State v. Blackwell

162 N.C. 672 | N.C. | 1913

Lead Opinion

'WalkeR, J.,

after stating the case: The plea in this case was self-defense. The prisoner offered evidence to show that tbe deceased was a violent and dangerous man wben under tbe influence of liquor, and there was evidence tending to show that be bad been drinking just before be was cut witb tbe knife by tbe prisoner. For tbe purpose of testing tbe competency of tbe proposed evidence, we will, therefore, assume that be was under the influence of liquor at tbe time be assaulted .the prisoner witb tbe stick. There was no offer to show that tbe prisoner, at tbe time of tbe altercation, knew of tbe alleged character of •deceased as a violent and dangerous man. Upon this question, tbe law of this State is well settled by numerous decisions, however it may be in other jurisdictions, though we believe that tbe great weight of authority -sustains tbe view of this Court. Tbe general rule prevailing in most of tbe jurisdictions is that such •evidence is not admissible, and in this State such a general rule is well settled, but it is subject to exceptions depending upon tbe peculiar facts and circumstances of each ease. It has been said that these exceptions are now so well defined and established by the current of tbe more recent decisions that they have assumed a specific formula, and have themselves become a general rule subordinate to tbe principal one. S. v. Turpin, 77 N. C., 473. As at present understood and formulated, tbe rule may be thus stated: As a general rule, evidence of tbe character of tbe deceased is not relevant to tbe issue in a trial for homicide, and consequently it is no.t permissible to show bis .general reputation as a dangerous or violent man; but wben there is evidence showing, or tending to show, that tbe prisoner acted in self-defense, under a reasonable apprehension that bis life was in danger, or that be was in danger of great bodily barm, evidence of tbe character of tbe deceased as a violent and dangerous man is admissible, provided tbe prisoner, at tbe time of tbe homicide, knew of such character, or tbe nature of tbe transaction is in doubt. 25 Am. and Eng. Enc. of Law (2 Ed.), p. 281, 5 ibid., pp. 872 and 873, where many cases are collected in tbe note which supports tbe text, and among them are cited S. v. Turpin, supra; S. v. Hensley, 94 N. C., 1022, and S. v. Rollins, 113 N. C., 722. The reason why it is necessary for tbe prisoner to have known of tbe character of tbe deceased as a violent and dangerous man is well stated by Justice Bynum in Turpin's case, supra, at p. 477: “Where one is drawn into combat of this nature by tbe very instinct and constitution of bis being, be is obliged to estimate tbe danger in wbicb be has been placed, and tbe kind and degree of resistance necessary to his defense. To do this he must consider, not only the size and strength of his foe, how he is armed, and his threats, but also his character as a violent and dangerous man. It is sound sense, and we think sound law, that before a jury shall be required to say whether the defendant did anything more than a reasonable man should have done under the circumstances, it should, as far as can, be placed in the defendant’s situation, surrounded with the same appearances of danger, with the same degree of knowledge of the deceased’s probable purpose which the defendant possessed. If tbe prisoner was ignorant of the character of the deceased, then the proof of it would have been inadmissible, because his action could not have been influenced by the dangerous character of a man of which he had no knowledge.” In Hensley's case, at p. 1032, the Court said on this point: “If the prisoner did not have knowledge of such character of the deceased (for violence), then such evidence would not be competent, because it. could not be inferred that he acted upon facts of which he was ignorant.” The present Qhief Justice said in Rollins' case: “The evidence of the homicide was not circumstantial, and though’the plea of self-defense was set up, it did not appear that the prisoner knew the character of the deceased for violence. Evidence to show such character was, therefore, properly excluded.” It is also competent to show the character of the deceased as a violent and dangerous man when the evidence is wholly circumstantial and the character of the encounter is in doubt. The difference in the two kinds of cases is pointed out in S. v. Byrd, 121 N. C., 684: “Evidence of the general character of tbe deceased as a violent and dangerous man is admissible where there is evidence tending to show that the killing may have been done from a principle of self-preservation and, also, where the evidence is wholly circumstantial, and the character of the transaction is in doubt. We think that threats made by the deceased against tbe prisoner come under the same rule. I£ the threats are not communicated to the prisoner, and the character of the' deceased is unknown to him, such evidence is not admissible, when offered only to show self-defense, because facts of which the prisoner had no knowledge could have no effect- upon his mind. S. v. Turpin, supra,; S. v. Hensley, supra; S. v. Rollins, supra. But where the evidence is wholly circumstantial, testimony of the violent character and threats of the deceased, even if unknown to the prisoner, are admissible as tending to show the inherent probabilities of the transaction. S. v. Turpin, supra; S. v. Hensley, supra. In the latter case the syllabus appears to differ from the opinion. While this principle has been doubted in some cases, we think it is correct and its adoption the only way of reconciling apparently conflicting opinions.” See, also, S. v. Gooch, 94 N. C., 987; S. v. Summer, 130 N. C., 718; S. v. Exum, 138 N. C., 600; S. v. Baldwin, 155 N. C., 494; S. v. Price, 158 N. C., 641.

