State v. . Ballard

Jan 27, 1926
Versions:191 N.C. 122
131 S.E. 370
1926 N.C. LEXIS 20
Stacy, C. J.,

after stating tbe case: There was ample evidence offered on tbe bearing to warrant tbe jury in returning a verdict against tbe prisoner, as it did, of murder in tbe first degree. S. v. Benson, 183 N. C., 795. And from a careful examination of tbe entire record, we are pf opinion that appellant has no just grounds for complaint. His *124 exceptions must all be resolved in favor of the validity of the trial. There are only two which merit any discussion.

The first exception is addressed to the admission of certain evidence tending to show malice on the part of the prisoner towards the deceased. Herbert Raby was allowed to testify, over objection, that he went out with Vernon Eason to Noah Ballard’s house on the night before the killing. Jim Ballard was there and in talking to Vernon Eason, the witness heard him say: “You are white and I am black. You are nothing but a meat man, just like me. It is no more for you to die than it is for me.” And he added: “I’ll get you.” There was some argument between the officer and the defendant, but the witness did not hear it all.

It is contended on behalf of the prisoner that this evidence was incompetent and should have been excluded, because the witness did not hear all that was said by the officer and the defendant, and for the further reason that there is nothing to connect it with the homicide. The exception is without merit. The evidence is clearly competent as tending to show malice on the part of the prisoner towards the deceased. It contains a threat against the deceased. S. v. Merrick, 172 N. C., p. 873.

In S. v. Norton, 82 N. C., 629, it was said that in a prosecution for assault and battery, where the intent with which the act was done was not an essential element of the offense, declarations of the defendant, threatening the prosecutor, made two weeks prior to the assault, were inadmissible, because they in no way helped to explain or elucidate the transaction under investigation. But in writing the opinion in that case, Ashe, J., took occasion to observe: “If the defendant had been indicted for murder, for an assault with intent to kill, for a conspiracy or forgery, or any other offense where the scienter or the quo animo constitutes a necessary part of the crime charged, such acts and declarations of the prisoner as tend-to prove such knowledge or intent are admissible, notwithstanding they may in law constitute a distinct crime. Dunn v. State, 2 Ark., 229; Thorp v. State, 15 Ala., 749.”

And in S. v. Exum, 138 N. C., 605, where the defendant was charged with murder, a prosecution similar to the one at bar, it was held that evidence tending to show previous threats on the part of the prisoner against the deceased, was “undoubtedly competent.” To like effect are the decisions in S. v. Wilson, 158 N. C., 599, S. v. McKay, 150 N. C., 813, S. v. Stratford, 149 N. C., 483, S. v. Rose, 129 N. C., 575, S. v. Hunt, 128 N. C., 589, S. v. Moore, 104 N. C., 743, and many others too numerous to be cited.

The prisoner’s second exception is addressed to certain remarks of one of the counsel for the State, who, in arguing the case before the jury, referred to the prisoner as a human hyena, and used language in substance as follows: “Remember, gentlemen, you are trying the defendant *125 for bis life, for taking tbe life of one of your county’s young men, a brave and fearless officer of tbe law, a man of bigb character and standing, wbo bas been brutally murdered by tbe defendant wbo sits over there. He is a human hyena and should be treated as such.”

Tbe prisoner objected, and tbe court at once corrected tbe counsel wbo was speaking and directed that tbe statement be stricken out. Counsel apologized and then proceeded with bis argument. His Honor, also, added tbe following caution when be came to charge tbe jury: “Tbe fact that Jim Ballard is a negro hasn’t anything to do with tbe case. He bas as much right to a fair trial as you would have if you were charged with a like felony. He bas tbe same right to have you consider bis evidence and to give him each and every advantage you would give to a white man; and if you do not do it this trial will be a mere mockery, nothing more or less.”

Tbe characterization of tbe prisoner as a human hyena was, of course, improper, but tbe court was swift to interfere in bis behalf. Not only did be stop counsel at tbe time, but be also endeavored to remove any baneful effects from tbe minds of tbe jurors when be came to deliver bis charge. We think be did all that tbe law requires. See S. v. Tucker, 190 N. C., 708, where tbe subject was fully discussed at tbe present term.

After a careful and searching examination of tbe record, we are unable to discover any action or ruling of tbe trial court which was prejudicial to tbe prisoner. Tbe verdict and judgment must be upheld.

No error.