{ "id": 8569206, "name": "STATE OF NORTH CAROLINA v. JAMES ALLRED", "name_abbreviation": "State v. Allred", "decision_date": "1971-10-13", "docket_number": "No. 47", "first_page": "398", "last_page": "406", "citations": [ { "type": "official", "cite": "279 N.C. 398" } ], "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": "176 S.E. 466", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "207 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622953 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/207/0118-01" ] }, { "cite": "170 S.E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "275 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559791 ], "year": 1969, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0651-01" ] }, { "cite": "93 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "pin_cites": [ { "page": "383-384" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "178 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "609" } ], "opinion_index": 0 }, { "cite": "278 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559645 ], "year": 1971, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0063-01" ] } ], "analysis": { "cardinality": 793, "char_count": 19352, "ocr_confidence": 0.55, "pagerank": { "raw": 2.950923125695958e-07, "percentile": 0.8488425386962715 }, "sha256": "ce78a2559f3d982192b19723981cba80bd37190f16b412779002de9231fd7c0e", "simhash": "1:240f79503ff788d3", "word_count": 3388 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES ALLRED" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nDefendant assigns as error the denial of his motion under G.S. 15-173 for judgment as of nonsuit. Decision requires consideration of the evidence in the light most favorable to the State. State v. Vincent, 278 N.C. 63, 64-65, 178 S.E. 2d 608, 609 (1971), and cases cited.\nThe evidence is uncontradicted as to this crucial fact: The death of Tommy at Eobbins Crossroads on October 19, 1969, was caused by a .25 bullet fired from a .25 automatic pistol.\nThere is no testimony that defendant had a .25 automatic pistol at Robbins Crossroads on October 19, 1969. Nor is there testimony that defendant fired any pistol on that occasion. The State relies upon circumstantial evidence.\nTo withstand defendant\u2019s motion for judgment as of non-suit, there must be substantial evidence against the accused of every essential element that goes to make up the crime charged. Whether the State has offered such substantial evidence presents a question of law for the court. State v. Stephens, 244 N.C. 380, 383-384, 93 S.E. 2d 431, 433 (1956); State v. Horton, 275 N.C. 651, 657, 170 S.E. 2d 466, 471 (1969). In the present case, the crucial question is whether the State offered substantial evidence that the fatal shot was fired by defendant.\nThe only evidence which purports to connect defendant with a .25 pistol is the testimony of Tommy\u2019s father to the effect that defendant had told him, \u201cabout a month and a half\u201d before Tommy\u2019s death, that he (defendant) had bought a .25 automatic pistol, \u201cblue steel.\u201d There is no evidence such a pistol was seen in defendant\u2019s possession at any time before or after Tommy\u2019s death.\nAn attempt to reconcile the conflicting testimony would be futile. Each version differs sharply from the other, particularly on the issues of whether defendant had \u201ca gun\u201d and, if so, what he did with it.\nAccording to Elkins: After he fired the three shots into the ground in front of the Allred boys, Donald, Corky and Tony, and after Tommy got out of his car and called for his pistol, defendant grabbed him (Elkins) and stuck a \u201csmall handgun\u201d in his face. He did not know what color it was or anything about it. He heard no shot other than the three shots he (Elkins) fired.\nAccording to McNeill: A \u201cheavy-set fellow\u201d and Tommy scuffled as they went to the back of McNeill\u2019s car, a white Oldsmobile. When the \u201cheavy-set fellow\u201d returned, he had \u201ca little short gun\u201d in his hand. McNeill could not identify any person in the courtroom as the \u201cheavy-set fellow.\u201d\nAccording to Deaton: Although he saw defendant grab Tommy by the hair of his head and knock him down, the only gun he saw was the gun Tommy had, \u201ca nickel-plated, short gun, four or five inches long.\u201d He did not see defendant fire or have a gun.