20 S.E. 538 | N.C. | 1894
The principal question raised by the appeal is whether one who stands facing another, or walks up in front of him, and, drawing a pistol from his hip-pocket, shoots him without a word of warning, brings himself within the offense defined by the act of 1887, ch. 32, sec. 1. That statute provides that "any person who shall maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise in a secret manner, with intent to kill such other person, shall be guilty of a felony," etc. It was contended for the prosecution, and so the learned judge who tried the case below seems to have thought, that every assault made upon another with a deadly weapon and in pursuance of a preconceived purpose to shoot, falls within the language of the statute, unless the assailant, by word or act, gives opportunity of preparing for defense, or warning of his intention to the person assailed. The material facts in S. v. Jennings,
It was not, in our opinion, the purpose of the Legislature to enact a law so sweeping in its operation. While the fact that the accused makes no apparent attempt to conceal his identity from others does not place him beyond the pale of guilt, yet on the other hand the assault cannot be said to have been made "in a secret manner," except where (756) the person assaulted is unconscious of the presence as well as of the purpose of his adversary till the striking or shooting begins. The law permits juries to consider the fact that one who fights on unequal terms, and without warning uses a deadly weapon, when death ensues, and when death does not ensue, the courts consider such circumstances in aggravation in sentencing upon conviction for a common assault. It is not necessary to discuss the question whether, when the statute makes the "intent to kill" an essential element of the offense, the intent to shoot will be held synonymous with the intent to kill. His Honor told the jury that, if the defendant had formed the purpose, not of killing, but "of shooting the said Cowan," and came upon him suddenly and concealed from him his purpose to assault him, and gave him no notice of his purpose, and made the assault so suddenly that there was no opportunity to guard against it, the assault was committed in a secret manner. In prosecutions for murder it is established as a rule in this Court that the use of a deadly weapon raises a presumption of malice (S. v. Fuller,
New trial.
Cited: S. v. Gunter,
(757)