93 N.C. 493 | N.C. | 1885
The court instructed the jury that if they should believe the evidence the prisoner was guilty of manslaughter. They rendered a verdict of guilty of that offense, and it must be taken that they believed the evidence, and if they did, it is manifest that the prisoner was at least guilty of manslaughter. If it be granted that he and Hines were in jest and rough sport — and this is by no means certain — he was using a dangerous weapon — a loaded pistol, knowing that it was loaded — not only incautiously, but in a most reckless and unlawful manner. He had it pointed at Hines, who fell behind the deceased, saying as he did so, "shoot and be damned," when at once he fired the fatal shot. If he did not intend to kill Hines, and the discharge of the pistol was unintentional, still the killing was manslaughter, because in any view of his conduct he used the dangerous weapon carelessly, recklessly, and unlawfully. It is clear that where one engaged in an unlawful or dangerous sport kills another by accident it is manslaughter. Arch. Cr. Pl., 397; Fost. Cr. Law, 259, 260, 261; 1 Hale Pl. Cr., 472, 473; Ros. Cr. Ev., 687, 688; S. v. Shirley,
The prisoner's counsel proposed to ask the witness "if he regarded theshooting as accidental." Upon objection the court would not allow the question to be put, and this is made a ground of exception.
The question was properly excluded because, first, the opinion of the witness was not competent evidence, and secondly, it was immaterial.
Generally the court or the jury, as the case may be, as the triers of questions and issues involving the ascertainment of facts, reach their conclusions from the facts in evidence before them, and not from the opinions of witnesses. There are well defined exceptions to this general rule, but these do not affect this case and need not be stated here. If, in some possible cases, the opinion of a nonexpert may be competent evidence, as ingeniously contended by the counsel for the prisoner in his very interesting brief, this is clearly not one of them. The facts of the case were plain, clear and distinct, and the witness, by a simple recital of them, put the court and jury in full possession of them and the circumstances attending the homicide, and they were as competent to judge whether or not the shooting was accidental as the witness. There is nothing in the case that warrants a departure from the general (497) rule of law that excludes such evidence.
If the facts testified to were not stated with sufficient fullness of detail, the prisoner might have elicited them by a proper cross-examination of the witness, in which case the jury could have drawn proper inferences from them without the opinion of the witness. There was no necessity for the opinion of the witness in order to give the jury facts they could not get otherwise than by his opinion.
The opinion of the witness was also immaterial. If he had been allowed to say that in his opinion the shooting was accidental, this could not have materially changed the case because the prisoner had used the loaded pistol in an unlawful and reckless manner, and whether the firing was accidental or not made no difference. The law does not tolerate such use of dangerous weapons, and when fatal consequences result from it, the offender cannot be held guiltless; in such case he must answer for the consequences. It would be monstrous and shocking *423 to reason to allow a man to so use a loaded pistol and then take shelter behind the fact that the firing was accidental!
It was insisted on a argument here that the judge invaded the province of the jury in instructing them that "If they believed the testimony of the witness the prisoner was guilty of manslaughter." We do not think so; this contention has not the slightest foundation.
The judge did not intimate in the least degree in terms or by implication that he did or did not believe the evidence to be true, nor did he tell the jury that they should believe it or any part of it; he in effect told them that in any possible view of the evidence (and taking it most favorably for the prisoner), if they believed it to be true, then as a conclusion of law he was guilty of manslaughter. This was unobjectionable in this case.
There was but one witness — there was no conflict of testimony — there was no alternative aspects of it to be submitted. The credit of the witness and the sufficiency of his testimony to produce conviction upon their minds was broadly and without qualification left to the jury. S.v. Walker,
The case of S. v. Dixon,
In our judgment the prisoner has not the slightest ground of complaint at the verdict of the jury or the action of the court. Indeed, it is fortunate for him that he was not convicted of a more serious offense.
There is no error. to the end that judgment be rendered and further proceedings may be had in the action, let this opinion be certified to the Superior Court according to law.
No error. Affirmed.
Cited: S. v. Crane,