\nAccording to Bibey: After Elkins had fired three shots from Tommy\u2019s gun, Tommy, Elkins and defendant came together \u201cto retrieve\u201d Tommy\u2019s gun. Meanwhile, a fourth shot was fired. Tommy broke away from the scuffling and leaned against a white Oldsmobile. The white Oldsmobile started away and Tommy fell. The only gun referred to by Bibey is Tommy\u2019s .22 pistol which Elkins had fired.\nThere is evidence which indicates hostility between Tommy and Elkins (and perhaps others) on the one hand and Donald, Corky and Tony Allred (and perhaps others) on the other hand. There was evidence from which it may be inferred that the three Allreds who were hostile to Tommy and Elkins were being transported on October 18, 1969, in defendant\u2019s red and white pickup truck, and that occupants of that truck challenged Tommy to come to Robbins Crossroads. There was evidence that Tommy was equipped with a loaded pistol and additional bullets. There was evidence that Tommy and defendant were good friends and evidence from which it may be inferred that defendant intervened to keep Tommy from inflicting injury or death by use of his .22 pistol.\nThere was positive evidence that at least one unidentified person, a \u201clittle bitty boy,\u201d had a pistol. Evidence as to the number of persons present and the number of shots fired at Robbins Crossroads during a period of hostility and confusion suggests that other unidentified persons had pistols.\nThe threatening language attributed to defendant by Deaton and Bibey related only to what defendant would do in the future.\nIt is well established that \u201c (c) ontradictions and discrepancies, even in the state\u2019s evidence, are for the jury to resolve, and do not warrant nonsuit.\u201d 2 Strong, N. C. Index 2d, Criminal Law \u00a7104. Ordinarily, such contradictions and discrepancies bear solely upon the weight to be given the testimony of a witness, a matter within the province of the jury. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934).\nHere the question is whether the State has offered substantial evidence that the fatal shot was fired by defendant. The evidence on which the State relies to establish this crucial fact involves more than mere contradictions and discrepancies. The testimony of McNeill, Deaton and Bibey relate to three separate and distinct occasions, each involving different circumstances immediately preceding Tommy\u2019s death. The version on which the State relies is not disclosed. The court\u2019s charge does not review any contention of the State with reference to the occasion and circumstances of Tommy\u2019s death.\nAlthough the evidence raises suspicions as to defendant\u2019s involvement and possible guilt in respect of the death of Tommy, the conclusion we reach is that the State has failed to offer substantial evidence that the bullet which caused Tommy\u2019s death was from a .25 automatic pistol fired by defendant. On account of the inadequacy of the evidence in respect of this essential element of the crime charged, we hold the circumstantial evidence insufficient for submission to the jury. For error in failing to allow defendant\u2019s motion for judgment as of nonsuit, the judgment of the court below is reversed.\nReversed.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorneys General Briley and Wood for the State.", "Dock G. Smith, Jr., and Pittman, Staton & Betts, by William W. Staton for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES ALLRED\nNo. 47\n(Filed 13 October 1971)\n1. Homicide \u00a7 21\u2014 homicide case \u2014 sufficiency of the evidence \u2014 defendant\u2019s firing of the fatal shot.\nThe evidence of defendant\u2019s guilt of second-degree murder or manslaughter was insufficient to be submitted to the jury, the homicide having occurred during a Saturday night scuffle at a rural crossroads, where the State offered uncontradicted evidence that the homicide victim died from a .25 bullet fired from a .25 automatic pistol, but there was no evidence that defendant had such a pistol at the time of the homicide or that he fired any pistol on that occasion.\n2. Criminal Law \u00a7 106\u2014 motion for nonsuit \u2014 sufficiency of the evidence \u2014 question of law\nTo withstand defendant\u2019s motion for judgment as of nonsuit, there must be substantial evidence against the accused of every essential element of the crime charged; whether the State has offered such substantial evidence presents a question of law for the court.