State v. . Bishop ( 1902 )

CLARK and MONTGOMERY, JJ., dissenting. The prisoners are indicted for the (734) murder of Thomas Stevenson; found guilty of murder in the first degree, and are now under sentence of death. The evidence discloses the following facts:

C. T. Peele is a merchant in Bertie County, and on the morning of 9 April Joe Peele left an order at his store to let Jim Stevenson have twenty pounds of meat and a sack of meal; that evening about 4 or 5 o'clock Peele's wagon drove up to the store with the prisoners in it. Melton Belfield, it seems, came up about the same time. It seems that they had been to some kind of a gathering at a place called Kelford that day, and were returning. It further appears that all three of the prisoners and Melton Belfield went into the store, and Jim asked for the meat he was to get. Peele, the owner, and Stevenson, the deceased, who was a clerk, were both in the store. Jim said he wanted to look at some shoes, and the deceased said to Peele, "You show him the shoes and I will go and weigh the meat," which seems to have been in another room. About this time Melton Belfield commenced to curse the deceased, calling him the meanest thing he could think of, among others, a "son of a bitch." The deceased said he would not take that, and reached up and got his pistol. Peele ordered them all out, and they all went but Melton. He did not go at once; and Jim came back in the store and took him by the arm and tried to get him out. But it does not seem that he succeeded as Peele says he gave Melton some "soda" and went with him to the door, and turned to go and weigh the meat, and met the deceased going to the door. He then heard pistols firing; turned back, and they were all out of doors, and the deceased was shot. There were quite a number of shots, he thinks as many as ten or fifteen, but he saw no one shoot but Melton, and did not see either of the prisoners have a pistol nor take any part in the fight. These are as near the facts as we can get them from Peele's evidence.

(735) It seems that the deceased was shot in four places, and as many as seven shot holes were in his clothing, and, from the evidence of Dr. Capehart, the shots were fired from behind. Some of the witnesses, who were some distance from the place of the homicide, thought there were as many as twenty shots. It does not appear whether the deceased's pistol was empty or loaded. No witness saw either of the prisoners shoot, nor have a pistol. Stevenson was killed almost instantly. Melton Belfield escaped, and was afterwards killed in being arrested.

This was an unfortunate affair. Two men are dead and three are now under sentence of death. The prisoners are further unfortunate; the man that was killed was a white man and the prisoners are negroes and are kin to Melton Belfield.

The charge of the court is not sent up, and we must presume it was correct, except as to the refusal to give the special instructions asked by the prisoners. These were as follows:

"1. That upon the evidence the jury cannot find a verdict of murder in the first degree.

"2. That upon the evidence the jury cannot find a verdict of murder in the second degree.

"3. That upon the evidence the jury should render a verdict of not guilty."

From the many decisions of this Court since the act of 1893, dividing murder into two degrees, the law of murder in the second degree, manslaughter, excusable and justifiable homicide is the same as before the passage of that act, except as to the punishment, which is not capital now. S. v. Rhyne, 124 N.C. 847. And, outside of the enumerated cases, such as "poisoning, lying in wait," etc., to make the crime murder in the first degree and a capital felony, the State must prove, in addition to malice, that the killing was done with "deliberation and premeditation." And it is held that such deliberation and premeditation does not mean that the prisoner intended to kill at the (736) moment he gave the fatal blow. This is not sufficient. But he must have coolly and deliberately considered the consequences of his act before putting it into execution, in order to make the killing murder in the first degree and a capital felony. S. v. Foster, 130 N.C. 666, which case carefully reviews the statute and the decisions of this Court thereon, and is an authority for the law as stated above. And we see no evidence in this case showing or tending to show "premeditation" or "deliberation" on the part of the prisoners, if they did the killing. The store at which the killing took place was a public place, to which parties were invited and expected to go. They were, therefore, not trespassers nor intruders; and when the difficulty commenced between Melton Belfield and Thomas Stevenson (the deceased), and they were ordered out of the store, the prisoners immediately went out, and Jim Stevenson went back in the store, took Melton by the arm and tried to get him out. Melton did not go out immediately, and Peele gave him some "soda," and he then went out. Peele then turned and started to the wareroom to weigh the meat, and met the deceased going to the door with his pistol, and very soon thereafter the firing commenced. Peele at once turned back, and, when he got to the door, Melton (deceased) and the prisoners were all out in the road, about fifteen feet from the store. The deceased was down. And he saw no one shoot except Melton. Besides, this store being a public place, where all persons were invited to go, the undisputed evidence is that one Joe Peele had that morning left an order at the store to let Jim Stevenson have twenty pounds of meat and a sack of meal; and that evening Peele's wagon drove up, with the prisoners in it or with it, and they went in the store, and Jim asked if Peele had left the order, and was told that he had.

