder committed in the perpetration of an attempted armed robbery, the State\u2019s evidence, including an in-court identification of defendants as the perpetrators of the robbery and murder and testimony that a witness overheard defendants planning the robbery, is held sufficient for the jury, the apparent contradictions in the testimony and the equivocation of some of the witnesses bearing upon the weight of the evidence or its credibility and not upon its competency, and the jury being the trier of the facts.\n2. Criminal law \u00a7 50; Evidence \u00a7 42\u2014 testimony that statement was forthright, complete and articulate \u2014 shorthand statement of fact\nTestimony by the solicitor of a municipal-county court that in a conference with the State\u2019s principal witness immediately prior to a preliminary hearing held in that court, the witness was reluctant to talk, and that \u201csuddenly the boy began to talk and he was very forthright and complete and gave an articulate statement\u201d may well be considered a shorthand statement of fact, and its admission was not prejudicial error.\n8. Criminal Law \u00a7 132\u2014 motion to set aside verdict as contrary to weight of evidence\nA motion to set aside the verdict as being contrary to the weight of the evidence is addressed to the discretion of the trial judge.\n4. Criminal Law \u00a7 166\u2014 abandonment of assignments of error\nAssignments of error not supported by reason or authority in defendant\u2019s brief will be deemed abandoned. Supreme Court Rule No. 28.\n5. Criminal Law \u00a7 163\u2014 assignments of error to charge \u2014 failure to indicate particular error asserted\nAssignments of error which quote excerpts from the charge and assert the court erred in so charging the jury, but which fail to indicate in what particular any of the quoted excerpts is erroneous, do not comply with the requirement of Supreme Court Rule 19(3) that the asserted error be clearly presented without the necessity of going beyond the assignment itself to learn what the question is.\n6. Criminal Law \u00a7\u00a7 112, 168\u2014 instructions \u2014 \u201cif you find from the evidence\u201d \u2014 beyond a reasonable doubt\nThe trial court did not commit prejudicial error in using in one portion of the charge the words \u201cif you find from the evidence\u201d instead of \u201cif you find from the evidence beyond a reasonable doubt,\u201d where in other portions of the charge the court fully and correctly instructed the jury that the burden was on the State to satisfy the jury beyond a reasonable doubt as to the guilt of defendant before such verdict could be returned.\n7. Criminal Law \u00a7\u00a7 9, 163; Homicide \u00a7 25\u2014 instructions \u2014 homicide committed during robbery \u2014 conspiracy to rob\nIn this consolidated trial of two defendants for a homicide committed in the perpetration of an attempted armed robbery, trial court\u2019s instruction to the effect that if the attempted robbery and murder were committed pursuant to a conspiracy to rob, each conspirator would be responsible for the acts of the other on the occasion the crime was committed, but in the absence of such conspiracy, each would be guilty only if he individually was engaged in the perpetration of the attempted robbery and fired the fatal shots, was not unclear and ambiguous, and was favorable to defendants, since each would be responsible for the acts of the other if both were present, aiding and abetting each other in the perpetration of the attempted robbery, even though there were no previously formed conspiracy.\n8. Criminal Law \u00a7 168\u2014 instructions \u2014 State\u2019s rebuttal evidence \u2014 harmless error\nIn this prosecution for first degree murder, defendants were not prejudiced by an instruction that the State offered rebuttal evidence \u201cin substance opposed to the testimony of\u201d the State\u2019s principal witness \u201cto explain away some of the discrepancies between the testimony of certain officers\u201d presented by the State and that of an officer who testified for defendant, although the instruction was somewhat confusing in that the rebuttal evidence obviously was not offered in opposition to the State\u2019s principal witness, but only to explain discrepancies in the testimony of the officers.\n9. Criminal Law \u00a7 163\u2014 exception to charge embracing number of propositions\nAn exception to a portion of the charge embracing a number of propositions is insufficient if any of the propositions are correct.\n10. Criminal Law \u00a7 163\u2014 exception to excerpt from charge \u2014 challenge to omission\nAn exception to an excerpt from the charge ordinarily does not challenge the omission of the court to charge further on the same or another aspect of the case.\n11. Criminal Law \u00a7\u00a7 118, 168\u2014 instructions \u2014 contentions of State \u2014 discrepancies and conflicts in evidence\nIn this prosecution for first degree murder, defendants were not prejudiced by the court\u2019s frequent references to the discrepancies and conflicts in the evidence while reviewing the contentions of the State, where the court\u2019s references thereto tended to emphasize rather than minimize the significance of the discrepancies and conflicts, and it is clear from the evidence and charge that the respective contentions of the State and of defendants with reference to these discrepancies and conflicts were well understood by the jury.