State v. Fanning

| N.C. | Feb 15, 1886

Smith, C. J.

(after stating the facts). It will be observed, that the instructions asked, differ from those delivered, in the very material fact, that while the latter are full, and embrace the whole case as developed by the witnesses, the former are partial, presenting only such facts as occurred after the parties emerged from the store-room, ignoring what preceded, and may have been the cause of the difficulty, culminating in the fight afterwards. Most obviously, the case was properly presented to the jury in the charge, and in as favorable a light for the defendant, as he could reasonably ask. The jury were directed to consider all the evidence, and ascertain from it, whether the defendant willingly entered into, or by his words and acts, provoked and brought about the violation of the public peace that ensued. If he did, he is criminally responsible for the consequences, notwithstanding his forbearing conduct when stricken and shot at. The test of guilt in such cases, is thus stated by Battle, J.: “If one person, by such abusive language towards another, as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty, though he may be unable to return the blow..” State v. Perry, 5 Jones, 9.

And this tendency and intention may be indicated by conduct as well as by words.

While the later conduct of the Brittains flagrante bello, was extremely violent, aud out of all apparent proportion to the provocation offered, and that of the defendant was forbearing and defensive, after the parties came out of the store, there was evidence, in the beginning, of an aggressive purpose in the defendant, when, with gun in hand, he followed the Brittains as they entered the store of the father, the sequel of which was seen soon after, in the retreating of one, with face towards the others, his pursuing antagonists. The inference from this, it was for the jury to infer, and they find in accordance with the charge, that the defendant was a wilful participant in the act of violence from which he was the sufferer.

The evidence may be slight, but it was such as authorized the jury, in passing upon it, to arrive at their own conclusion as to the defendant’s guilt. This is their province, and when there is any reasonable evidence to warrant the verdict, it must be allowed to stand, so far as this question is involved.

There is no error, and this will be certified, to the end that the Court below proceed to judgment.

No error. Affirmed.