State v. . Evans

98 S.E. 788, 177 N.C. 564, 1919 N.C. LEXIS 171

Opinion

WalKER, J.,

after stating the case: The motion for a nonsuit was properly overruled. As we have said in our statement of the case, there was evidence upon which the jury might well have concluded that the prisoner was the aggressor in the quarrel with the deceased; that he went to his home for the purpose of getting his pistol and thereby preparing himself for the combat, so that he would have the advantage of his adversary, and that this was done with the purpose and intent of engaging in the fight and slaying the deceased at the first opportunity. He was willing and ready for the fray, and entered into it with deadly purpose. But the jury, it seems, took the lenient view and convicted him of the lesser crime. There being ample evidence of murder and of manslaughter, the assignment of error, which is based upon the allegation that there was none, cannot be sustained.

The first, second, seventh, eighth, eleventh, thirteenth and fourteenth 'exceptions assign errors in tbe rulings or the charge, relating solely to murder in the first degree, but the prisoner was acquitted of this-■offense, and therefore error, if there was any, proved to be harmless. S. v. Bryson, 173 N. C., 803; S. v. McCourry, 128 N. C., 594; S. v. Casey, 159 N. C., 472. If there was any error in respect to murder in the first degree it was favorable to the prisoner, as the charge did not, upon the facts to be inferred from the State’s testimony, comply fully with the principle as stated in S. v. Brittain, 89 N. C., 481; S. v. Garland, 138 N. C., 675; S. v. Kennedy, 169 N. C., 326; Foster’s Crown Law, p. 277, and the rule as formulated by Lord Hale and quoted by Justice Ashe in S. v. Brittain, supra. There may not have been any positive or affirmative error, even in favor of the prisoner, in this part ■of the charge, but the court made no distinct reference or application to the principle just stated, and we think there was evidence to warrant it. But, as has been said, if there was error in this respect the prisoner .assriredly has no reason to complain of it.

The exception as to the remarks of the solicitor is without merit. He had the right to refer to the evidence in his argument for the sake of greater accuracy. The notes of the evidence were taken by an official stenographer appointed under the authority given by a statute, and it. will be presumed at least prima facie, and in the absence of any showing to the contrary, that they were correct. There is no suggestion that they were not, but the ground of objection is that the cross-examination had not been typewritten. There is no proof that the solicitor misquoted the testimony, but every reason to believe that he did not. He was careful of the prisoner’s rights and would not trust to his own memory, but, to be just to the prisoner, he referred to the notes as a safer and more reliable source from which to draw an accurate reproduction of what the witness had said, using his own language. There was nothing wrong in this. The court correctly instructed the jury as to how they should pass upon the evidence, as follows: “These, weight of evidence .and credibility of witnesses, are matters exclusively for the jury, and the court has not consciously done or said anything to influence you one way or the other. It is the duty of jurors to take the law from the court. .and the evidence from the witnesses. You are to determine what facts .have been established by the evidence." (Italics ours.)

If the solicitor should not have attached more importance to the testimony of the witness W. 11. Dixon because he was a white man, and thereby drawn the color line, as the prisoner’s counsel contended, the court very fully and in emphatic language counteracted any prejudice that could have been engendered thereby, even to the extent of telling ■.the jury that it would be “cowardly perjury” to be influenced by such ;a consideration. We have no idea that the solicitor intended to arouse any prejudice against the prisoner by his remark. The word was incidentally used rather than intentionally or designedly. The point was that his only witness to the material part of the transaction, who had a-clear view of the scene of the tragedy, happened to be a white man who was entirely disinterested. But if there was any evil in the argument, as drawing the color line, the court swept it from the case by his trenchant reference to it. In the administration of the law by the courts of this State, every citizen stands upon an equality before the bar of justice, and the judge so stated. It may be further said that the objection to the remarks of the solicitor were general and there were two> distinct propositions, the exception to one of which we have already overruled. S. v. Ledford, 133 N. C., 714; Quelch v. Futch, 175 N. C., 694; Caldwell County v. George, 176 N. C., 602. The ground of objection, based upon drawing the color line, was not distinctly assigned until the brief of the prisoner’s counsel was filed. The court had the right to infer from the form of the objection, when first taken, and the same inference also is to be drawn from the assignment of error, that the sole ground of objection was to the reading of the typewritten notes of the witness’ testimony. The objection, therefore, comes substantially within the rule that an appellant is restricted to the ground of objection to evidence stated below. Kidder v. McIlhenny, 81 N. C., 123; Rollins v. Henry, 78 N. C., 342; Ludwick v. Penny, 158 N. C., 104, and also within the rule stated in S. v. Tyson, 133 N. C., at p. 699, where we said that a party will not be permitted to treat with indifference anything said or done during the trial that may injuriously affect his interests, thus taking the chance of a favorable verdict, and after-wards, when he has lost, assert for the first time that he has been prejudiced by what occurred. His silence will be taken as a tacit admission that at the time he thought he was suffering no harm, but was-perhaps gaining an advantage, and consequently it will be regarded as-a waiver of his right afterwards to object. Having been silent when he should have spoken, we will not permit him to speak when by every consideration of fairness he should be silent. We will not give him two-chances. The law helps those who are vigilant — not those who sleep-upon their rights. He who would save his rights must be prompt in asserting them. We do not think, in the most favorable view to betaken for the prisoner in the present case, that there was any such abuse of the judge’s discretion, if there was any at all, to require a reversal. “The conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge who, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case, and when counsel grossly abuse their privilege at any time in the course of the trial the presiding- ■ judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the case, it is not his duty to do so in the sense that his failure to act at the time, or to caution the jury in his charge, will' entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge’s inaction, objection must be entered at least before the verdict.” S. v. Tyson, 133 N. C., at p. 698; Knight v. Houghtaling, 85 N. C., 17. The trial was perfectly fair and impartial, and the verdict was fully justified by the evidence. There is not the slightest appearance of prejudice or bias, but, on the contrary, it would seem that the jury was merciful to the prisoner.

