30 N.C. 344 | N.C. | 1848
Lead Opinion
Although it was not contended on the trial, that the offence of the prisoner did not amount to murder, if the account given by the widow of the deceased was true, yet, as the case comes here, that question is one of those to be considered by this Court. Upon it, we must say, that it admits of no doubt, that it was murder, according to her account. She stated, that, after some angry words on each side, the prisoner with his knife drawn approached the deceased, thrusting at him, and that the deceased then raised the chair, and pitched it over the others head, but without striking or intending to strike him, and that, in making that effort, he staggered from drunkenness and fell, and that then the prisoner, who, though he had been drinking, was not drunk, rushed on the deceased, while down, and stabbed him several times; and, moreover, that she assisted her husband to rise, and, that, after he had done so, the prisoner pursued him, and again stabbed him in the back once or twice. This represents the prisoner, in every respect as
The character of the killing does not seem to be materially varied, in a legal sense, by the testimony of the sons. One of them said expressly, that the prisoner was advancing on the deceased when he raised the chair. The same is to be implied from the testimony of the other, “ that he did not see the prisoner have a knife in his hand, when he first came towards the deceased, but saw him draw it, at or about the time his father raised the chair.” Then, it must be taken, that the prisoner, upon angry words,, was advancing in a hostile manner upon the deceased, and drew his knife as he went, and that, at or about that instant, the deceased raised and pitched a light chair over the prisoner’s head, without intending to strike him, but only in order to cheek the attack, and although it was “ manifest” to the prisoner, that the deceased did not intend to strike him, and in fact he had not done so, that the prisoner continued to press on the other, who had reeled and fallen, and killed him by repeated stabs before and behind, the deceased being all the time down and unresisting, or retreating. If necessary, it might well be considered, whether a killing in this ferocious manner, a man in the condition of the deceased, would not be murder, though there had been a slight blow with a chair, given by him when so drunk and weak as not to be able to stand up, to another then advancing for the purpose of combat with a deadly weapon drawn before receiving the blow. But we do not,
It is of great importance to the due despatch of business, and the correct decision of controversies, that no evidence should be heard which is foreign to the issue; and this rule is no less applicable and useful in criminal, than in civil, cases. Upon this principle, and because, if; received, the evidence of the general character and hab-; its of the deceased, as to temper and violence, could not1 rationally and legally affect the degree of homicide in • this case, but might mislead the jury, the Court holds, j that it was properly excluded.
The law no more allows a man of bad temper, and habits of violence to be killed by another, whom he is not assaulting, than it does the most peaceable and quiet of men. But it is said, that it ought to be heard as some evidence-— to weigh with the jury — that the deceased,being habitually a brawler and breaker of the peace, was, probably, in this particular controversy, the aggressor, or, at least, that the slayer might for that reason have thought himself in danger from him, and acted on that apprehension. Now no such principle or decision is found, as that a person may kill another, because from his former course of life, as a fighter, he apprehends an assault from him, though it be, even
Upon the other point of evidence, the opinion of the Court has been given in the case of Edwards v. Sullivan during this term; and the reasons are there so fully stated as to leave nothing to be added.
There is therefore no ground for a venire de novo. But, upon the supposition that he might fail on that part of the case, the counsel for the prisoner here also moved in arrest of judgment.
The first reason assigned is, upon the authority of Twitty’s case, 2 Hawks 248, because the affidavit of the prisoner, on which he moved and the Court ordered the removal of the trial to Johnston, is not set forth in the trail-
A second reason in arrest is, that the record does not show a venirefacias, either original or'special, to the term of Johnston Court, at which the prisoner was tried, but merely sets forth a jury of twelve freeholders, who tried and convicted the prisoner. That is sufficient. It is according to the settled course, to which no exception is remembered. It is the practice in making up the record to set forth the venire, at the term at which the indictment was found, in order, we suppose, to show that the grand-jury was properly constituted. That practice it is well enough to continue, though it does not seem essential, as it has been often decided, that objection can be taken to the competence of grand-jurors only before plea in chief, or, at all events, before trial. Therefore after conviction it must suffice, if the record show a grand jury of the requisite number of good and lawful men, upon whose oaths the accusation was presented, without designating the-mode of their selection. But in no instance has the ce-nire been set out in the record, in order to show a proper constitution of the petit jury. If it happen, that the trial is at the term at which the indictment is found, then the venire appears. But even then, if one or more talesmen be of the jury, it will not appear, how he or they were
It must therefore be certified to the -Superior Court, that there is no error in the judgment.
