State v. . WestState v. . West
- Reporters:
- Before:
- Ruffin (per curiam)
One Henry Deal, who was present at the transaction, testified that he was the owner of a distillery, in the county of
The witness Deal, produced the stick which was examined by the Court, and was admitted by the prisoner‘s counsel to be that with which the wounds were inflicted. It was oak, of
One William Walker, said he was passing the distillery on the night in question, and he went in, having heard of the occurrence, and found some persons, whom, he did not remember, trying to get the deceased up, but he was unable to sit, and when raised, would tumble down again; that prisoner said Pope had called Glass a d____d liar, and he had just as well have called him so; and he no sooner said it than he killed him; that if deceased died, he was willing to be hung for it; but did not think a jury would hang a man for killing such a dog.
Dr. Atkins testified that being called to the deceased, he reached him next morning; that he had just been removed to a bed in the corner of the distillery; that he found him dying, and advised his removal to some dwelling, where better attention could be given him. He made a partial examination that day, and found the scull broken from the temple round to the back of the head; the patient died that day, and on the next, he made another examination, and found the skull shattered, the sacks containing the brain broken, the internal artery ruptured, and the whole brain suffused with blood. He found a cut across the forehead in a curved shape, and the bone of the head underneath broken, and, also, a cut across the nose, and the bones of that organ crushed. He testified that the deceased died of these wounds, and that any one of them was sufficient to produce death.
The prisoner‘s counsel contended that the instrument wherewith the homicide was committed, must be proved by a witness to be deadly, and that the instrument was not deadly, and malice could not be implied, but must be expressed, that
The Court, after explaining, the grades of homicide in North Carolina, and defining the term, malice, and its two-fold application to the law upon that subject, proceeded to inform the jury, that in order to imply malice, and make a killing, without provocation murder, it was necessary the instrument used should be calculated to produce death, or some great bodily hurt; that the stick produced and identified, was subject to examination by the Court and jury, and supposing the blows to have been struck with the stick in the manner stated by the witness, Deal, while the deceased was in the attitude stated, they, (the blows) were manifestly calculated to produce grievous hurt, and therefore, the stick used in such way under such circumstances, was deadly. It followed, therefore, from general principles laid down, pertaining to the law of homicide, that if the killing was without provocation with the weapon in question, and the manner stated, the law would imply malice.
The Court further instructed the jury, that an intention to kill, was not necessarily involved in every case of criminal homicide, when a deadly weapon was used. If the blows were given, reckless of how they might result, in a manner actually endangering life by their violence and barbarity, and they turn out to be the cause of death, it is a case of homicide, the grade of which is to be determined by other circumstances. If without legal provocation, it is a case of murder. — Defendant excepted.
His Honor gave some other instructions not excepted to, and not deemed to be material to the question before this Court.
Verdict that the prisoner was guilty of murder. Judgment and appeal by the prisoner. Whether an instrument or weapon be a deadly one, is, at least generally speaking, for the decision of the Court; because it is a matter of reason, that it is, or is not, likely to do great bodily harm, which determines its character in this respect; State v. Craton, 6 Ired. Rep. 164. Hence, it is clear that a gun, sword, large, knife, or bar of iron, and any other heavy instrument, by a blow from which a grievous hurt would probably be inflicted, are deemed in law, deadly instruments. An instrument, too, may be deadly or not, according to the mode of using it, or the subject on which it is used. For example, in a fight between men, the first or foot would not, generally, be regarded as endangering life or limb. But it is manifest, that a wilful blow with the first of a strong man, on the head of an infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue. So, the actual effects produced by the instrument, may aid in determining its character in this respect, and in showing that the person using it, ought to be aware of the danger of thus using it. Here, as it seems to the Court, it must be apparent that the instrument as used, was likely to produce death, or, at the least, great bodily harm. It was an oaken staff, nearly three feet long, of the diameter of an inch and a half at one end, and two inches at the other. With it, three blows were inflicted, while the prisoner was standing over the deceased, and the latter was either sitting on a log with his head hanging down, too drunk to perceive his danger, or make an effort to escape it, or was down on the ground from the effects of the earlier blows, and each of them fractured the bones of the head; one, the skull on the side from the temple to the back of the head; another, the thick bones of the forehead; and the third crushed the bones of the nose. An instrument producing such effects, not accidentally on one occasion, but at each blow with it, is unquestionably a highly dangerous weapon, especially when used upon one in the posture and helpless condition of the deceased, and authorises the inference, that the prisoner must have understood the peril in which he was putting the deceased, and gave the
PER CURIAM, Judgment affirme