State v. . GarlandState v. . Garland
As to dying declarations of deceased, James Calicutt testified: “Deceased was my son. He lived eight days after he was shot between the eyes. He was conscious all the time. He told me when he came home that he was shot. He said every day he was going to diе; asked me and his mother to pray for him. He said he had been to the festival; started home; went down to the railroad bridge with some others who were going to a wakе at Morehead City (in this county). He got to the bridge and said he would not go further; went into the depot to see what time it was, and some one, he did not know who, asked him to mаke a fire in the stove. He told the man, `I don‘t work here.’ The man said, `You‘ve got to make it, for I am cold.’ This fellow said, `Maybe you are not going to do it.’ Deceasеd said, `No, for I don‘t work here.’ The man said, `God damn you, I‘ll see if I can make you do it,’ grabbed me (deceased) in the collar and shot me.’ Deceased said he fеll behind the door.”
The prisoner, Elisha Garland, testified in his own behalf: “I laid down and dozed off to sleep. When deceased came in the door slammed and woke mе. That was the time Ive Calicutt, deceased, came in. I had not seen him before. Did not know him. I was lying where the partition between the seats was torn out, on my left side, аsleep. Door slammed and I woke. I raised my head and laid down again. Cold chill ran over me. I looked and saw the darkey standing up near the stove with his back to it. I said, `Partner, wake that man and tell him to put some coal in the stove.’ He said, I have nothing to do with waking him.’ I said, `Can‘t you wake him and tell him to make a fire in the stove?’ He turned his hеad to the left and said, `Who are you — a Mitchell County son of a bitch?’ I said, `Don‘t you say that any more,’ I jumped up and said, `You have got that to take
On cross-examination prisoner testified: “I saw no firearms on the deceased. No gun or knife, no rock or stick. He never moved one step towards me. Saw no stick. Made no attempt to strike me. The Governor offered a reward for me. I was found in Mitchell County. I nevеr heard Hollifield say, `Stop, Leish; don‘t do that.’ I came over here to work. Did not bring my trunk or any clothes except what I wore. When I told him he had to take that back, thеn it was I walked up to where he was, at the side of the stove. I was indicted for marrying a woman through a joke. I have been in the U.S. Army; joined in 1902. I gave in my age as 18. 1 was not sworn аs to my age. I was in the army fourteen months. The mock marriage took place in the woods. I was drunk once six or eight years ago.”
The court among other things instructеd the jury, after reciting all the evidence, that if they believed the prisoner‘s evidence and that of his witnesses to be true; he would at least be guilty of manslaughter, To thе foregoing charge the prisoner in apt time excepted and assigned the same as error. This was the only exception as to the charge given.
The jury rendered a verdict of guilty of manslaughter, and
The same author says on page 277: “Hе, therefore, who, in case of a mutual conflict, would excuse himself on the plea of self-defense, must show that before the mortal stroke was given he had declined any further combat and retreated as far as he could with safety, and also that he killed his adversary through mere necessity and. to avoid immediate deаth. If he faileth in either of these circumstances he will incur the penalty of manslaughter.” To the same effect is Lord Hale, who lays it down, “That if A assaults B first, and upon that assault B reassaults A, and that so fiercely that A cannat [cannot] retreat to the wall or other non ultra without danger of his life, and then kills B, this shall not be interpreted to be se defendendo, but to be murder or simрle homicide (manslaughter), according to the circumstances of the case; for, otherwise, we should have all the cases of murder or manslaughter, by way оf interpretation, turned into se defendendo.”
This principle was approved and applied in this State in S. v. Brittain, 89 N.C. 481. There it was held that when a prisoner makes an assault upon A and is reassaulted so fiercely that he cannot retreat without dangеr of his life, and the prisoner kills A, the killing cannot be justified on the ground of self-defense. The
According to the prisoner‘s own version of the occurrence, he was asleep in the waiting-room of the station and was waked up by the slamming оf a door; feeling chilled, he said to the deceased: “Partner, wake that man up and tell him to put some coal in the stove,” and the deceased replied: “I have nothing to do with waking him up.” The prisoner replied, “Can‘t you wake him up and tell him to put some fire in the stove?” The deceased then used most insulting language towards the prisoner, and the prisoner jumped up and said, “You have got to take that back,” and advanced towards the deceased ten or twelve feet, when the deceased made a motion as if to draw a pistol, and the prisoner fired and killed him. On cross-examination the prisoner said, “I saw no firearms on the deceased, no gun, no knife, no rock or stick. He never moved one step towards me, and made no attempt to strike me. . . .”
A fair and correct interpretatiоn of this testimony puts the prisoner in the wrong at the commencement of the difficulty. Although he may have been grievously insulted, yet, in going up to the deceased, having advanced ten or twelve steps and saying, “You‘ve got to take that back,” the prisoner unlawfully brought on the affray, and under the authorities cited the position of self-dеfense is not open to him, unless he can show that he quitted the combat before the mortal blow was given. In telling the jury that on the prisoner‘s own statement, if believed, he was guilty of manslaughter, there was no error, and it is so adjudged.
No error.