Upon these facts the court, though specially requested (737) to do so, refused to instruct the jury "that, upon the evidence, the jury cannot find a verdict of murder in the first degree." In refusing to give this instruction there was error.

But to entitle the State to a verdict for anything, it must prove the killing by the prisoners. That Thomas Stevenson was killed, there is no dispute. But the evidence strongly tends to show that he was killed by Melton Belfield, and the prisoners deny that they killed him. Admitting that there was some evidence tending to show that there were other shots fired besides those Melton fired (and this is the only evidence showing or tending to show that anyone but Melton fired), not a single witness points out or identifies anyone except Melton that did fire. It may be well said, from this evidence, that if any shots were fired except by Melton and the deceased, it was by some one of the prisoners, but which one, or which two, was it that fired? No witness says or undertakes to say which one it was. Indeed, they say they cannot say which one, nor can they say that they all fired. Unless this could be done, then, in the entire absence of any evidence that the killing was the result of a conspiracy, agreement or understanding between the prisoners, or the prisoners and Melton Belfield, to commit the murder, none of the prisoners can be convicted. If they could, it would be to convict an innocent man rather than fail to convict a guilty man. This is not the law. Where two or more are indicted for murder, and the evidence shows that one of the prisoners is guilty, but the evidence fails to show which one, they must all be acquitted.

"Although it may be positively proved that one of two or more persons committed a crime, yet it is uncertain which is the guilty party, all must be acquitted. No one can be convicted till it is established that he is the party who committed the offense." Campbell v. People, 16 Ill. 17; 61 Am. Dec., 49.

(738) If the evidence showed that all the prisoners participated in killing James Stevenson, then they would all be guilty of the same offense, if guilty at all. But we submit that the evidence does not show this to be the fact in this case. And as it is contended on the part of the State that it does, and as the entire evidence is made a part of the case on appeal, we insert as a part of this opinion the entire evidence; and we are satisfied, upon an examination of the entire evidence, it will not show, as the State contends it does (1) that the "four went in a body"; (2) "that soon thereafter . . . all four were chasing the deceased and firing at him as he ran"; (3) "that all four jumped in a wagon and drove hurriedly off," (4) "firing at him as he ran"; (5) "all engaged in the joint common assault"; (6) "the pursuit by four men following up one who is fleeing and trying in vain to escape"; (7) "that the prisoners and Melton going off together"; (8) "the deceased acknowledged himself vanquished by fleeing, and was pursued by superior numbers"; (9) "and again after he was down and all four participating in the last bloody and savage act"; (10) "when (if the evidence is believed) the four men pulled out their pistols and commenced firing upon one man, and continued to pursue and fire upon him while falling"; (11) "the evidence is that in a few minutes all of them were using pistols"; (12) "the white man is seen out of doors, running for his life, with all four chasing him, and four pistols barking on his back"; (13) "then all four men jumped in the wagon and drove off."

We say that a careful perusal of all the evidence will fail to show that the above statements were proved, as is claimed to have been done by the State.

The common-law definition of murder is stated by Sir Michael Foster, on page 255 of his Crown Laws, as follows: "In every charge of murder, the fact of the killing being first proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner, unless they (739) arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appears." This definition of murder, at common law, has been adopted by the courts of this State, and has never been departed from, so far as we know. This definition applies to murder in the second degree, since the act of 1893, dividing murder into two degrees.

