State v. . Brittain

89 N.C. 481

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

Asi-ie, J.

It was not contended in the argument before us, nor does it seem to have been insisted upon in the court below, but that Cunningham, the deceased, came to his death iu consequence of a wound received from a pistol fired by the prisoner, I. W. Brittain, at Fanning, in the rencountre between him and the prisoner. We therefore take that fact as conceded.

. We do not think we are called upon to consider whether the evidence disclosed any feature of the crime of murder, for the prisoners having been found guilty of manslaughter only, the question for us to decide is, whether they were convicted of that offence according to law.

The prisoners prayed for numerous specific instructions, which were severally overruled by His Honor, and the prisoners excepted to each of his rulings. And we proceed, in the first place, to dispose of the exceptions in the order in which the instructions were asked.

The first exception to the refusal to give the instruction that upon the testimony the prisoners could not be convicted of murder, we deem immaterial. For the ruling of the court upon this instruction, in either way it may have been given, could not have influenced the verdict of the jury, for upon a careful review of all the testimony in the case, and upon the testimony of S. P. Brittain himself, we are of opinion there were no facts or circumstances disclosed in the evidence that would have warranted the jury in a verdict of excusable homicide.

Take the testimony of S. P. Brittain himself, and it fails to make out a case of excusable homicide. He says, after consulting counsel: “I went in, and Panning followed, with his gun in his hand towards me. I ordered him out. He came out, having his gun pointed at my breast. I struck at him, struck the gun down and it fired,” and on cross-examination he said ho struck several blows with the scantling, which is shown by other testimony to have been a deadly weapon. Can any one who reads this, aside from the other testimony in the case, doubt who was the aggressor? They are in the house together; Panning is ordered out, and he goes out, and Brittain follows him out of the house into the street with a deadly weapon, and a fight im-mediátely ensues; and he says in all this he was acting in self-defence. We attach no importance to the fact that Fanning, while retreating from the house, if it be so, held his gun pointed at the prisoner, for it was most natural for him to have done so, to prevent the assault of the prisoner with the scantling; but the fact that Fanning was retreating and never fired the gun until the blow was made by the prisoner with the scantling, when he had every opportunity to shoot before that, is conclusive to our minds that he was acting with forbearance, and had no purpose of using his gun, unless he was assailed. So far from Fanning’s being the assailant, the combat was evidently brought on by the assault of the prisoner, S. P. Brittain, and although, after the combat had commenced, he found it impossible to retreat as the law required him to do, to save his own life he had hilled Fanning, he could not have sheltered himself under the plea of self-defence.

Loud Hatje lays down the law on this point that, “if A assaults B first, and upon that assault B reassaults A, and that so fiercely that A 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 def enciendo, but to be murder or simple homicide, according to the circumstances of the case; for otherwise we should have all the cases of murder or manslaughter, by way of interpretation, turned into se def endeudo. The party assaulted indeed shall, by the favorable interpretation of the law, have the advantage of this necessity to be interpreted as a flight, to give him the advantage of se defendendo, when the necessity put upon him by the assailant makes his flight impossible; but he that first assaulted hath done the first wrong, and brought upon himself this necessity, and shall not have advantage of his own wrong to gain the favorable interpretation of the law, that that necessity which he brought on himself should, by the way of interpretation,be accounted a flight to save himself from the guilt of murder or manslaughter.”

This puts the plea of self-defence out of the question, and we are, therefore, unable to see how it is possible that the refusal to give such an instruction could have prejudiced the prisoners. When the facts of á case are such as to leave it an open question for the consideration of the jury whether the prisoners are guilty of murder or manslaughter, or are excused upon the principle of self-defence, we can well understand how such a refusal might work to the prejudice of the prisoners; for every practitioner, who has had any experience in the trial of capital cases, knows how prone juries are to compromise a capital case upon the middle ground of manslaughter; but there is no room for such a compromise where the evidence, as here, is of such a character as to exclude any consideration of excusable homicide.

