State v. Potter

Montgomeey, J. The prisoner was convicted of murder in the first degree of A. W. Howell at Spring Term, 1903, of the Superior Court of Watauga County. There was evidence on the part of the State tending to show that a warrant was issued by a justice of the peace and placed in the hands of Calvin Turnmire, a constable, to be served on the prisoner, and that another warrant issued by a justice of the peace named Smith, in which the prisoner and Boone Pot — 720 — ter, bis near kinsman, were intended to be charged with a forcible trespass, was placed in the hands of the deceased as a specially deputized officer for service on the accused; that Turmnire and the deceased, together with Will Hamby, Joe Wilson and June Snider, on the night before the homicide, met and stayed all night in the house of a man by the name of Hodges, a short distance from a saw-mill where it was anticipated, that Clarence and Boone Potter would bring saw-logs to the mill; that on the early morning of the next day, the 5th of November, Clarence and Boone arrived with a load of logs on a wagon drawn by four mules, whereupon Turnmire, who testified that he had summoned Hamby to assist him in the arrest of Clarence, while the deceased and the others, Wilson and Snider,. were to arrest Boone, walked up to Clarence and told him that he had a warrant for him; that Hamby read the warrant to Clarence who was standing behind the wagon and about fifteen or twenty paces from Boone, who was in front of the lead mule; that Hamby, when he read the warrant in an'ordinary tone had his back towards Boone, and that just about the time of the conclusion of the reading of the warrant by Hamby to Clarence, Boone came around to Clarence and said “Come on, cousin”; whereupon both mounted the wagon and drove rapidly off down the road toward their home. There was no evidence that either one of the party had said a word about the arrest of Boone before the wagon was driven off. The whole posse overtook and headed off the team, after having given chase for about three hundred yards, at a branch or creek that crossed the road. The witnesses for the State testified that the deceased, with a pistol in one hand and the warrant plainly visible in the other, headed off Boone who was driving the team, at the same time demanding his surrender and notifying him that he had a warrant for his arrest; that thereupon Clarence, who was on the other side of the team, — 721 — banded bis pistol across tbe bind mule to Boone, wbo thereupon shot tbe deceased in tbe arm and breast, while almost at tbe same time tbe prisoner Clarence struck the deceased on tbe forehead with a large stone. Tbe prisoner testified that tbe deceased fired at Boone first. Howell died three days afterwards. Pour physicians were examined, but we can get very little out of their evidence, except that either wound might have caused tbe death. The case was tried with great care by bis Honor, and with marked ability be instructed tbe jury upon tbe many perplexing and important features of tbe case. In one aspect of tbe case, however, bis Honor committed an error, that error being founded on a mistaken view of tbe nature of certain of tbe evidence. His Honor in stating tbe contention of tbe State used this language: “Bpon this indictment tbe State first maintains that tbe prisoner is guilty of murder in tbe first degree; that be maliciously and feloniously, and with premeditation and deliberation, slew tbe deceased with a deadly weapon, or aided, assisted and helped to do it, or conspired, co-operated and acted in concert with Boone Potter in thus slaying tbe deceased.” It is to be seen from the contention of tbe State that a conspiracy on tbe part of Boone and tbe prisoner to kill tbe deceased was one ground upon which tbe State relied to show deliberation and premeditation on tbe part of tbe prisoner, and on that point bis Honor instructed tbe jury: “You are instructed further that tbe burden is upon tbe State to satisfy you beyond a reasonable doubt, not only that tbe killing was done by tbe prisoner, or by bis assistance, aid, help and consent, or in consequence of concert and conspiracy with another (tbe word conspiracy italicised by us), but also with deliberation and premeditation. * * * And if you find that tbe prisoner slew tbe deceased with a deadly weapon, or that be conspired with or aided and abetted Boone in doing tbe killing with a deadly — 722 — weapon, yon will examine all the evidence and circumstances and say whether yon are satisfied from them that the killing was done with premeditation and deliberation, and if you so find, you will find the prisoner guilty of murder in the first degree.” His Honor, to make plearer his meaning in connection with that part of his charge, said: “In other words, if the State has shown beyond a reasonable doubt— and you so find — that the deceased and those associated with him had a lawful warrant from a justice of the peace to arrest Clarence Potter, the prisoner, and also a lawful warrant to arrest Boone Potter for shooting into and breaking into a house, and on the day the deceased was injured the deceased and the posse with him, duly summoned for the purpose and acting with him as such posse, read the warrant to Clarence and notified him to consider