But it is now claimed for the State that the common-law definition presumes "malice and premeditation." If this were true, that, when the killing was shown, "premeditation" was presumed, the State need only show the killing to make it murder in the first degree. If this were so, it at once emasculates the statute of 1893, and every murder would be murder in the first degree, unless the prisoner could prove the negative — that he did not premeditate. But the statute itself expressly provides that, to make the offense murder in the first degree, the State must prove the "premeditation."

There was error also in refusing to give the second and third prayers for instructions.

Error.

The evidence is as follows: "Your name is C. T. Peele? Yes, sir. Did you know Mr. Stevenson? Yes, sir. Please state all the facts concerned with the killing of young Mr. Stevenson. On the morning of 9 April Joe Peele came to our place of business and told me to let Jim Stevenson have twenty pounds meat and sack of meal. About an hour a wagon passed the door. About 4 or 5 o'clock Peele's wagon drove up. Jim Stevenson walked in and said, ``Did Mr. Peele leave word here to get any meat?' I told him ``Yes.' We waited a few seconds, and about that time Jim Stevenson said, ``We want to look at some shoes,' and Mr. Stevenson said, ``You go and show them the shoes (740) and I will weigh the meat and meal.' Stevenson went in the grocery room and I went for the shoes. Melton Belfield came in and cursed, and in a few minutes June Bishop said, ``Stevenson (meaning the clerk), come on and weigh the meat.' John Belfield said come on over where they were, and laughed. Melton Belfield was in there, quarreling, and I ordered him out, because he was bringing on trouble. What happened then? Melton kept cursing, and Mr. Stevenson spoke to him and said he was getting tired, and reached up and got his pistol, and Melton remarked he was not scared of him. I walked around the counter and gave soda to Melton and told him to get out. That was at the door. I was going to the door. Mr. Stevenson was around the counter. I was at the door. Nobody in the store but us three. All rest went out door (the other three men). John Belfield came back in there and was at the door. He came in there and took hold Melton's arm and asked him to come out, but he did not come out. John went out. I went with Melton to the door, and Melton called Mr. Stevenson a damned son of a bitch, and Mr. Stevenson made for the door. The three (defendants) were standing there. What other men were there? I don't know. I left Mr. Stevenson standing in the door and went to the grocery room. I got about half-way and heard pistols fire, and when I got back I saw Melton shoot Mr. Stevenson. When you got to the door did you see these other three men? Yes, sir. How far were they? Fifteen or twenty yards. How many shots were fired? Fifteen. (Here the witness showed the positions.) How near was Mr. Stevenson to the wagon? He was right at the wagon. When you saw the last shot fired, where did you see these three men? In the road. How far was Mr. Stevenson? Right there. Saw no other men but the prisoners and some women? They were behind Melton Belfield. When I went to the door he fired the last shot and was standing over him. You say Jim Stevenson was one of (741) the main ones — what did they all do then? They were hollowing to Melton to come on, come. I ran to Mr. Stevenson and found him dead. How long did he live? A few minutes — died right there on the road. Did you find any of the bullets? Yes, sir; I found one in the grocery room. Any hole in the side of the house? Yes, sir; it went in the front, back through, and hit box and fell in it; it was a 32. Where was that hole in side of house? It went in diagonally. (Here witness showed how it went in.) When you went out first, where was Melton Belfield? He was just a few steps off. Where was he standing? Nearly in the direction of that hole. Did you find any other bullets? Yes, sir; in the store; it fell out of his clothes. Is that the bullet? Yes, sir; 38. Did you bring those clothes here? Yes, sir. (Clothes were here presented and examined and holes shown to the jury.) Did you order these parties out? Yes, sir. Did they go out? All but Melton. Did the other three come back? Yes, sir; Melton remained in. What did he say? Melton called Mr. Stevenson a damned son of a bitch. What else did he call him? Damned scoundrel — poor white rascal. What connection are they? Melton and John Belfield are brothers, and June Bishop and Jim Stevenson are Melton's brothers-in-law."