The charge of the court covered the entire cage, in every phase of it, and the instructions were correct and in accordance with the most approved precedents. It was not only an adequate charge, but in all essential respects an excellent one. If there was any defect, there was none which prejudiced the prisoner’s case in the least degree.

1. A killing with a deadly weapon, admitted or proven, requires the prisoner to satisfy the jury as to the existence of all matters of mitigation or excuse relied on by him. The latest applications of this doctrine-are to be found in S. v. Atwood, 176 N. C., 704; S. v. Johnson, idem., 722, where the authorities are collected.

2. Manslaughter is the unlawful killing of another without malice, an instance of the crime so defined being where one unlawfully kills-another by reason of the anger suddenly aroused by provocation,- which the law deems sufficient; the anger being naturally aroused from such provocation and the killing being done before time has elapsed for-passion to subside and reason to resume its sway. S. v. Merrick, 171 N. C., 788, and cases there cited.

3. The legal effect of “beginning the fight willingly” and “cooling time” have been recently elaborately discussed in S. v. Kennedy, 169 N. C., 326, and in S. v. Crisp, 170 N. C., 785.

These principles were all fully explained to the jury, and all others-pertinent to the case on this appeal. The doctrine of reasonable doubt was correctly stated and applied, and the jury could not have misunderstood the law in regard to it.

The prisoner has no reason to complain of the verdict. He had threatened the deceased upon trivial grounds, saying that he would show him “that he was not the only bully around here,” and he cursed him with the imprecation “God damn him, I will get him,” and immediately left the mill, riding to his home in a wagon and procuring his pistol,, which he concealed, and returning to execute his threat “that he would get him,” the deceased, which he so quickly did. This may not be true, • and the prisoner’s version may be the right one, but there was sufficient evidence for a finding that it was true. If so, the prisoner fought, not upon a principle of self-defense, but from malice preconceived, and with a definite intent to kill when he engaged in the fight, which, as the testimony shows, he did willingly, if not eagerly. He first secured to himself the safer side of the contemplated affray by arming himself beforehand with a deadly weapon, and then proceeded to the field of the conflict, where the second quarrel occurred, which he must have been seeking, and there did his deadly work. It is like S. v. Hogue, 51 N. C., 381, 384, where Chief Justice Pearson says for the Court: “The deceased committed a violent assault upon the prisoner as he entered the room. This was legal provocation, and if the case stopped there the killing would be manslaughter, and the character of the deceased as a quiet or violent man would be immaterial; but the case did not stop there for the jury, under instructions of which the prisoner has no right to complain, find that he killed 'of his malice forethought,’ that he had formed the deadly purpose, prepared the weapon, and sought that particular time and place to do the deed. So the character of the deceased was immaterial. It is surely murder to kill with malice, express or aforethought, no matter how violent or wicked the deceased may be. His Honor laid down one proposition which we think too favorable to the prisoner, and it is referred to lest it may mislead. It assumes that the prisoner 'had prepared a deadly weapon with an intention to use it in case he got into1 a fight with the deceased, and went into the dining-room for the purpose of meeting with the deceased, and with the expectation of having a conflict with him,’ and the killing is' held to be manslaughter. Killing under these circumstances would be murder, because of the preconceived malice, although the deceased made the first assault,” citing S. v. Martin, 24 N. C., 101.

It is true the deceased had a cant hook, which is a wooden lever with a movable Iron hook near the end, used for canting or turning over .logs, but according to Hogue's case this does not relieve the prisoner of :all guilt or necessarily mitigate the guilt of murder. He fought with malice and a purpose to slay the deceased if he got the chance, and not in self-defense, so the jury found, and there was ample evidence of the ¡Pact.

There also was evidence — and, too, strong evidence — that his purpose to kill was preconceived, premeditatedly and deliberately formed, but the jury, as we have said, gave the prisoner the benefit of the doubt as to this feature of the case, and acquitted him of murder in the first degree, and convicted him only of slaying the deceased with malice.

We may add that we commend the charge of the court as to race prejudice. It was proper, even though, exception was not properly taken, that the jury should have been fully cautioned against the influence of all prejudice. There is but one law, as he stated, for all citizens, and our judges have always been careful to guard against any prejudice, if it exists, on account of racial antipathies. We do not believe such prejudice exists, and our records show that it does not. Our judges will be prompt, as they have been, to eradicate all such evil' considerations from the jury box which are calculated to poison the-fountain of truth and prevent even and exact justice to all men of whatever state, race or persuasion. We have striven to this end persistently, and will continue to.do so whenever necessary. The presiding judge-did not too strongly denounce a juror who would be swayed by any-bad motive to do wrong by preventing justice and corrupting his verdict:.

Our conclusion is that no error is disclosed by the record.

No error.