himself under arrest, and that this was done openly in the daytime within about fifteen paces of Boone Potter, and you further find that Clarence failed to submit to the arrest, but under a suggestion of Boone got on the wagon then and there hitched, and under their control, and hurriedly drove away, and you further find that the deceased and his associates with their warrants pursued and overtook them, said Clarence and Boone and their associate, Heck, at the branch, and that thereupon the deceased, with the warrant open in his hand, notified Boone that he had a warrant for him, in hearing distance of Boone and Clarence, and by declarations made by the deceased or the posse both Boone and Clarence were fixed with the- knowledge that the deceased and his associates were clothed with a warrant to arrest Boone, and you find that Boone hastily descended from the wagon on one side and Clarence on the other, and by pre-concert and understanding and agreement between themselves the prisoner handed Boone a pistol over the mules in consequence of words or motions between themselves, and thereupon Boone delib — 723 — erately and premeditatedly shot at tbe deceased twice in rapid succession with tbe deliberate intention to take bis life, and yon find that tbe death of tbe deceased ensued from tbe wound inflicted, Boone Potter would be guilty of murder in tbe first edgree; and if, in addition to the foregoing facts you find that Clarence understood that tbe officers bad a warrant for himself and bad read it to him, and that be was there engaged in escaping from tbe officers, and that Boone understood this, and that they were acting in cóncert in flight, and you find that Boone and Clarence from their acts and conduct were acting in concert throughout, and both bad predetermined and agreed to resist arrest to tbe extent to take tbe life of any one of tbe officers authorized to execute tbe warrant, and with premeditated and deliberate purpose to resist tbe arrest of Boone by tbe deceased or bis associates, or tbe arrest of himself, tbe object of tbe officers being known, and with a premeditated purpose to kill to effect their purpose, and in pursuance of this purpose be banded Boone tbe pistol to kill tbe deceased, and Boone shot tbe deceased with tbe pistol and thereby inflicted injuries from which tbe deceased died, tbe prisoner is guilty of murder in tbe first degree, and you will so find.” It is clearly to be seen from bis Honor’s instruction that be not only regarded what occurred at tbe saw-mill at tbe time tbe officers attempted to arrest Clarence as evidence tending to show a part of a conspiracy between Boone and Clarence to resist tbe officers, even if it became necessary to kill one or all of them, but be carefully recited to tbe jury all tbe incidents connected with tbe attempted arrest. We cannot agree with bis Honor that tbe facts connected with tbe attempted arrest at tbe saw-mill furnished any evidence whatsoever of a conspiracy to kill one or all of tbe officers or any one of tbe posse. Boone, by all of tbe evidence, did not know at tbe saw-mill and at tbe time of tbe attempted arrest — 724 — of Clarence tbat any warrant bad been issued for bim. It seems tbat tbe jury believed tbat Boone beard tbe warrant read to Clarence, although he was fifteen or twenty paces off with a wagon and four mules between him and Hamby who read tbe warrant, and Hamby speaking in an ordinary tone and witb bis back towards Boone; but that evidence having 'been believed by tbe jury, though it might have been sufficient to justify them in finding that there was an agreement' between Boone and the prisoner entered into at the very time of tbe arrest of Clarence to effect tbe escape of Clarence, it certainly, in our judgment, was not evidence of a conspiracy to kill the deceased or any member of the posse. In fact the witnesses for the State showed that neither Boone nor Clarence had made any preparations to use Clarence’s pistol on the occasion before the arrival of the party at the branch where tbe team was beaded off, neither Boone nor the prisoner had heard anything of tbe warrants or the preparations to arrest either Boone or Clarence before their arrival at the saw-mill; and at tbe branch Clarence’s pistol was between bis overalls and his trousers, and bis suspender had to be unbuttoned before he could get tbe pistol out; all of which goes to show tbat not until the parties left the saw-mill was there any preparation made to use the pistol. As we have said, this case was conducted by bis Honor with marked ability, and so far as bis connection witb tbe making up of the case on appeal is concerned all is correct; but the remainder of the record comes before us in poor shape. In many parts of the evidence bearing on vital points of the case we are at a loss to understand what the witnesses said; then, there are hyphens and blank spaces and inconsistent words, confusing to the understanding. This is especially so in respect to the two warrants said to have been issued for the prisoner and Boone. Those papers are referred to as Exhibits “A” and “B,” but they are no — 725 — where to be seen in the record. They are not alleged to have been lost and no proof of their contents is offered. For the one error pointed out there must be a New Trial.