Cross-examination by W. R. Johnson: "You stated they went in there to do some trading. Who was the leader? Melton. When you ordered them out, did these three prisoners go out? Yes, sir. They did not take any part in the row, did they? Not specially. Didn't these men go to Melton and ask him to come out? John did. It appeared to you that they were trying to stop the trouble? Did you find Mr. Stevenson's pistol? Yes, sir. Did he shoot Melton Belfield? I do not know. Did you see pistol in Mr. Stevenson's hands? No, sir. Did these three men here appear to be peaceable? Not particularly; they were quarreling. John called back after Melton, (742) didn't he? Yes, sir. These three men were not taking any part in the shooting affray, were they? I don't know; I was in the grocery room. How long were you gone in the back room? I came back soon as I heard the pistols firing. You ran, did you? Yes, sir. They were trying to get Melton away? Yes, sir. They were not trying to hurt Mr. Stevenson? No, sir. When Mr. Stevenson went out of the door, did you hear Mr. Stevenson say he was going to kill the damned black son of a bitch? No, sir. How far was Mr. Stevenson lying? About fifteen steps. There was nothing to indicate that he was pulled out there? I do not think he would have run out there. He was after Melton Belfield? Yes, sir. Did you see any pistols in the hands of these fellows? No, sir. They were doing everything they could to get him away from there? Yes, sir; John hollowed to him to come out. You do not pretend to say that Mr. Stevenson did not go out of the door? (Here the witness was asked by the solicitor where the man was shot, and the witness showed him.) The bullets could have been shot in him after he fell, couldn't they? I did not see but one shot."

By the solicitor: "When you heard them crying, ``Come on, come on,' that was when you saw the last shot fired? Yes, sir."

Evidence of J. L. Andrews, for State: "Where do you live? In Roxobel. Please state everything you heard or saw concerning this killing. I heard a few reports of shooting. Where were you? In my house. How far off? Thirty-seven yards from Peele's store. I thought they had been down to the celebration at Kelford, but it lasted so long I thought something was the matter. How many shots were fired? Fifteen or twenty. What did you finally do? I went to the door and saw Melton Belfield standing right over Mr. Stevenson, and he shot him as I got to the door. I stepped to the door with the (743) determination of going there, and Belfield ran. Did you see any other person? No, sir; no one but Belfield and Stevenson. You could see no other persons but those two? I could not think of anything else. Did you find anything about the place after he fell? Next day I picked up a ball just about the place Mr. Stevenson was lying; it was a 32. You know nothing about what happened inside the door? No, sir. You directed your attention just to those two? I couldn't think of anything else."

Cross-examination: "Your store is thirty-seven yards from Peele's door? Yes, sir. You said when you came out you did not see anything but Melton Belfield bending over Mr. Stevenson, shooting? Yes, sir. If these men (the prisoners) had been there, you could have seen them? The shooting was about over. I say, if these men had been engaged in it, you could have seen them? Yes."

By the solicitor: "What position was Stevenson in when you got there? Leaning on his left arm, and commenced leaning over till he fell, and dying in a few seconds."

By attorney for defendant: "Can you swear there were as many as fifteen or twenty shots? Yes, sir; sounded like pop-crackers."

Evidence of A. T. Liverman, for State: "Your name is Mr. A. T. Liverman? Yes, sir. Were you present in Roxobel on the evening of this shooting? Yes, sir. About 5 o'clock on the 9th April — I did not look at the clock — I went in same direction, about thirty yards; I heard several pistols. I looked and looked the road, and saw several men who seemed to be engaged in a wrangling, and firing went on, and I remained there, when over four or five shots were fired; then three reports, with slight lapse of time between the shots. After that I don't know what took place. I know there were several more pistols. I saw five men four around one who seemed to be trying to get away. I saw four men who seemed to be pressing around the men. One man was trying to get away. The four men were (744) trying to stop him. Two men seemed to be behind the wagon. I saw him when he was falling. He appeared whiter than other four. I saw one man at his feet and one man at the fallen man and one there. Just as he was falling, the pistols were firing repeatedly. I saw two men leave on right of the wagon, and one on left of the wagon, and one seemed to remain a little longer. The last man that remained then ran off, and somebody was hollowing, and I heard some one say, ``Drive, drive.' I was about 160 yards from where the firing began. I went about 120 yards from where Mr. Stevenson fell. You could not tell who the men were? No, sir; the shooting was so rapid I thought some stray bullet might come down this way, and kept aside. As soon as I stepped out I saw last man leave. Do you recall the last shot? No, sir; the men were standing over him, and the four men seemed to be bending over toward Mr. Stevenson. The wagon did not come towards you? No, sir; there were as many as fifteen or twenty shots. What other men besides the four men and the shot man? None at all."