\nAppeal by defendant from Long, JJanuary 25, 1971 Session of Moore Superior Court, transferred for initial appellate review by the Supreme Court under its general order of July 31, 1970, entered pursuant to G.S. 7A-31(b) (4).\nDefendant was indicted, in the form prescribed by G.S. 15-144, for the murder of Thomas Steven Brown on October 19, 1969.\nWhen the case was called for trial, the solicitor announced that the State would not seek a verdict of guilty of murder in the first degree but would ask for a verdict of guilty of murder in the second degree \u201cor a lesser included offense.\u201d\nThe only evidence was that offered by the State. It consisted of stipulations; a report dated August 12, 1970, by E. B. Pearce, Special Agent of the State Bureau of Investigation; and of the testimony of the following witnesses: Jack Elkins (Elkins); Darrell McNeill (McNeill) ; Jerry Deaton (Deaton) ; James Bibey (Bibey) ; June Brown, father of Thomas Steven Brown (Tommy), deceased; and Deputy Sheriff Coy Warf (Warf).\nDeputy Sheriff Warf arrived at the scene of the homicide at approximately 1:15 a.m. on Sunday, October 19, 1969. Tommy\u2019s body was lying in front of the filling station-grocery store at Robbins Crossroads, the intersection of N. C. Highways Nos. 705 and 27. The area in front of the building was completely paved and extended approximately 50 feet from the building to the highway. Pumps were in this area, being approximately 10-12 feet from the building. Tommy\u2019s car was parked next to the pumps on the side toward the highway and his body was beside his car, also on the side toward the highway.\nA .22 pistol was found under Tommy\u2019s body. The cylinder of this pistol held nine cartridges. At that time it contained \u201cthree spent cartridges\u201d and \u201csix rounds that hadn\u2019t been fired.\u201d \u201c(A) half-box of bullets\u201d was found in Tommy\u2019s car.\nIt was stipulated that Tommy died \u201cas a result of a gunshot wound received by him\u201d on October 19, 1969. The bullet removed from Tommy\u2019s body was fired by a \u201c.25 automatic.\u201d\nTommy, 21, was \u201ca little over five feet tall\u201d and weighed 138 pounds. June Brown, Tommy\u2019s father, testified that defendant was \u201ctwice bigger than (his) son.\u201d June Brown also testified that he had known defendant \u201croughly eight or ten years\u201d; that they had visited in each other\u2019s homes; that Tommy and defendant were good friends; that both were horsemen and frequently rode together; and that he had never heard of any quarrel or animosity between them.\nJune Brown testified to a conversation with defendant \u201cabout a month and a half\u201d before Tommy\u2019s death in which defendant stated that he had bought a .25 automatic \u201cblue steel\u201d pistol. He also testified that defendant had a red and white Ford pickup truck.\nOn Saturday night, October 18, 1969, there was a dance in West End, some 15 miles from Robbins Crossroads.\nMcNeill\u2019s testimony includes the following: He and his wife, Carolyn, and another couple, Tommy and Pat Williamson, had been riding around. They had parked for 35 or 40 minutes near the dance hall at West End. When they got ready to leave, Tommy, who had been sitting in the McNeill car, got out and started toward his own car. As the McNeill car was starting to drive off, \u201csome boys in a red and white Ford pickup told him (Tommy) he was chicken, to come to Robbins Crossroads.\u201d Williamson drove the McNeill car to Robbins' Crossroads and pulled up beside Tommy\u2019s car. An unidentified \u201cboy\u201d came up and talked to Williamson, \u201cusing a lot of language.\u201d When McNeill told him \u201cto hold it down,\u201d the boy walked around the car, stuck his head in the window and pulled a knife on McNeill and put it to his throat. He put the knife down when Tommy told him to leave McNeill alone, that McNeill \u201cwas a friend of his.\u201d As directed by McNeill, Williamson drove to the police station in Robbins, some two miles away. There \u201cwasn\u2019t any law there.\u201d McNeill told the \u201csix or seven boys\u201d who were there \u201cabout it\u201d and these boys and the McNeill party went from Robbins to Robbins Crossroads. The McNeill party had been gone from Robbins Crossroads twenty to thirty minutes. Upon returning, the McNeill car pulled up beside Tommy\u2019s car. Tommy was sitting in his car, alone. A police car was parked across the road. After the police car drove off, \u201csome more shots fired\u201d but McNeill could not determine \u201cwhere these shots came from.