\n12. Criminal Law \u00a7\u00a7 118, 168\u2014 instructions \u2014 review of State\u2019s contentions\u2014 statement that witness \u201cput it very accurately\u201d \u2014 harmless error\nIn this prosecution for first degree murder, defendants were not prejudiced when the court, while reviewing the contentions of the State, expressed the view that he thought a State\u2019s witness had \u201cput it very accurately\u201d that there was a marked reluctance on the part of the State\u2019s principal witness to be the only eyewitness against one of the defendants, where all the evidence tended to show that at the beginning of a conference preceding defendants\u2019 preliminary hearing, the State\u2019s principal witness was reluctant to talk, and the State\u2019s evidence was that this re- \u25a0 luctance was based on his belief that he was to be the only witness against one defendant and that this reluctance ceased when he learned that other \u2022 witnesses were to testify against such defendant.\n13. Criminal Haw \u00a7 126\u2014 polling the jury \u2014 failure of record to show each juror assented to verdict \u2014 certificate of clerk of court\nDefendant\u2019s contention that the Supreme Court should order a new trial ex mero motu because the record on appeal does not show affirmatively that, when the jury was polled, each and every juror assented to the verdict, is held without merit, the Court having obtained a certificate from the clerk of superior court to the effect that subsequent to the announcement of the verdict, each juror, upon being polled by the clerk as to each defendant, replied that his verdict was guilty of murder in the first degree with recommendation that the punishment be imprisonment for life.\nMoore, J., did not participate in the consideration or decision of this case.\nAppeal by defendants under G.S. 7A-27(a) from Mintz, J., January 1969 Criminal Session of Lenoir Superior Court, docketed and argued as No. 21 at Fall Term 1969.\nAt December 1968 Session, the grand jury of Lenoir County returned a bill of indictment charging that defendants on October 5, 1968, murdered Woodrow Stanley.\nEvidence was offered by the State and by each defendant.\nUncontradicted evidence offered by the State tended to establish that Woodrow Stanley (Stanley) was shot and fatally injured on Saturday, October 5, 1968, shortly before 11:00 p.m., in the parking area portion of the premises of Stanley\u2019s Supermarket (Supermarket), under the circumstances narrated below.\nThe Supermarket property is located in Kinston, N. C., at the southwest corner of the intersection of Washington Street and Clay Street, and is designated 811 East Washington Street. It fronts eighty-one feet on the south side of Washington Street and extends one hundred and sixty-two feet along the west side of Clay Street. The store building is in the northeast portion of the lot, thirty feet south from the Washington Street curb and seven feet west from the Clay Street curb. The building has a frontage of twenty-three feet and extends south at that width sixty feet. An open space in the shape of the letter \u201cL\u201d extends (1) south from Washington Street and west of the building to a fence along the back property line, and thence (2) east between the back of the building and the fence to Clay Street. In the portion which extends (at the width of fifty-one feet) south from Washington Street, there are eleven parking spaces along the west property line. These spaces point diagonally towards the west side of the building. Near the back property line of this portion are four parking spaces with lin\u00e9s pointed towards Washington Street. There are no parking spaces in the area extending from the rear of the building a distance of seventy-two feet to the fence. This area provides access to and from Clay Street. Stanley\u2019s station wagon was parked in the second parking space from Washington Street and was backed towards the west property line. The front was headed diagonally towards the west side of the building. The car of Venters, an employee, was parked, headed towards the back fence, in one of the four parking spaces at the rear of the parking area.\nThe Supermarket was closed to the public about 10:45 p.m. Stanley, the owner-operator, and his employees were making preparations to leave. Upon locking and leaving the store, Stanley and two of his employees, Phillip Rhugaber (Rhugaber) and Stanley Lee (Lee), went to Stanley\u2019s station wagon; and the four other employees, James Robert Williams (Williams), Johnnie Ray Miller (Miller), James Lacewell (Lacewell) and Harry Venters (Venters) went to the Venters car.\nLee and Rhugaber got in the Stanley station wagon, Lee on the front seat and Rhugaber on the back seat. Stanley got in the driver\u2019s seat. Before he could close the door two colored men came running towards the station wagon and asked for change for a dollar. One of them stopped at the door beside Stanley, on the driver\u2019s side, and the other went to the back of the station wagon. After Stanley stated he had left all the money in the store, he was told: \u201cThis is a stickup, Woodrow, give me the money. ... I know you have got it because I saw you put it in a bag, give it to me.\u201d A first shot was fired. When Lee started to get out, the man who fired the shot said: \u201cIf you open that door I will kill you.