Cross-examination: "Could you not recognize any of the men? No, sir; there was so much smoke, etc.; I could not tell who was doing the shooting. You don't pretend to swear that any of these men (the prisoners) fired shot? No, sir.

Evidence of Dr. A. Capehart: "Where do you live? Town of Roxobel, this county; the town is situated at cross-roads; it crosses the road coming from Hertford County at right angles. Do you know where the murder was committed? At the crotch of the road, nearly in front of Peele's store. At what angle was Mr. Peele's store? They came from Kelford there, in the left angle, this side. Did you see any part of what occurred? I did. Tell the jury — where were you when you first saw anything of this occurrence? I was sitting in my home, and my attention was arrested by rapid firing. I looked out (745) of my window and saw a number of men; it's about 125 yards to Peele's store. Four or five men seemed to be engaged in what appeared to be gun shooting. Almost coincidentally with the firing, my eye rested on one of the party falling. I saw three or four men standing around this man, and it appeared that he was being attacked. I saw three flashes of pistols almost at the same time, in different positions and from different directions. These parties who were around the man, nearly prostrate, were firing on him. I knew there were more than one pistol being used, because I could tell from the flashes. I saw three of them scamper off; the fourth remained and fired parting shot. In the meantime the three that ran off were calling to this man, saying, ``Come on, Melton; hurry, hurry.' Some of them got in the wagon and said, ``Drive.' There was a wagon intervening between Peele Bros.' store. (Here the witness referred to the diagram.) Did you see anyone in the road but those four? I think not. Did you recognize anyone at the time? I did not. Did you identify these three men (the prisoners)? I did not. Go on and state what you did. Some one came over and asked me to come out. I went, and he was dying, lying on his back, when I got there. Describe all about it. He was taken from the road and was carried to the store and was shrouded. Four balls entered his body — one on the left side of his neck; one of the balls had hit him in the back and was in the region of the kidneys; the third ball hit about six inches to the left of the spinal column, between the eighth and ninth ribs, and ranged internally; the fourth ball hit him in the shoulder — hit on outer border of shoulder — did not hit blade — passed in diagonally and entered the lung. The ball that hit him in the neck went through lapel of the coat in the collar. What effect would that have on him? All of them would have been (746) necessarily fatal, except possibly the one in the neck. From your examination, in your opinion, what position should they have been in? It would have been necessary for a man to be standing from the side to be hit in the neck; and the ball that hit him in the shoulder, the man must have been standing from the rear of the left side; one in the kidney was found almost vertically down; one between eighth and ninth ribs would have also been fired from the side; was shot from behind every time; none from the front. How many bullets in the clothes? Four in the coat and shirt, and this, I think, made seven. The one shot in lower part of his coat did not enter his body — was taken away. Did you see the ball found in the grocery room? Yes, sir; I found the ball that entered the grocery department from the right of the door; it must have been fired from the left. How far from main store from where you saw the man fall? Twelve or fifteen yards. How many shots, in your estimation, did you hear? Fifteen or twenty."

Cross-examination: "Firing before I looked out of my window, and when I looked out I saw flashes. At least twelve or fifteen shots were fired."

Re-examination: "Who was doing the shooting? I don't know. You did not identify them? I did not. Did you recognize the man that got up in the wagon? I did not."