\u201d\nElkins, McNeill, Deaton and Bibey testified to events at Robbins Crossroads when Tommy was shot. Each testified in substance as narrated below.\nElkins version: He is 24 and lives in Robbins. He was Tommy\u2019s good friend and rode with him to their place of work in Siler City. A \u201cboy\u201d from Carthage was taking him to his home in Robbins. When he saw Tommy\u2019s car at Robbins Crossroads, he said he would get out and ride with Tommy to Robbins. As he started toward Tommy\u2019s car, three Allred boys, with whom he had had trouble, approached him in a hostile and abusive manner. Tommy was sitting under the steering wheel of his car and was loading his .22 pistol. Elkins asked Tommy for his gun and then \u201cgot it out of his hand.\u201d He went to the back of Tommy\u2019s car. The three Allred boys were coming toward him. He shot three times into the ground in front of them. They ran. After he had fired the three shots, Tommy got out of the car, came back to where he was standing, and said, \u201cJack, give me my gun back, I don\u2019t want no trouble,\u201d or something like that. He gave it to Tommy. When Tommy got his gun back, defendant, whom Elkins had not seen, grabbed him by his coat. Defendant had \u201ca small handgun\u201d in his right hand which he stuck in his (Elkin\u2019s) face. The gun \u201cwasn\u2019t very long.\u201d He did not recall whether it was chrome-plated, \u201cwhat color it was or anything about it.\u201d When he saw the gun, \u201cit scared (him) so bad (he) just gave a big jerk\u201d and left defendant holding his coat. He ran. through a person\u2019s yard and through a honeysuckle thicket. The three Allred boys came after him and started hitting him. One of them had a knife. He had not seen defendant earlier that evening anywhere. Nor had he had any prior difficulty with him. Nor did he see any conversation or difficulty between Tommy Brown and defendant. He heard no shooting other than the three shots he fired. When these events occurred, there \u201cwere several cars out in the yard to this store . . . more than three or four.\u201d Also, there \u201cwere right many people out in the yard of the store.\u201d He had heard that Tommy Brown and defendant were good friends. The three Allred boys who had attacked Elkins were Donald, David (Corky) and Tony.\nMcNeill version: Upon returning to Robbins Crossroads, McNeill told Tommy to come over and get into the McNeill car so they could leave. Tommy said, \u201cWait just a minute, let me reload my gun.\u201d Tommy reloaded his gun, got out of his car and walked to the front. At that time, \u201cthere was shooting,\u201d two or three shots. There were \u201cfour or five other people there at the front of Tommy Brown\u2019s car.\u201d One was a \u201clittle bitty boy\u201d who had a pistol. McNeill\u2019s attention was diverted because he \u201cwas having trouble with (his) wife.\u201d When he next observed Tommy, Tommy and \u201ca heavy-set fellow\u201d came by the McNeill car, \u201cwrestling.\u201d As they passed, McNeill observed a pistol in Tommy\u2019s hand. He observed no weapon in the hand of the \u201cother person.\u201d After they had passed alongside of McNeill\u2019s car, McNeill heard three or four shots but could not tell whether they came from the front or back. Shortly thereafter the \u201cother person\u201d came back by McNeill\u2019s car. At that time, he had \u201ca little short gun\u201d in his hand. He proceeded to a red and white pickup truck, which was \u201c35 to 50 feet in front\u201d of the McNeill car. He and two or three others got into the pickup and rode away. McNeill went to the back of his car. Tommy was lying there. His pulse was not beating. When McNeill returned from Robbins, \u201caround ten or fifteen\u201d were there at Robbins Crossroads. \u201c(O)ff and on,\u201d eight or ten shots were fired. McNeill could not swear to whether the \u201cbig man\u201d who came alongside his car, scuffling with Tommy, was a person then in the courtroom.\nDeaton version: He saw Tommy in the McNeill car at West End. He drove, alone, from West End, saw Tommy\u2019s car at Robbins Crossroads and stopped, parking close to and to the rear of Tommy\u2019s car and headed toward the pumps. McNeill\u2019s white Oldsmobile was there; also, defendant\u2019s red and white Ford pickup. The pickup was about 40 feet from Tommy\u2019s car. He thought it was \u201cbetween the gas pumps and the store.