175 N.C. 723 | N.C. | 1918
Lead Opinion
after stating tbe ease: Tbe defendant contended that be did not kill tbe deceased, but that be was shot by someone else, present at tbe time of tbe killing and who bad a pistol of. smaller calibre than tbe one be carried, and offered evidence, including medical testimony, as to. tbe nature and extent of tbe wound, to prove bis contention. During tbe trial be entered numerous exceptions to tbe rulings of tbe court, as many as sixty-three in all, but- has abandoned twenty-eight of them; and of those that are left there are several which are pointed to tbe same question, and we will, therefore, consider them in groups.' There are some of them so plainly irrelevant or immaterial as not to require separate discussion, and others taken to rulings which, if erroneous, were manifestly harmless, though we do not mean to imply that they were erroneous.
We will consider and discuss those which are vital or substantial, and make only brief reference to some others' which could not have affected tbe result even if there bad been error.
1. Whether the. defendant was cursing or not before the altercation took place was immaterial. It was not contended by the State that he was, and the evidence offered could throw no light upon the question whether — after he had gone to the house and got his pistol, and then' returned to the place of the homicide — he fired his pistol and killed the deceased. There was no evidence that he had cursed up to the time when he was knocked down by Porter, who thought that he had been slighted when a bottle was being passed around. There was nothing to show that, until he was so assaulted, the defendant had acted otherwise than as a peaceable man. His guilt turned upon what he did from that time until the deceased was shot and killed.
2. The exclusion by the court of the question as to what a witness for the State had said during an examination of him and other State witnesses by defendant’s counsel, with the permission of the court, is not reversible error, because it does not appear how the witness would have answered it, or that his anwser would have been favorable to de
3. Tbe questions as to tbe character for violence of Lewis Shew, tbe deceased, and Ernest Porter, were incompetent, because tbe evidence was not circumstantial, nor was there any showing tbat tbe defendant fired tbe pistol in self-defense. S. v. Turpin, 77 N. C., 473; S. v. Exum, 138 N. C., 599; S. v. Banner, 149 N. C., 519; S. v. Blackwell, 162 N. C., 680.
It was said in S. v. Banner, supra: “Tbe exceptions to tbe rule tbat tbe character of tbe deceased cannot be put in evidence are: (1) When there is evidence tending to prove tbat tbe homicide was committed in self-defense; (2) when tbe evidence is wholly circumstantial and tbe character of tbe transaction is in doubt,” citing S. v. Turpin, supra; S. v. Byrd, 121 N. C., 688; S. v. McIver, 125 N. C., 646.
As to whether tbe witness Gr. Miller, who remained in court after an order bad been made excluding witnesses, should be permitted to tes-, tify as to what occurred at tbe coroner’s inquest, was a matter within tbe sound discretion of tbe court, tbe exercise of which is not reviewable here. We so held at tbe last term of this Court in Lee v. Thornton, 174 N. C., 288, where tbe question is fully considered and many authorities cited. In tbat case tbe witness was excluded by tbe court while here tbe State was allowed to examine him. See, also, S. v. Hodges, 142 N. C., 676, and S. v. Lowry, 170 N. C., 730, where it is said, at page 734: “Tbe prisoners also except because, after tbe court bad made an order tbat no witness for tbe State or for tbe prisoners should be allowed in tbe courtroom during tbe trial, a witness for tbe State who remained in tbe courtroom was permitted to testify. Tbe prisoners moved for a nonsuit on tbat ground, and also to set aside tbe verdict, and excepted to the denial of these motions. But it is a
It was contended by the defendant in Lee v. Thornton, supra, that the court could not exclude the witness and thereby deprive him of his constitutional right to have the witness heard by the jury, but in this case the court did what the defendant insisted in that case it was legally right to do. So that, in any view of the ruling, the court in this case was correct.
4. Exceptions as to the reference of the court in its charge to unconsciousness produced by voluntary drunkenness should be disallowed, as this was said merely for the purpose of illustration, and to properly discriminate between unconsciousness caused by the prisoner’s voluntary act, and that not so caused. The judge distinctly charged as to the mental condition which would excuse the act of killing, when he said-: “It would be sufficient for him to show that he was in a state of unconsciousness or insanity |aused by the blow inflicted upon him,” but what the defendant did and said after he had received the blow was so thoroughly inconsistent with such fi state of mind as to render this excuse for the homicidal act inadmissible. S. v. English, 164 N. C., at p. 512; S. v. Murphy, 157 N. C., 614; S. v. Shelton, 164 N. C., 513. The defendant has had the full benefit of the contention that he was unconscious or not in such a state of mind that he could premeditate or deliberate or form any criminal intent, if that was material under the authorities just cited, as he was not tried for murder in the first degree, and was convicted only of manslaughter, where no specific intent is required to constitute the crime as in the higher felony of murder in the first degree. The doctrine is fully explained in S. v. Murphy, supra, and S. v. Shelton, supra.