Per, Cubjam;. Ordered to be certified accordingly.
Dissenting Opinion
dissentiente. I cannot concur with the majority of the Court, upon the question of the admissibility of the testimony offered by the prisoner, to show the character of the deceased for violenee. It is with unaffected diffidence that I place my opinion in opposition to theirs, but, in doing so, I am consoled by the reflection, so often felt and expressed by Judges placed in a similar situation, that the conclusion to which I have been led, however erroneous, will at least be harmless. A homicide committed, otherwise than by virture of a legal precept, must be either murder, manslaughter, or excusable homicide. With malice it is murder, and even in the absence of express malice, it is still murder,unless the prisoner can show from the attendant circumstances, that it was prompted by legal provocation, committed by accident, or rendered necessary in self defence. Every fact and circumstance, which surround the main fact of the homicide, become therefore matters of vital importance, and ought to be admitted in evidence, when they can throw the least light upon it. It seems to me, that the character of the deceased for violence is one of those attendant circumstances, which will always have some, and often an important, bearing upon that which must necessarily be the subject of investigation, that is, what were the motives which impelled the slayer to act ? Take first the case, where the prisoner defends, upon the ground, that he killed his assailant in his necessary self protection. To sustain his de-fence, he must show to the satisfaction of the jury he was assailed and that he had retreated, as far he could with safety to his own life, before giving the mortal stroke, or that the violence of the assault was such that retreat was impracticable. Is it not manifest, that his apparent danger would depend much upon the character of the assailant for mild and amiable temper or for violent and ungovernable passion ? With an assailant of the former character, he would have little to fear under circumstan
If I have been successful in showing that the testimony of the violent character of the deceased ought to be admitted for the prisoner, when he defends upon the ground of killing in self-protection, the same process of reasoning will lead to the conclusion, though in a less striking
Upon the whole, I am of opinion, that testimony of the character of the deceased for violence may be offered by the prisoner in all cases, where the enquiry is, whether he acted from malice or upon legal provocation or excuse.
Per Curtam. Ordered to be certified to the Court below that there is no error.
Lead Opinion
The prisoner was indicted in Sampson County for the murder of Alfred Flowers, and, after plea of not guilty, on his motion and affidavit, the trial was removed to Cumberland. He was there tried and convicted, but, upon an appeal to this Court, the judgment was reversed, and a venire denovo awarded.
On the trial the widow of the deceased gave evidence for the State, in substance and almost literally, the same as that (345) given by her on the former trial, as stated in the report of the case in this Court.
On the part of the prisoner, Robert Flowers was examined as a witness. He was a son of the deceased, and was fifteen or sixteen years old at the time of the homicide; and he stated: That he was not at home until late in the day on which the homicide was committed; that when he went into the house he saw the prisoner sitting on a table with a gun in his hand, and that he requested the prisoner to give it to him, and he immediately complied; that he went out of doors, and when he came back he found the prisoner lying on the bed, and that his father sent him to draw some liquor, and when he returned he found his father sitting on a chair near the door; that some angry words passed between his father and the prisoner, and that the latter was standing near the middle of the room and cursed the *253 liquor; that his father rose up and took a light chair in his hand and pitched it over the head of the prisoner without touching him, and, as the witness believed, without intending to strike the prisoner; that in doing so his father staggered and fell, when the prisoner rushed upon him instantly and stabbed him; that he did not see the prisoner have a knife in his hand when he first came towards his father, but he saw the prisoner draw it from his pocket at or about the time his father raised the chair; that immediately after his father was stabbed, he got up and went towards the door, and the prisoner followed him, and stabbed him in the back, and his father then went to the bed, laid down, and in a few minutes died; that he did not see his mother assist his father to get up, or to get to the bed, and that he thought, if it had been so, that he would have seen it; that after his father was dead he went out of the house and saw the prisoner at the gate, and asked him "why he had killed his father," to which the prisoner replied, "that if he did not clear out he would send him off with a cut throat."
The case further states that the prisoner then examined (346) as a witness John Flowers, another son of the deceased, a little younger than his brother Robert, and that he testified to the same facts, except that he said the prisoner was advancing on his father when he raised the chair.
The counsel for the prisoner then offered to prove by a witness who had formerly lived with the deceased, that his general character was that of a violent, overbearing, and quarrelsome man, and that such were his domestic habits. On objection made on the part of the State, the court rejected the evidence.
