State v. . JohnsonState v. . Johnson
It appears in evidence that defendant, with his wife and little son, drove out to a trаct of land belonging to him, to gather wood and straw. In the wagon he carried an unlоaded shotgun. Defendant *723 met bis brother, who bad an axe in bis bands, apparently drawn on defendant, wbo went to bis wagon and took out tbe shotgun. There was an altercаtion, in which defendant struck tbe deceased, John Henry Johnson, on tbe bead with tbe gun bаrrel, from which blow be died shortly after.
1. Tbe motion of defendant to direct a verdict for defendant was properly overruled.
Tbe defendant admitted that be bad an altercation with deceased, in which be bit deceased in the bead with tbe barrel of a double-barreled shotgun (unquestionably a deadly weapon, even whеn used in that manner) and killed him.
It is true there is much evidence upon part of defendant that deceased was attacking him withji drawn axe, and that be struck in self-defense, but it is wеll settled in this State that when tbe killing with a deadly weapon is proven or admitted, tbe burden of proof shifts to tbe defendant, and be must justify tbe homicide by satisfying tbe jury as to any matters of mitigation or excuse. If be fails to so satisfy tbe jury, they should convict him of murder in second degree, as tbe law implies malice from the use of tbe deadly weapon.
S. v. Brittain,
Applying this established rule, tbe court could not direct a verdict for defendаnt, as be was tried only for murder in second degree, and not for tbe capital felony. Tbe misfortune of defendant is that tbe jury seems not to have credited bis version оf tbe affair.
Tbe remaining assignments of error are directed to matters of evidence.
2. Tbe declarations of defendant while under arrest were propеrly admitted.
There is nothing in tbe record indicating that tbe declarations admitted werе induced by threats or any kind of compulsion or inducement. They appear tо have been entirely voluntary upon part of defendant. Tbe fact that be was in custody of an officer does not alone render them incompetent.
S. v. Bowden,
3. Tbе defendant objected to evidence of threats against deceasеd, made by defendant at various dates, varying from six months to two years before tbe killing.
We
might hesitate to admit evidence of threats to kill tbe deceased, made two yеars before tbe homicide, if they stood alone, without evidence of intermеdiate and recurring threats, although threats made twelve months prior were admittеd in
S. v. Howard,
Under sucb circumstances, we think the evidence was properly admitted. 6 Ency. of Evidence, 631.
4. The following evidence was excepted to:
Q. “Who was in possession of the two tracts of land, or who claimed them?” A. “John Henry Johnson wаs in possession of some on either side.”
It was competent to prove the facts concerning the dispute as to the possession and ownership of thе land to show motive for the homicide. This method of proving possession has been sustained by this Court in a learned opinion by
Justice Shepherd
in
Bryan v. Spivey,
As said by the learned Assistant Attorney-General in his аrgument: “Possession is a collective fact, the result of the witness’ observation аnd knowledge, and is not really an expression of opinion. Testimony such as this is admissible, with its weight in a particular case to be tested by eross^xamination.”
The law is very clearly expressed in
Rand v. Freeman,
We have examined the remaining exceptions to evidence, and think they are without merit and need not be discussed.
No error.