The prisoners, in support of this exception, relied upon the case of the State v. Ta-cha-na-tah, 64 N. C., 614; but that case is distinguishable from this, in that, there, there were circumstances (and this court so intimated) that might have justified a verdict of acquittal, aud when the court below charged the jury “that if there was malice, the defendant was guilty, and if he fought with the deceased only in defence of his life, but yet had malice towards the deceased, then he was guilty of murder,” this court held the instructions to be erroneous, because they could not see “that they did not operate prejudicially to the appellant.” But in our case we cannot see how the ruling of the court could possibly operate to the prejudice of the prisoners, and even admitting the ruling upon the facts of the case to be erroneous, if it was in no degree prejudicial to the cause of the prisoners, it is no ground for a venire de novo. State v. Frank, 5 Jones, 384.

The propositions contended for in the second, third, fourth and fifth instructions prayed for, are all to the same effect, and substantially maintained the proposition that in all capital cases the burden of proof is on the state to prove all the material allegations in the bill of indictment; and if on the whole evidence — that produced by the state as well as that offered by the prisoner— the jury have a reasonable doubt whether the prisoner is guilty of the crime charged, they are bound to acquit.

This is one of the propositions insisted upon by Judge Wilde, in his dissenting opinion in the famous case of Commonwealth v. York, 9 Metc., 93, and was urged before this court by counsel for the prisoner in the case of State v. Willis, 63 N. C., 26. But tin's court, in that case, emphatically repudiated the proposition, and reiterated the doctrine that in all indictments for homicide, where the intentional killing is established by the proof, the killing is presumed to be malicious, and of course amounting to murder, until the contrary appears from circumstances of alleviation, excuse or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they arise out of the evidence against him. This doctrine has been announced, not only in State v. Willis, but in State v. Ellick, 2 Winst., 400; State v. Johnson, 3 Jones, 366; State v. Haywood, Phil., 376; State v. Smith, 77 N. C., 488.

The prisoners’ counsel contended that, conceding that the proof of the intentional killing raised a presumption of malice, and without more showing the crime would be murder, but when by the proof adduced in the case, the [offence of murder is put out of question, the burden is then shifted upon the state, and it must establish the crime of the prisoner; and if it leaves a reasonable doubt on the minds of the jury as to the grade of the crime, the prisoner must be acquitted. But this is not the law in this state. When the killing is once shown, either by the proof offered by the state or by the admission of the prisoner, the burden of proving all circumstances of mitigation, excuse or justification devolves upon the prisoner, and continues to rest upon him through every stage of the trial, for no distinction is recognized between the cases where the question is, whether the homicide is murder or manslaughter, and whether the killing is murder or excusable or justifiable homicide. State v. Willis, supra; State v. Vann, 82 N. C., 631; 1 East P. C., 279. And the principle of “reasonable doubt” has no application to the doctrine of mitigation. The rule in regard to that is, that the jury must be satisfied by the testimony that the matter offered in mitigation is true. State v. Ellick, State v. Willis, and State v. Vann, supra.

The sixth, scveutli and eighth exceptions, touching the right of S. P. Brittain to enter the store, we do not regard as material to the question whether the prisoner, S. P. Brittain, was guilty of manslaughter; for the criminality of his conduct, in that view of the case, did not arise until he had left the house and followed Fanning into the street with a deadly weapon, after entering the store, as he unquestionably had the right to do. If he had remained there, this deplorable scene of bloodshed would most probabl-y not have occurred.

The eighth and ninth exceptions, in regard to what would have been the character of the crime of Fanning if he had slain Brittain, involved questions that were altogether irrelevant; for whatever malice might have influenced Fanning, and what might have been his guilt in that event, could not in any degree have affected the criminality of the prisoners. If two men fight upon a sudden quarrel, upon equal terms, the one upon provocation and the other upon a predetermined intention to kill, the fact that the latter would be guilty of murder if he slew his adversary, cannot excuse the other if he should be the slayer.