On the part of the prisoner a witness named Cobb was examined, and stated that he was one of the jury at the coroner's inquest over the body of Flowers, and that Mrs. Flowers swore on that occasion that she was not in the house when the fatal rencounter took place, but that she became alarmed and had left the house before it happened.
On cross-examination he was asked whether he had not told two persons, named Hicks and Lane, that Mrs. Flowers swore before the jury of inquest that she was in the house and saw the transaction; and he denied that he ever made such a statement to them or either of them. On the part of the State Hicks and Lane were afterwards called to prove that Cobb did state to them that Mrs. Flowers swore before the jury that she was in the house and witnessed the rencounter. This testimony was objected to by the prisoner's counsel, but received by the court. *254
The counsel for the prisoner insisted before the jury that Mrs. Flowers was not entitled to credit; and that, taking the case on the testimony of the two sons, there was such a provocation as mitigated the killing to manslaughter.
The presiding judge charged the jury that, if Mrs. Flowers was to be believed, the prisoner was guilty of murder; but if they did not believe her, then they would look to the testimony of Robert and John Flowers in order to ascertain the (347) degree of homicide; and in relation to their evidence, the court stated to the jury that if the deceased pitched the chair over the head of the prisoner without intending to strike him, and that was manifest to the prisoner, there was no such legal provocation as would mitigate the killing to manslaughter, but the prisoner would, in that view of the case, also, be guilty of murder.
The jury convicted the prisoner of murder, and his counsel moved for avenire de novo because of the rejection of the evidence offered by him and of the admission of that of Hicks and Lane to contradict Cobb, and for misdirection. The court refused the motion, and, after sentence of death the prisoner appealed. Although it was not contended on the trial that the offense of the prisoner did not amount to murder, if the account given by the widow of the deceased was true, yet, as the case comes here, that question is one of those to be considered by this Court. Upon it we must say that it admits of no doubt that it was murder, according to her account. She stated that after some angry words on each side the prisoner, with his knife drawn, approached the deceased, thrusting at him, and that the deceased then raised the chair and pitched it over the other's head, but without striking or intending to strike him, and that in making that effort he staggered from drunkenness and fell, and that then the prisoner, who, though he had been drinking, was not drunk, rushed on the deceased, while down, and stabbed him several times; and, moreover, that she assisted her husband to rise, and that, after he had done so, the prisoner pursued him and again stabbed him in the back once or twice. This represents the prisoner, in every respect, as (348) the aggressor, and grossly so, intending, and in the act of making on the deceased, a deadly assault with a drawn knife, as the beginning of the affray, and executing that *255 intention (without receiving a blow from the deceased or an attempt to give one) by stabbing the man to death, while he was helpless on the floor, or, after rising, while retreating. Thus represented, there is nothing in the transaction to extenuate the killing from murder of a very dark hue, perpetrated in a cruel and diabolical fury.
The character of the killing does not seem to be materially varied, in a legal sense, by the testimony of the sons. One of them said expressly that the prisoner was advancing on the deceased when he raised the chair. The same is to be implied from the testimony of the other, "that he did not see the prisoner have a knife in his hand when he first came towards the deceased, but saw him draw it at or about the time his father raised the chair." Then, it must be taken that the prisoner, upon angry words, was advancing in a hostile manner upon the deceased, and drew his knife as he went, and that, at or about that instant, the deceased raised and pitched a light chair over the prisoner's head, without intending to strike him, but only in order to check the attack, and although it was "manifest" to the prisoner that the deceased did not intend to strike him, and in fact he had not done so, that the prisoner continued to press on the other, who had reeled and fallen, and killed him by repeated stabs before and behind, the deceased being all the time down and unresisting, or retreating. If necessary, it might well be considered whether a killing in this ferocious manner a man in the condition of the deceased would not be murder, though there had been a slight blow with a chair, given by him when so drunk and weak as not to be able to stand up, to another then advancing for the purpose of combat with a deadly weapon drawn before receiving the blow. But we do not pursue that view of the subject, because, in fact, no blow was given (349) to the prisoner, nor any intended; and, therefore, there could be no provocation to palliate the killing from murder, since, from a reasonable regard for the security of human life, it has been long and perfectly settled that no words or gestures, nor anything less than the indignity to the person of a battery, or an assault at the least, will extenuate a killing to manslaughter. To constitute an assault there must be an attempt or offer to strike by one within striking distance. And here both the witnesses and the jury concur in saying there was no intention to strike, and that it was clear and evident to the prisoner that there was not. The Court is, therefore, of opinion that there was in the instructions to the jury no error to the prejudice of the prisoner. *256
It is of great importance to the due dispatch of business and the correct decision of controversies that no evidence should be heard which is foreign to the issue; and this rule is no less applicable and useful in criminal than in civil cases. Upon, this principle, and because, if received, the evidence of the general character and habits of the deceased as to temper and violence could not rationally and legally affect the degree of homicide in this case, but might mislead the jury, the Court holds that it was properly excluded.