5. There are many objections to the charge, but none of them, in our opinion, is sound. The court instructed the jury fully as to every phase of the case upon which there was evidence and explained the law fully and clearly. It is a familiar rule that when the State has shown that the defendant killed the deceased with a deadly weapon, the burden shifts to him, and he must satisfy the jury as to any matters of mitigation or excuse, or the jury should convict him of murder in the second degree, as the law in such a case implies the malice. The charge as to the several degrees of homicide and as to the burden of proof was
There was really no element of self-defense. After the defendant went to the house and got his pistol and then returned to the field of combat, he assumed the character of an aggressor as the evidence shows. He could easily have avoided another conflict, and instead of acting in self-defense, the proof tends to show that his motive was one of revenge, or of satisfaction, for the supposed wrong inflicted upon him, the question of cooling time not being presented, as in S. v. Merrick, 171 N. C., 788. The case, therefore, was not within the rule stated as to the nature and extent of the right of self-defense in S. v. Barrett, 132 N. C., 1005; S. v. Blackwell, 162 N. C., 672, at 683; S. v. Johnson, 166 N. C., 392, at 395, cited by the learned counsel of the defendant.
The exceptions to the instructions as to the nature of the wound, whether inflicted by a pistol or long and sharp instrument, as bearing upon the question whether the defendant actually killed the deceased, cannot, be sustained, as these matters were for the jury and were submitted to them under proper instructions. If the judge failed to state the contentions of the defendant properly, his attention should have been directed to the error at the time, so as to afford opportunity for correction. McMillan v. R. R., 172 N. C., 853. Even if there is technical error, courts will not reverse where, it clearly appears that it is not substantial and could not have affected the result. Goins v. Indian Training School, 169 N. C., 737; Elliott v. Smith, 173 N. C., 265.
Some of' the objections in this case are purely technical in character, and, while we do not think any error is made to appear, yet, if it had been, in the respect alleged, we are satisfied that no harm has resulted and that there is nothing to justify a belief that, except for the error, the verdict would have been different from what it is. Goins v. Indian Training School, supra; Elliott v. Smith, supra; Schas v. Assurance Co., 170 N. C., 420. We have given full and careful consideration to the record and the argument of the learned counsel, and have found no reason for disturbing the judgment.
No error.
Concurrence Opinion
concurring: In S. v. Craine, 120 N. C., 601, it was held, approving Smith, C. J., in S. v. Grady, 83 N. C., 683, and Ruffin, G. J., in S. v. Stanton, 23 N. C., 424, that on an appeal from a conviction of a lesser degree of homicide upon an indictment for murder, if the case is sent back for a new trial, “it would be had for the offense of murder in the first degree, as charged in the indictment.” This case has been cited and approved on this point in S. v. Groves, 121 N. C., 568; S. v. Freeman, 122 N. C., 1016; S. v. Matthews, 142 N. C., 622. The same is held in Trono v. U. S., 199 U. S., 521, which “has reviewed the authorities and sustained the principle that a new trial in a capital case goes to the whole case, regardless of the former verdict.” S. v. Matthews, supra.
It may, therefore, be well for the prisoner that he has escaped a new trial, for there is evidence that after leaving the fight he procured the deadly weapon and returned expressing his intention to use it. If the jury should find, and there is evidence to justify it in so finding, that there was sufficient “cooling time,” this would warrant, on another trial, a verdict of murder in the first degree, or at least murder in the second degree. As it is, the conviction is only of manslaughter with a punishment of three years in the State’s Prison.
Possibly the prisoner may not have fully considered the fact that. the result of a new trial might have been less favorable to him.
This was a drunken row in which one man was killed and several were badly injured. It is rarely that a homicide is brought on appeal to this Court in which intoxicating liquor was not the cause of the slaying of a fellow being. The¡ people of the State in 1907 by 44,000 majority decided to put an end to the traffic and numerous statutes have been passed since by the Legislature to cure defects which have been found by the courts, from time to time, to prevent the efficient execution of the law. The Federal Government has since passed a statute conferring full power upon each State to prevent the importation of liquor from other States as well as its manufacture and sale in its own orders, and an amendment to the United States Constitution has passed to apply to the whole Union and is now pending adoption by the requisite number of States.
The enormous profit in the violation of our statutes alone stands in the way of the prevention of crime caused'by this illicit traffic. It rests with the officials of the State and counties by an efficient execution of the law to prevent such lamentable occurrences as that presented in this record.