The tenth exception, relating to J. W. Brittain’s right to have his pistol in his father’s store: He certainly was guilty of a violation of tlie law in carrying it along the street, concealed about his person; and he had no right to have it in the store if he carried it there, as the testimony very strongly tends to show, to use it against Fanning in the event of a difficulty with him.

The twelfth and thirteenth exceptions are without foundation, for His Honor, in the ninth instruction in the series given by him to the jury, substantially gave the instructions as prayed for by the prisoners.

The fourteenth exception is without evidence to support it, for there is no evidence in the case that S. P. Brittain rented the store for himself and his son, J. W. Brittain, to carry on the business of liquor dealers as partners.

There were no specific exceptions taken to the charge of His Honor, and we arc of the opinion the principles of law, as applicable to the facts of the case, were correctly expounded by him in the several instructions given to the jury; but those on the point of murder are subject to the observations above made on the exception to the first instruction asked by the prisoners.

Our conclusions are equally applicable to the cause of J. W. Brittain as to that of his father, S. P. Brittain, for, although a son may fight in the necessary defence of his father, yet in such cases the act of the son must have the same construction as the act of the father should have had, if it had been done-by himself; for they arc in mutual relations to one another. State v. Johnson, 75 N. C., 174; 1 Hale P. C., 484.

While impanelling the jury, a juror of the original panel was called, who had served on the jury within two years in the same court. The prisoners challenged him for cause. The challenge was overruled by the court, and the prisoners excepted. The jury, however, was made up without exhausting the challenges of the prisoners. The exception was properly disallowed; it was no ground for a venire de novo. State v. Cockman, 2 Winston, 95.

The prisoners’ counsel moved for a new trial, on the ground that improper influences had been brought to bear upon the jury after they had retired to make up their verdict., and before they had agreed. It was shown by affidavits to the court that while the jury were in consideration, a deputy sheriff, in conversation with the officer of the jury, said to him “that the prisoners’ counsel had about given up their case, and that there was a good deal of anxiety about the case.” This the affiant stated,lie repeated to a part of the jury, but he did not think all the jury heard it; that some of the jury said “ that must be intended to influence the jury, but it would not influence them,” and affiant stated further “ that he did not suppose the deputy sheriff intended to influence them or to have that effect.”

The counsel of the prisoners requested that some of the jury might be examined as to the alleged improper influence. His Honor, doubting his right to examine a juror for the purpose of impeaching his verdict, said he would take the statement of such jurors as would voluntarily submit to be examined, and five of the jurors were called, four of whom expressed a willingness to be examined, but the fifth declined. The prisoners’ •counsel insisted upon the right of cross-examination, and thereupon His Honor declined to examine them. The prisoners’ counsel then called the jurors and proposed to examine them, but His Honor refused to permit it, and the prisoners excepted.

In the ruling of His Honor upon these points there was no •error. It is well settled that a juror cannot be examined as a witness to impeach the verdict of the jury of which he was a member. Thomp. and Mer. on Juries, §§364, 6; State v. Smallwood, 78 N. C., 560. And whether a new trial should have been granted to the prisoners, on account of the “ communication” made to the officer in the hearing of part of the jury, was a matter not reviewable in this court. When the “circumstances are such as merely to put suspicion on the verdict by showing, not that there was, but that there might have been, undue influence brought to bear on the jury, because there was ■opportunity and a chance for it, it is matter within the discretion of the presiding judge.” But if the fact be that undue influence was brought to bear upon the jury, as if they were fed at •the charge of the prosecutor or prisoner, &e., then it would be otherwise. State v. Tilghman, 11 Ired., 513, cited in Morris’ case, 84 N. C., 756.

Failing in the motion for a new trial, the prisoners’ counsel moved in arrest of judgment for alleged defects in the form of the bill of indictment, but upon examination of the document, we find it drawn in the usual manner according to precedent.

Our conclusion upon the whole case is, that there is no error. This opinion must, therefore, be certified to the superior court of Henderson county, that the case may be proceeded with according to law.

No error. Affirmed.