\u201d Lee was \u201cscared to death\u201d and \u201cjust froze.\u201d Again the man asked for the money. Stanley was sitting in the car with the door open. A second shot was fired. When this occurred, Stanley reached over and got a bag of groceries, threw it out and said, \u201cThere is your money, go home.\u201d Stanley grabbed the wheel, blew the horn and tried to get out of the car. He finally \u201cmade it outside,\u201d still blowing the horn. A third shot was fired. Thereupon, Stanley \u201cturned the wheel aloose and fell.\u201d Just before he fell, the man who fired the shots grabbed Stanley\u2019s billfold from his pocket and ran. Both men ran from the back of the station wagon towards the back of the parking area, across the area in back of the store building and towards Clay Street. Lee got out of the station wagon and hollered to Venters: \u201cThey shot Mr. Stanley.\u201d In running from the station wagon, the two men involved in the holdup passed the parked car of Venters.\nLee testified to the facts narrated in the preceding paragraph. He testified also that the man who did the shooting was \u201cstanding up all the time\u201d; that all shots were fired by the man on the driver\u2019s side; and that he could not see the face of either of the men.\n' Rhugaber did not testify. Lee and Rhugaber told an investigating officer that night (October 5-6, 1968) that they could not identify either of the men.\nUnconscious, Stanley was taken by ambulance to the hospital and died en route or shortly after arrival. An autopsy disclosed that three bullets had penetrated his body. Death was caused by a bullet that had penetrated his left chest, left lung and heart.\nWilliams, aged 17, and Miller, aged 18, two of the four Stanley employees who went to the Venters car, testified as witnesses for the State. Lacewell and Venters did not testify.\nPortions of the testimony of Williams and of Miller as to what happened after they reached the Venters car, exclusive of testimony bearing upon the identification of defendants, are narrated below.\nAccording to Williams: He and Miller got in the back seat of the Venters car and Lacewell got in\u2019 the front seat. Venters, outside the car, hollered, \u201cSomebody shot Mr. Stanley.\u201d Thereupon, the occupants of the car jumped out and all ran towards the station wagon, When they got \u201csome distance\u201d from it, they heard somebody say, \u201cStop, or I\u2019ll shoot,\u201d and all \u201cturned around and went back the other way.\u201d Williams (but none of the other three) got back in the Venters car. From the back seat of the Venters car, looking through the back glass, Williams saw \u201ctussling\u201d on the driver\u2019s side (far side from Williams) of the station wagon. On the passenger\u2019s side, towards the back, he \u201csaw a guy peeping into a bag.\u201d When the tussling ceased, a guy, who came from the driver\u2019s side of the station wagon, ran by the Venters car and said, \u201cDon\u2019t move or I\u2019ll shoot you.\u201d The man was about fifteen feet from Williams. Venters was \u201cout there\u201d when the man passed and made that statement. A few seconds later the man with the bag ran from the passenger\u2019s side of the station wagon. He fell before he reached Clay Street, dropped something from the bag he was carrying, picked it up, put it back in the bag and started running again. When he fell, Williams got out of the Venters car and attempted to overtake the man with the bag by cutting him off as he ran down Clay Street. However, Williams ran into the fence that extended along the rear of the parking lot. The man who came from the driver\u2019s side of the station wagon was the first to run by the Venters car. He had a pistol in his hand. After Stanley was put in the ambulance, Williams went to the station wagon, found Stanley\u2019s money (over $2,000.00)' in a bag, and gave the money to one of the officers.\nAccording to Miller: When Venters said, \u201cSomebody is shooting Mr. Stanley,\u201d those in the Venters car hopped out and started towards the station wagon. A man standing behind the station wagon on'the passenger\u2019s side was looking into a bag. Miller went approximately eighteen steps towards the station wagon. When he was about ten steps from the station wagon, the man said: \u201cHalt, or I\u2019ll shoot.\u201d Lacewell said, \u201cCome on Johnnie,\u201d and when Miller looked up Lace-well \u201cwas across the fence.\u201d Miller heard one shot before he got out of the Venters car. He saw the man who had the bag fall, get up and pick up some packages. There was another man on the far side of the station wagon. He (Miller) could hear him but did not see him.\nThe parking areas of the Supermarket premises were well lighted by mercury lights when the events relating to the attempted robbery and the murder occurred.\n. Evidence offered by the State, which was contradicted by the personal testimony of each defendant and by evidence offered in their behalf, included the following:\nWilliams testified that defendant Henderson was the man who came from the driver\u2019s side of the station wagon and, with pistol in hand, said, \u201cDon\u2019t move or I\u2019ll shoot you,\u201d as he passed by the Venters car; and that defendant Price was the man on the passenger\u2019s side of the station wagon who looked into the bag and fell on the parking lot while running towards Clay Street.