State v. Moseley , 251 N.C. 285 ( 1959 )

111 S.E.2d 308 (1959) 251 N.C. 285

STATE
v.
Edward Joseph MOSELEY, Ferman Gill Abbott, George Newcomb Edwards, Henry Clay Harris, Joseph A. Hale, William M. Jarrell, Willie S. Jarrell, Millard Charles Williamson, Curtis Rose, Leonard Barham, Jimmie James Mulchi, George Clarence Anstead, Gilbert Lee Clayton, Willie Furman Tart, Willie Howard Anstead.

No. 364.

Supreme Court of North Carolina.

November 25, 1959.

W. M. Nicholson, James B. Ledford, Charlotte, James J. Randleman, Elkin, and L. Glen Ledford, Charlotte, for appellants.

Malcolm B. Seawell, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen., for the State.

MOORE, Justice.

It was stipulated that before the bill of indictment was found and returned in Superior Court warrants for appellants had been issued and executed charging the identical offense charged in the bill, that these warrants were docketed in the Recorder's Court of Vance County and that defendants had made deposits as required by law for jury trials in Recorder's Court on the warrants. It was further stipulated that the State, prior to the finding and return of the bill of indictment in Superior Court, made the following entry on the record in Recorder's Court in this case then pending there: "The State takes a nol. pros." The deposit for jury trial had not been refunded at the time of the return of the bill of indictment in Superior Court.

Defendants in apt time moved that the cause be remanded to Recorder's Court for trial. The court denied the motion. Appellants contend that the court was in error in refusing to remand and assert that since "Recorder's Court had first taken cognizance * * * Recorder's Court had jurisdiction thereof to the exclusion of the Superior Court."

We hold that the refusal of the court to remand was not error. This identical question was considered and decided in State v. Clayton, N.C., 111 S.E.2d 299. The question is fully discussed therein with full citations of authority and further discussion here would serve no useful purpose.

R. C. Duncan, B. L. Radford and B. H. Jackson, members of the State Highway Patrol, testified for the State. The court admitted in evidence, over objection of defendants, affidavits previously made by these witnesses "for the sole purpose of corroborating the witness(es) * * and for no other purpose, if * * * the jury find that (they do) corroborate (their) testimony, (the jury) being the sole judge of what that testimony was." The witnesses were cross-examined about the matters contained in the affidavits.

In the admission of the affidavits we find no error. The court restricted this evidence as indicated by the matter in quotations above and further instructed the jury that the affidavits are not substantive evidence and that the jury should not consider them as such. This identical question was decided in State v. Rose, N.C., 111 S.E.2d 311. Legal authorities are fully cited therein.

Defendants Moseley, Edwards, Rose and Clayton assign as error the denial of their motions for nonsuit at the close of the evidence. G.S. § 15-173.

The evidence in its aspect most favorable to the State tends to show: Henderson Cotton Mills is situate on the south side of Alexander Street in the City of Henderson. The street runs east and west. Former mill workers were on strike and the mill was operating with other workers. The mill changes "shifts" at 3:00 P.M. About 2:45 P.M. on 16 March, 1959, a group of 50 to 60 men came from behind a church on Alexander Street approximately 300 yards west of the mill gate. All the men in the group were carrying in their hands rocks, brickbats, bottles, clubs and other objects. They proceeded westwardly along the sidewalk on the north side of Alexander Street to a point about 500 yards from the mill gate. They waited at this point until cars carrying workers from the mill began to pass. When the first car passed a shower of rocks, bottles and other missiles were thrown by the group and the car was hit by 15 to 20 of these. The group was cursing and threatening the occupants. As the second and third cars passed there were similar incidents. The third car was struck by about 25 missiles. A few highway patrolmen were on the scene and grabbed 4 or 5 of the group but did not arrest them then because they were "pulling back." The group was cursing. About 35 more patrolmen appeared on the scene and 26 men from the group were arrested. The others fled. The group cursed and threatened the officers. George Newcomb Edwards was in the group, was present when the missiles were being thrown at the cars and was one of those arrested. Gilbert Lee Clayton was a member of the group and had a stick in his hand at the time of his arrest. Curtis Rose was in the group when it came from behind the church and was one of those arrested; he carried a stick in his hand. Edward Joseph Moseley was a member of the group that came from behind the church; he was present when the missiles were thrown; when the patrolman attempted to arrest him he ran but was overtaken and arrested; a slingshot was found stuck in his belt inside his shirt.

The offense of riot is composed of three necessary and constituent elements: (1) unlawful assembly; (2) intent to mutually assist against lawful authority; and (3) acts of violence. State v. Hoffman, 199 N.C. 328, 332, 154 S.E. 314. All of these elements are present in the instant case. Under the facts herein the State was entitled to go to the jury as against Moseley, Edwards, Rose and Clayton at least on the theory that they were present and were aiding and abetting the rioters. The court instructed the jury fully and correctly as to the requirements of the law to constitute one an aider and abettor. Upon a motion to nonsuit the facts must be considered in the light most favorable to the State. State v. Troutman, 249 N.C. 395, 396, 106 S.E.2d 569. Matters of defense will not be considered on a motion for nonsuit. State v. Harrison, 239 N.C. 659, 662, 80 S.E.2d 481. Discrepancies in the State's evidence will not justify the granting of a motion for nonsuit. State v. Bryant, 250 N.C. 113, 117, 108 S.E.2d 128.

In this Court appellants move for arrest of judgment on the ground that the bill of indictment fails to allege assembly for an unlawful purpose as a necessary constituent of unlawful assembly. This motion is denied on authority of State v. Rose, supra. The bill of indictment in the instant case is the same in content as that in the Rose case.

In the trial we find

No error.

HIGGINS, J., not sitting.