52 S.E. 136 | N.C. | 1905
Prisoner was charged with the murder of one Nichols, a deputy sheriff. Deceased was endeavoring to arrest prisoner, having in his hands a warrant for a misdemeanor. After a verdict of murder in the second degree, followed by a judgment, prisoner appeals, assigning a number of errors in his Honor's rulings. It is not necessary to consider all of the exceptions because if there is no element of self-defense disclosed in the testimony, his Honor correctly instructed the jury that they should find the prisoner guilty of manslaughter at least. *470
There is no exception pointed to the instruction in regard to murder in the second degree. The first exception is directed to the admission of evidence tending to show a confession. The State introduced one G. C. Ray, who testified that he assisted in bringing prisoner to jail. He had been shot by those who arrested him. Did not seem to be suffering very much from the shot. After traveling two or three miles, prisoner began the conversation. Two men were with him in the wagon, three or four others following on horse and in buggy. He was tied but had stated that tying did not hurt him. There was a bed in the wagon and he seemed to be comfortable. No inducements were offered him (605) and no threats made. He did not seem to be excited. Dr. Jordan was called who testified that he examined prisoner after he was arrested and found that his neck was peppered with small shot — seemed to be suffering some pain; was feeble from having been in the woods for some time without nourishment. He was complaining of a dislocated shoulder. Witness set his shoulder and had food provided for him. After the arrest he was kindly treated, no indignities were offered him — seemed to be perfectly sound in mind. Did not seem to be afraid when the guard started with him to jail. The court found that the statement was voluntary. Witness Ray was asked to state what he said. Prisoner objected — objection overruled and prisoner excepted. Witness stated that prisoner asked when Nichols died and what part of his body he was shot. He said that Nichols acted too hastily in following him and that he had acted too hastily in shooting him. That Nichols had lost his life and he would now lose his. He said that he told Nichols that he was not going to be arrested by him; that Nichols said he would arrest him; that he told Nichols if he followed him he would shoot him; that Nichols did follow him and that when he got within five or six feet of him, he turned and shot. Witness asked him who shot first and he said that some of them told him that Nichols shot at him first with a pistol. The exception cannot be sustained. This Court has uniformly refused to permit confessions, obtained by threats made, or inducements held out, to persons under arrest, or surrounded with a number of pursuers or otherwise so situated as to render it doubtful whether they were freely and voluntarily made to be used against a person charged with crime. We have no disposition to depart from or weaken the salutary and humane principle upon which the decisions are based. We fully approve the language of Mr. JusticeReade, in S. v. Dildy,
Prisoner testified: "I was in the woods; dog had treed a squirrel. Nichols and Breez came on down the road. Nichols called to me and I answered. He said come on and go with me; had a warrant; he read it. I said I am not going to do it; he said if I would promise to be at Squire Terry's tomorrow at 3 o'clock, he would go. I refused. He came on me *474
and said to me (with an oath) `if you do not go with me I am going to shoot you." Then I picked up gun and walked off; he shot at me; I ran about fifty yards; he shot again and I threw gun around and shot. I was going away from him; was out there for a squirrel. I ran against a tree when he was after me; knew that deceased was a deputy sheriff." Witness also testified that deceased came to his house that morning with the warrant and that he, prisoner, said that he had done nothing, wanted to see the prosecutrix who had sworn out the warrant and fix it up. That he went into the house to get his shoes and came back; deceased drew his gun on him and cursed him, saying he was going to kill him. Prisoner had no gun when he came out of the house; deceased had a gun. There was other testimony in regard to the conduct and language of the parties at the prisoner's house in the morning, also by witnesses who heard the two shots in the woods. Taking the testimony of the prisoner to be true, and we find nothing in the other testimony more favorable to him, we concur with his Honor that the plea of self-defense cannot be sustained. He admits the homicide with a deadly weapon, thereby taking upon himself the burden of showing that he was acting in self (611) defense. The deceased was acting strictly in the line of his duty in endeavoring to make the arrest and the prisoner was, upon his own showing, avoiding if not resisting arrest. The principle governing the case is thus stated by Pearson, C. J., in State v. Garrett,
No error.
Cited: S. v. Durham,