\nMiller testified defendant Price was the man on the passenger\u2019s side of the station who looked into the bag, the man who said, \u201cHalt, or I\u2019ll shoot,\u201d when Miller and others first approached the station wagon, and the man who fell-on the parking lot while running towards Clay Street. (Note: Miller did not testify as to the identity of the man on the far (driver\u2019s) side of the Station wagon or as to \u25a0what that man may have said or done.)\nJohnnie Thomas, aged 22, testified that, in September, 1968, at \u201cMiss Annie\u2019s house\u201d on Washington Street, he overheard the following conversation between defendant Price and defendant Henderson, viz.: \u201cMoses told Curtis he was getting hungry and Curtis said \u2018What do you expect me to do about it?\u2019 Moses said that he had to have some money and he was going to get some money because he was broke. Moses Price. Curtis didn\u2019t say anything. After awhile Curtis Henderson said T need some money, I\u2019m going back to Boston.\u2019 Then Moses said T know Mr. Stanley and he has got some loot on him. I believe I\u2019ll hit him but I have got to find a way to do it.\u2019 Curtis said T used to have a credit account there at the store but I\u2019m with you.\u2019 Moses said \u2018Let\u2019s do it tonight,\u2019 but Henderson said not tonight he had some business to attend to.\u201d\nEvidence for the State tended to show Thomas had made a statement to this effect to an officer on or about October 14, 1968, when in jail on a forgery charge; and that Thomas had pleaded guilty to forgery at October 1968 Session of Lenoir Superior Court and received a probationary sentence.\nSeparate warrants, each based on an affidavit of Carl Long, were issued October 24, 1968. Each charged the accused with the murder of Stanley on October 5, 1968.\nThe evidence most favorable to the State tended to show that Price was arrested first; that he was arrested by Detective Long; that Private Detective Whaley and Deputy Sheriff Eubanks were present; that, upon arrival at the courthouse, Detective Long went off with other officers; that Price, in the company of Whaley and Eubanks, got to the top of the steps of the courthouse and was coming into the two swinging glass doors when he (Price) fell down on his knees, hanging to the door, and said, \u201cOh, God, why did I do it?\u201d and broke down and began crying in the presence of these officers. (Note: Detective Long, a witness for defendant, testified that he was with Whaley, Eubanks and Price when they entered the courthouse; that Price \u201cwas crying, saying he didn\u2019t do anything, and he couldn\u2019t hardly walk\u201d; that he saw Price, crying, go down on his knees, but that he didn\u2019t hear him say, \u201cWhy did I do it? Oh, my Lord, why did I do it?\u201d)\nThe evidence most favorable to the State tended to show the warrant for the arrest of defendant Henderson was served on him at his father-in-law\u2019s home on Lincoln Street; that the officers present-included Private Detective Whaley, Deputy Sheriffs Eubanks, Ipock, and Brake, and Detective Long; that when Henderson saw them drive up he came out and asked them what they wanted him for; that, although he was denied permission to do so, he forced his way until he got back into the house; that after the warrant had been read to him, Henderson said, \u201cShoot me, I\u2019d rather be dead, shoot me,\u201d and \u201cran down the street hollering\u201d; and that he had run approximately four blocks when he was stopped on Lincoln Street by Detective Long. (Note: Detective Long, a witness for defendant, testified the officers went first to Henderson\u2019s home; that he was not at his home but was at his mother\u2019s house; that they talked with him and placed him under arrest and the warrant was read to him; that Henderson stated he wanted to say something to his wife and that he (Detective Long) let him; that Henderson came back out of the door and said, \u201che had nothing to hide and he jumped up and said you might as well kill me, I haven\u2019t done anything, and he took off running and left everybody\u201d; and that when he (Detective Long) apprehended him, Henderson stated \u201cthat he didn\u2019t know why he run, he just panicked and ran, that he hadn\u2019t done anything.\u201d)\nThe evidence, reduced to narrative form and single spaced, occupies one hundred and thirty pages of the mimeographed record. Other features of the evidence will be referred to in the opinion.\nAs to each defendant, the jury returned a verdict of \u201cGuilty of murder in the first degree with recommendation of life imprisonment\u201d; and, as to each defendant, the court pronounced a judgment which imposed a sentence of life imprisonment.\nEach defendant gave notice of appeal. An order was entered that each be represented on appeal by his trial counsel and that Lenoir County pay all costs necessary to perfect the appeal.\nAttorney\u25a0 General Morgan, Deputy Attorney General Moody and Staff Attorney Mitchell for the State.\nBeech & Pollock, by D. D. Pollock, for defendant appellant Henderson.\nBrock & Gerrans, by C. E. Gerrans, for defendant appellant Price." }, "file_name": "0430-01", "first_page_order": 456, "last_page_order": 471 }