114 S.E. 831 | N.C. | 1922
The defendant was convicted of murder in the first degree.
The defendant John A. Bush shot the deceased, Will Cline, on the afternoon of 21 August, 1922, and Cline died at 6:30 the evening of 22 August. The State's evidence tended to show both motive and threats. The motive was a disagreement about the discharge of water from deceased's land upon that of the defendant in such way as to *779 damage the land. There was also some trouble about the deceased encroaching upon the lands of the defendant.
The defendant denied this testimony of the State, and claimed that he had shot Cline (the deceased) as he, Cline, was advancing upon him with a large rock, and that he told him not to advance upon him with it; that he would shoot if he did, and that he shot in self-defense, in protection of his life, or to prevent serious bodily harm from being done him by the deceased.
There are many serious questions involved in the case, but we deem it necessary, in the view we take of it, to consider only two or three of them. There was evidence of murder in the first degree, murder in the second degree, and manslaughter, and there was also evidence that the prisoner killed the deceased in self-defense. The jury returned as their verdict "that the said John A. Bush is guilty of the felony and murder in the manner and form as charged in the bill of indictment," not otherwise finding the degree of murder.
First. The judge charged the jury as follows: "The State contends all the way through that you should convict him of murder in the first degree; that he had a real or fancied grievance against the deceased; that he prepared the weapon, brought it there with a view to kill him, and that he did that from spite and venom by reason of the deceased filling up the ditches and turning water on him. And it is the law, gentlemen, if you find he did that out of spite or revenge, either for a real or fancied wrong, he would be guilty of murder in the first degree; for if one has his rights invaded the law will afford him a peaceable remedy, but if it does not, then he must bear his lot with patience, for any killing done where one undertakes to redress his own grievance is murder per se, if it is done upon that ground." To this instruction of the court to the jury the prisoner duly excepted.
Second. The judge further charged the jury: "If you find that the deceased came to his death at the hands of the defendant, and that the defendant shot him under the contentions made by the State, but he did not premeditate over it, did not deliberate over it, but that he killed him with a deadly weapon, and if he has failed to satisfy you — not by the greater weight of the evidence or beyond a reasonable doubt — but failed to satisfy you that it was necessary for him to kill the deceased in order to save his life or protect himself against great bodily harm, then it would be your duty to return a verdict of guilty of murder in the second degree, unless he has raised in your minds a reasonable doubt about it." And to this instruction of the court to the jury, the prisoner duly excepted.
*780 After stating the case: We are of the opinion that both instructions were defective, and that the error in them was material and prejudicial.Judgment upon the verdict, and the prisoner appealed.
The first of the above instructions was erroneous, because it entirely omitted any reference to the element of premeditation and deliberation, and this was done twice in the instruction, for one may kill another "because of spite, or because of a real or a fancied wrong," without having premeditated or deliberated about it, or having formed any definite purpose or intent to kill his enemy, and yet the instruction would warrant a conviction of murder in the first degree, even though the jury should find only that the prisoner had slain the deceased because of spite or a supposed wrong, but without premeditation or deliberation, and even though, in fact, there was no premeditation or deliberation, or they believed or had found that there was none. The fact that the prisoner killed from spite, or even revenge, does not conclusively establish that he did so after premeditation and deliberation, which is to be found by the jury as a fact, before they can convict of the capital felony, and mere malice is not sufficient. S. v. Ta-cha-na-tah,
But the second of the instructions is subject to two valid objections. The first is, that it requires the prisoner to satisfy the jury "that it was necessary for him to kill the deceased in order to save his own life, or to protect himself against great bodily harm." Whereas, it was not essential that the prisoner should have satisfied the jury of the actual necessity for killing the deceased before his plea of self-defense can avail him. If the prisoner had a reasonable apprehension, based upon the facts and circumstances, as they appeared to him at the time he committed the homicide, that he would be killed or suffer great bodily harm, unless he took the life of the deceased, he could stand upon his right of self-defense, provided he was not in such fault himself as would deprive him of the principle, and this was for the jury to determine under proper instructions from the court, there being evidence that he was not in such default. S. v. Barrett,
In S. v. Matthews,
It is further said in Barrett's case,
If there was an instruction given corresponding with this principle, which has often been approved by this Court, the instruction now being considered was certainly at variance with it, and in such a case the law is well established and well defined that when there are conflicting instructions upon a material point, a new trial must be granted, as the jury are not supposed to be able to determine when the judge states the law correctly or when incorrectly. We must assume, in passing upon the motion for a new trial, that the jury was influenced in coming to a verdict by that portion of the charge which was erroneous. S. v. Barrett, supra;Edwards v. R. R.,
The other objection to the instruction is that, by it, the learned judge virtually excluded from the consideration of the jury the question of manslaughter, and the evidence relating thereto. It will be clearly seen that the judge here submitted only two questions, as to murder in the first degree and murder in the second degree, by charging that if the prisoner did not premeditate or deliberate over it, and had not satisfied the jury that he killed from necessity, they would convict him of murder in the second degree, if he used a deadly weapon, thereby excluding from the consideration of the jury the element of manslaughter, there being some evidence of it.
There was a question raised as to the form of the verdict, but in the view we have taken of the case it is unnecessary to pass upon it, as it may not again be presented to us. We therefore forbear any discussion of it or the other exceptions.
There was error in the respects we have indicated, for which there must be another trial, and it is so ordered.
New trial.