\u201d He did not know \u201cany trouble (was) going on.\u201d He did not see Elkins. When he got out and walked by McNeill\u2019s car, McNeill was mad and asked to borrow his knife. He refused, seeing \u201cthere was trouble.\u201d He first saw Tommy when he and others were together \u201cjust beside the gas tanks.\u201d Defendant was in this group. He saw no fighting at that time. Soon thereafter he saw Tommy and defendant fighting. There \u201cweren\u2019t much of a fight to it.\u201d Defendant had Tommy by the hair of his head and hit him \u201cone or two times,\u201d knocking him \u201cthis way and this way\u201d until Tommy fell. He (Deaton) was about ten feet from Tommy. Tommy \u201cwas unconscious or dead.\u201d He started toward Tommy to see \u201chow bad he was hurt.\u201d When he heard somebody say Tommy had been shot, he went to his car \u201cto go get the ambulance.\u201d The only gun he saw was \u201ca nickel-plated, short gun, four or five inches long, and Tommy had it.\u201d \u201c(T)wo boys\u201d asked Tommy for the gun but he \u201cwouldn\u2019t give it to them.\u201d He \u201cheard them say, \u2018(a)t least unload it.\u2019 \u201d Earlier in the night, he (Deaton) heard \u201cthree shots,\u201d \u201cway over to the left,\u201d but did not know where they came from. He did not see defendant fire a shot or have a gun at any time that night. When defendant was holding him, Tommy was standing up straight. When defendant hit Tommy, defendant said: \u201cS.O.B., you hear me now.\u201d\nBibey version: He drove from Carthage to Robbins Crossroads. Elkins rode with him. Upon his arrival at Robbins Crossroads, \u201cfive or six cars\u201d were there and probably \u201ctwelve or thirteen or fourteen people.\u201d He knew \u201ca few of them\u201d when he saw them but not \u201cby name.\u201d He parked approximately 15 or 20 feet away from Tommy\u2019s car. Elkins got out of Bibey\u2019s car and went over to see if Tommy would carry him home. Elkins was talking with Tommy, standing at the door of his car, when he heard \u201cthe Allred boy\u201d curse Elkins and also heard some discussion about getting a gun out of Tommy\u2019s car. Elkins did get the gun, and \u201cwas running the Allred boys around .... shooting at them or at the ground. ...\u201d He did not know \u201cwhat Allred boys these were.\u201d At that time, defendant \u201cwas standing and backing away from the trouble.\u201d He was \u201cquite a ways from Brown.\u201d As the Allred boy(s) ran \u201cin the darkness,\u201d Elkins ran over to the corner of the service station. Then Tommy came over from his car to Elkins as if to retrieve the gun, saying something about \u201cgive me the gun before someone gets hurt.\u201d Elkins did not give it to him. Then Elkins, Tommy and defendant \u201ccame together as if to retrieve the gun.\u201d Previously, three shots had been fired by Elkins. A fourth shot was fired about the time Elkins, Tommy and defendant were scuffling. Bibey did not know who fired the fourth shot. It sounded like the others. Tommy broke away from the scuffling, stepped back, walked around and leaned up against a white Oldsmobile. When the Oldsmobile started to pull off, Tommy \u201ctumbled over on the ground.\u201d Elkins also broke away from defendant and ran. After the white Oldsmobile backed away, Tommy was lying on his back. Defendant came over to him and got \u201ckindly on his knees\u201d in front of Tommy. He seemed to be striking him. He was threatening to kill him, saying, \u201cgoddamn you, I\u2019ll kill you, you believe that, I\u2019ll kill you.\u201d Bibey was then backing his car around and did not know what defendant did thereafter.\nTommy was killed near midnight. The filling station-store was closed for the night. Elkins, McNeill, Deaton and Bibey differ in respect of the exact time each of them arrived at Eobbins Crossroads and in respect of the extent the area was lighted.\nThe jury returned a verdict of guilty of manslaughter and the court pronounced judgment which imposed a prison sentence of not less than eight nor more than ten years.\nAttorney General Morgan and Assistant Attorneys General Briley and Wood for the State.\nDock G. Smith, Jr., and Pittman, Staton & Betts, by William W. Staton for defendant appellant." }, "file_name": "0398-01", "first_page_order": 426, "last_page_order": 434 }