Our reference to S. v. Byrd, and to the language quoted therefrom, must not be taken as an authoritative statement by us now of the rule where the evidence is circumstantial, for in this case the testimony is not of that character, as the details of the encounter were given in evidence by eye-witnesses, who testified substantially to the same facts. The present case has not been brought within either branch of the rule, for although there was evidence of self-defense, the character of the deceased for violence, if established, was not known to the prisoner, nor was the evidence circumstantial, nor was the nature-of the transaction sufficiently in doubt. In no view, therefore, was it relevant to show the character of the deceased.

The instructions requested by the defendant, and the subjects of his second and third assignments of error, were properly refused. We have Said that the expression, “if the, jury believe the evidence,” preliminary to a direction as to how they should find upon such belief, is “inexact” and should be “eschewed” by the judges, though when used it is not ground for a new trial, unless clearly prejudicial. Sossaman v. Cruse, 133 N. C., 470; Merrell v. Dudley, 139 N. C., 57. But a judge should not be required to use that form of expression, especially if it will mislead the jury as to tbeir province in passing upon the facts or restrict them in the exercise of tbeir proper function as triers of tbe facts. Tbe prayers were too strongly worded, and tbey are further objectionable as leaving tbe question of reasonable apprehension as to tbe prisoner’s danger entirely too much to him, when it is one for tbe jury to decide, though in view of tbe facts, circumstances, and surroundings as tbey appeared to tbe prisoner at tbe time of tbe homicide. S. v. Turpin, supra; S. v. Barrett, 132 N. C., 1005. We thus stated tbe principle in Barrett’s case: “Tbe reasonableness of bis apprehension must always be for tbe jury, and not tbe defendant, to pass upon; but tbe jury must form tbeir conclusion from the facts and circumstances as tbey appeared to tbe defendant at tbe time be committed tbe alleged criminal act. If bis adversary does anything which is calculated to excite in bis mind, while in tbe exercise of ordinary firmness, a reasonable apprehension that be is about to assail him and take bis life, or to inflict great bodily barm, it would seem that tbe law should permit him to act in obedience to tbe natural impulse of self-preservation and to defend himself against what be supposes to be a threatened attack, even though it may turn out afterwards that be was misled; provided, always, as we have said, the jury find that bis apprehension was a reasonable one and that be acted with ordinary firmness.” Tbe prisoner must not only have thought that be was in danger of bis life or of receiving great bodily barm, but bis apprehension must be based on reasonable grounds, to be found by tbe jury in the manner we have stated, and not by tbe prisoner. S. v. Cox, 153 N. C., 638; S. v. Kimbrell, 151 N. C., 702; S. v. Dixon, 75 N. C., 275. Tbe law is sufficiently lenient to him when it requires that be should be judged by tbe facts and circumstances as tbey reasonably appeared to him. S. v. Nash, 88 N. C., 621; S. v. Gray, ante, 608. But tbe principle of law attempted to be invoked in behalf of tbe prisoner was fully and correctly stated to tbe jury by tbe court in its charge. Tbe prayer for instruction as to murder in the second degree, contained in the fifth assignment of error, is erroneous in itself, in view of the facts; but if it had been correct, the error in refusing it would have been harmless, as the jury did not convict of murder in the second degree, but of manslaughter. S. v. Yates, 155 N. C., 450; S. v. Watkins, 159 N. C., 480.

The fourth assignment of error is without merit, as there is no substantial difference between the statement of counsel and the charge of the court in respect to the matter. If, by inadvertence, the judge states any contention of counsel erroneously, it should be called to his attention, so that the mistake can be corrected. Jeffress v. R. R., 158 N. C., at p. 223; S. v. Cox, supra.