The law no more allows a man of bad temper and habits of violence to be killed by another, whom he is not assaulting, than it does the most peaceable and quiet of men. But it is said that it ought to be heard as some evidence — to weigh with the jury — that the deceased, being habitually a brawler and breaker of the peace, was, probably, in this particular controversy, the aggressor, or, at least, that the slayer might for that reason have thought himself in danger from him, and acted on that apprehension. Now, no such principle or decision is found as that a person may kill another because from his former course of life, as a fighter, he apprehends an assault from him, (350) though it be even a violent one. A person may, indeed, receive such sure information of the intention of another to attack his life upon sight as to cause him fully to believe it; and, in a moral point of view, he may in such a case be excused for getting the advantage on a favorable opportunity and killing first, or even for seeking private means of killing the other, in order, as he thinks, to save his own life. The pardoning power would, doubtless, be strongly moved by those palliating considerations to stay the punishment annexed by the law to the offense. But it is clear that the legal guilt would be that of murder, because there was not at the time a pressing necessity to kill, arising out of an assault and immediate danger to the person killing, nor any accompanying provocation to arouse the passions and acted on before the passions had cooling time. It would be murder, because the killing would be deliberate; and we know of no deliberate killing that is not murder, unless it be commanded by the law or justified by the urgent necessity of self-defense, when the party is in impending peril of the loss of life or great bodily harm from an actual and unavoidable combat. It is too much to stake the life of one man upon the fears of another of danger from him, merely upon his character for turbulence, and when he is making no assault. Such would be the case here if the evidence had been received, for the prisoner's own witnesses proved that there was no assault on him. It is the fact, and not the fear of an assault, that extenuates the *257
killing, upon the supposition that it instantly rouses the resentment to an uncontrollable pitch. It is possible, when the case is one of circumstantial evidence and there is no direct proof of the quarrel and combat, that evidence of the character of the deceased might be mercifully left to the jury in aid of their inquiries into the origin and progress of the conflict in which the prisoner took the other's life. It was allowed, and on that principle, in S. v. Tackett,
Upon the other point of evidence the opinion of the Court has been given in Edwards v. Sullivan, ante, 302; and the reasons are there so fully stated as to leave nothing to be added.
There is, therefore, no ground for a venire de novo. But, upon the supposition that he might fail on that part of the case, the counsel for the prisoner here also moved in arrest of judgment.
The first reason assigned is, upon the authority of S. v.Twitty,
A second reason in arrest is that the record does not show a venirefacias, either original or special, to the term of Johnston Court, at which the prisoner was tried, but merely sets forth a jury of twelve freeholders, who tried and convicted the prisoner. That is sufficient. It is according to the settled course, to which *259
no exception is remembered. It is the practice in making up the record to set forth the venire at the term at which the indictment was found, in order, we suppose, to show that the grand jury was properly constituted. That practice it is well enough to continue, though it does not seem essential, as it has been often decided that objection can be taken to the competence of grand jurors only before plea in chief, or, at all events, before trial. Therefore, after conviction it must suffice if the record show a grand jury of the requisite number of good and lawful men, upon whose oaths the accusation was presented, without designating the mode of their selection. But in no instance has the venire been set out in the record in order to show a proper constitution of the petit jury. If it happen that the trial is at the term at which the indictment is found, then the venire appears. But even then, if one or more talesmen be of the jury, it will not appear how he or they were selected; and when the trial is at a subsequent term, no venire for that term ever appears in the record, but only that a jury composed (354) of twelve certain good and lawful men upon their oaths found the prisoner guilty. The reason is that in our law a venire is not issued for each case, either originally or to supply a defect of jurors. The statute directs a general venire for not less than thirty nor more than thirty-six freeholders, to attend the court during the whole term or until discharged; and, further, in order that there may be no defect of jurors, that the sheriff shall summon, from day to day, of the by standers, other jurors, being freeholders, to serve on the petit jury during that day, "for the trial of all cases," and not any particular one. In respect to talesmen, then, there is no venire, but any freeholder in court is competent and may be called in (S. v. Lamon,
PER CURIAM. No error. *260