Evidence B. F. Burket, for the State: "Do you live in Roxobel? Yes, sir. Where were you at the time of the shooting? I was in Mr. Tyler's store. How far? Two hundred yards. How was your attention directed to it? By shooting; I was behind store, cutting wood. What did you see? I saw four or five men together. Could you tell who they were at time? No, sir; I could tell after they ran off; I saw last shot. Did you hear anything? I heard them hollowing, "Come on, come on, come on, Melton.' Who were they? Melton Belfield and the three prisoners — John Belfield, James Stevenson and (747) June Bishop. Were they the ones you saw in the crowd around the deceased man? Yes, sir. Do you know how many shots you heard? I could not tell."

"Cross-examination: "How far were you from the scene of trouble? Two hundred yards from trouble to Mr. Tyler's store. Were you going at the time towards the shooting? No, sir. When you came out, you stopped still? Yes, sir. They were 200 yards and you recognized them? Yes, sir. Do you mean to swear on your oath that you knew these men and could identify them, on your oath? Yes, sir. Did you see either of these men firing pistols? No, sir. Could you not tell there were more than one doing the firing? Smoke was coming from more than one. Could you see the different puffs of smoke? Yes, sir. What was the position of the men? All together. Did you know who they were? No, sir. Did you see these men with pistols? No, sir. Were not these men trying to get Melton Belfield away from there? I don't know."

By the solicitor: "You could not recognize the men in the mix-up? No, sir. You recognized the men, as you stated? Yes, sir."

Evidence of Ellen Belfield, for the defendant: "Just tell what you saw. Well, I know Mr. Stevenson shot Melton Belfield twice. I am his mother. Where had you been that day? Kelford; I went in the store after pepper. Where had you been? Kelford; nobody with me but John. I went in Mr. Peele's store — me and John. I got my pepper. Mr. Stevenson handed it over the counter, and Melton called him a son of a bitch again. Mr. Stevenson said, ``I wasn't going to take that.' Mr. Stevenson came out with his pistol. After I saw the blood running, it frightened me. I saw the pistol in his hand when he came out of the store. I saw Melton and Mr. Stevenson shooting. (748) Who fired the first shot? Mr. Stevenson shot twice before Melton shot at all. Where did Melton get his pistol? I saw him get it from his hip pocket. He pulled it out and shot four times. Mr. Stevenson did not pass on by Melton? No, sir. Was John in the store? Yes, sir. At what time did he come out? All were out there when the shooting commenced; John came out before Melton. Did you see John with a pistol? No, sir. Hear him say anything about the firing? I did not see but two pistols."

Cross-examination: "You the mother of Melton and John? Yes, sir. Were any of these men drinking? I don't know. Where were you? I was in the store when Melton got after Mr. Stevenson about the meat and meal and cursed him; then Melton got out of the store, and Mr. Stevenson came to the door and shot twice, and Melton shot four times. Facing? Yes, sir. After he was on the ground he shot three or four times. You remember about this matter, when it was brought up before the magistrate's trial, and did you say when he made the shot you saw some man on your left? I don't know what happened after that. I left them all in a bunch. What do you mean? I heard two pistols, Mr. Stevenson's and Melton's. You say Mr. Stevenson shot twice and Melton four times. Who was that you saw shooting when you testified before the magistrate, when you turned your back? The reason I turned my back was because I was sick."

Evidence of Louisa Stevenson, for defendant: "Where had you been on day shooting took place? Kelford. Who went there with you? I went there on the wagon. Who was with you? Dora Savage, Melton and myself; June Bishop on cart; stopped at Mr. Peele's to buy some sugar. Who went in there with you? Brother June and sister. June went in there to get some groceries Mr. Peele asked him to get. You were in (749) the store all the time it took place? I was in there before. He (Melton) came in there and asked Mr. Stevenson about some groceries, and Mr. Stevenson told him he had given it to another, and he told Mr. Stevenson Mr. Peele told him to get thirty pounds of meat. Melton told Mr. Peele Mr. Stevenson cursed at him, and that he had to trade at his store, but if that was the way his clerk did he would not trade there any more. He told Mr. Stevenson he would not curse him any more. They did not run on any more before they were mad. He called Mr. Stevenson a poor son of a bitch. Mr. Stevenson told him he would not take that again, and he called Mr. Stevenson a God damned black son of a bitch. Mr. Peele ordered him out, and Mr. Stevenson followed him and said, ``You damned narrow-faced son of a bitch.' He had a pistol by his side, and came out and met Melton face to face. He shot him twice. Was Mr. Stevenson standing still? No, sir; they met and shot, standing. When Mr. Stevenson shot him he was running. He put his hand in his pocket for his pistol, and shot him until he was down and done shooting. When he shot Mr. Stevenson he shot and kept shooting. When Melton and Mr. Stevenson were shooting so, the horses ran off, and a little boy got them, and Melton ran and got up. Where were these men (the prisoners)? They were not around this white man; were around the buggy and wagon. I did not see any of them shoot. Did any of these men say anything to Melton? Jim Stevenson told Melton, ``You done got the meat and meal; come on out.' He would not come out, and they left him alone."