In this case, the judge charged the jury clearly and exhaustively upon every phase ’of the evidence. He was not bound to adopt the language of the defendant’s prayers for instruction, if they had been correct, but could select his own words, provided they correctly expressed the legal principles applicable to the facts. He properly placed the burden upon, the defendant'to satisfy the jury of every matter of excuse or mitigation, the killing with a deadly weapon being admitted. S. v. Quick, 150 N. C., 820; S. v. Yates, supra; S. v. Rowe, 155 N. C., 436; S. v. Simonds, 154 N. C., 197; S. v. Bradley, 161 N. C., 290. If the jury have returned a verdict contrary to the very truth of the matter, the only remedy was by motion in the court below to set it aside. We have no jurisdiction to reverse it, or to modify it, for that reason. The jury evidently found that the defendant did not act in self-defense, as explained by the court, when he struck the fatal .blow, and therefore convicted him of manslaughter, upon the ground of legal provocation and the sudden heat of passion.

A careful review of the record and case on appeal has disclosed no error in the trial of the ease.

No error.

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Concurrence Opinion

Hoke, J.,

concurring: I concur in the disposition made of this appeal on the ground that all the eye-witnesses having been examined, there is substantial agreement as to the objective facts of the occurrence, and their evidence, to my mind, presents an instance where the character of the deceased was only relevant as bearing on the reasonableness of the prisoner’s apprehension. In such case, evidence as to the character of the deceased as a violent, dangerous man, or threats of injury towards the prisoner, can only be received when such character is known or the threats have been communicated. But I do not assent to the proposition in so far as embodied in the principal opinion, and expressed in several of the authorities cited, that the testimony as to the character of the deceased or of previous threats towards the prisoner, when not made known to him, is only competent in eases which rest upon circumstantial evidence. On the contrary, I am clearly of the opinion that when there is evidence which tends to make out a ease of self-defense, from the testimony of eye-witnesses, and the character of the-transaction is in doubt, evidence of the character of the deceased as' a violent, dangerous man, or of threats by him, importing serious menace to the prisoner, are both competent when it may tend to throw light on the occurrence and reveal the same in its true nature. To illustrate: if A and B have an altercation, and A kills B, on the trial, prisoner offers the evidence of eyewitnesses tending to show a homicide in his necessary self-defense, and that B was in the act of committing a felonious assault with a deadly weapon and with intent to kill; evidence from eye-witnesses, on the part of the State, that no such assault was being made nor any demonstration with a deadly weapon. In such case, testimony that the deceased was a desperado, one who was in the habit of using deadly weapons, or that, a short' time before, he had threatened to kill A, would be evidence of the first importance tending to establish the facts of the occurrence.

Speaking to this question, in S. v. Baldwin, 155 N. C., at page 496, the writer, in a per curiam opinion, said: “It was insisted, further, that his Honor made an erroneous ruling in excluding” evidence of certain uncommunicated threats of the deceased uttered shortly before the homicide, tending to show animosity towards the prisoner and a purpose to do him serious bodily harm. It is now generally recognized that in trials for homicide uncommunicated threats are admissible (1) where they tend to corroborate threats which have been communicated to the prisoner; (2) where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done' from a principle of self-preservation, or the evidence is wholly circumstantial and the character of ,the transaction is in doubt. Turfin’s case, 77 N. C., 473; S. v. McIver, 125 N. C., 645; Hornigan and Thompson Self-defense, p. 927; Stokes’ case, 53 N. Y.; Holler v. State, Ind., 57; Cornelius v. Commonwealth, 54 Ky., 539. In the present case, while there was evidence on the part of the State tending to show that the prisoner fought wrongfully and killed without necessity, there is testimony on his part tending to show a homicide in his necessary self-defense, and the proposed evidence, tending as it did to throw light upon the occurrence, should have been received.”

I take this to be the correct and permissible deduction from Turpin’s case, supra, and the position, in my judgment, is supported by the great weight of authority, many of the decisions being cited in the well prepared brief of the prisoner’s counsel, notably Wiggins v. The People, 93 U. S., 567; S. v. Thompson, 94 Oregon, 46; S. v. Kelly, 194 Mo., 300; S. v. Keener, 18 Ga., 194; Williams v. State, 48 Amer. Rep. (Texas), 239.