Cross-examination: "How many times did you see Melton and Mr. Stevenson shoot when they were facing one another? Mr. Stevenson shot twice and he shot Melton about the head. When Melton shot Mr. Stevenson, Mr. Stevenson jumped by and shot him when he was passing. Were they the only two men in the wrangle? Only two were shooting. You came up before the magistrate? Yes, sir. You remember saying in that (750) trial that you saw June Bishop near Mr. Stevenson, with his hand in his hip pocket? Yes, sir. Did you hear June Bishop tell Mr. Stevenson he could shoot as many times as Mr. Stevenson could? Yes, sir. What else did you hear June say? He told him (Melton) to use his things, that if he don't he would use his. You did not see June Bishop shoot? No, sir. Did you testify in magistrate's trial that somebody shot from behind you, and that June Bishop was behind you? I told you the ball passed me. Which way was it? Passed by me."

Evidence of Ella Bishop, for defendants: "Tell what you know. You are June Bishop's wife? Yes, sir. Well, go on and state what you know. Melton and Jim Stevenson came on the wagon and asked Mr. Stevenson at the door about some meat and meal. I didn't go in the store. Did these three men (the defendants) come out before Melton and Mr. Stevenson? They came out and heard Melton in there, quarreling, and went back in there to get him out. Then June and John came out. When they were all in the grocery room Melton came up from the shoe shop and said to Mr. Stevenson, ``How much meat is that?' and he (Mr. Stevenson) said, "Twenty-eight pounds,' and that was what brought on the row. Who came out first, these three men or Melton? John and June came out before Melton. Did you see Mr. Stevenson with the pistol? Yes, sir. How far was Melton from him? Mr. Stevenson made three short steps for him before he fired. When Mr. Stevenson shot he ran by Melton, and Melton shot him in the back. I did not see but two pistols. These three men did not have any pistols."

Cross-examination: "Melton had one pistol? Yes, sir. What size shot? Thirty-two or thirty-eight. How many times would Melton's pistol fire? Five times. Mr. Stevenson's pistol was fired four times. Nine shots were fired in Roxobel. I am June Bishop's wife."

(751) Evidence of Isaac Jacob, for defendants: "Tell what you know about this shooting. Were you in it? No, sir. Did you go to Kelford? Yes, sir. Did you get out of the wagon when these men stopped at store? Who went in the store? I don't know. What was the first thing you saw? I saw a man (Mr. Stevenson) come out of the door, and Melton went and met him, and Mr. Stevenson fired off at him twice and Melton fired at him three times. That's all I saw. Did you see these other men? No, sir. Did Mr. Stevenson stand still when Melton was shooting? Yes, sir. When Melton shot him he went towards Melton and passed on by him."

Cross-examination: "Mr. Stevenson shot first and twice? Yes, sir. Did you see the crowd around Mr. Stevenson? No, sir; I saw him when he passed Melton; was behind the wagon, and when Melton shot two times he whirled about. When they were face to face, was it possible for Melton to shoot him in the back? He could not shoot him in the back."

Evidence of Sheriff T. C. Bond, for defendant: "State whether or not you saw wound in Melton Belfield's head when you brought him from Weldon? Yes, sir. I did not examine it. Did it look like it was recently inflicted? Yes, sir."

New trial.