State v. . McIver

34 S.E. 439, 125 N.C. 645, 1899 N.C. LEXIS 278

• Court: Supreme Court of North Carolina
• Decided: November 28, 1899
• Status: Published

Opinion

Douglas, J.

Tbis is an appeal on conviction for murder in tbe first degree. Among other exceptions, are those to tbe exclusion of tbe following evidence: Tbe prisoner proposed to ask a witness for tbe State if tbe deceased was not a man of vicious temper and violent when be got angry. On objection by tbe State, the question was excluded. Tbe prisoner also proposed to ask tbe witness if tbe deceased did not exhibit tbis violent and vicious temper towards another of bis bands that morning, and beat him unmercifully. Tbis was also excluded. In this we think ther*e was error. The rule, as laid down in State v. Turpin, 77 N. C., 473, 476, is as follows: “Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the hilling may have been done from a principle of self-preservation, and also where tbe evidence is wholly circumstantial, and the character of tbe transaction is in doubt.” Tbis has been so often cited and approved as to have become a settled rule of evidence. State v. Byrd, 121 N. C., 684, and cases cited therein. The facts in tbe case at bar are very similar to tiróse in Turpin’s case, and even stronger, inasmuch as tbe threats were made directly to tbe prisoner.

It appears from tbe evidence that tbe deceased came to- tbe shanty where tbe prisoner lived, about 6 o’clock on tbe morning of -the homicide, and ordered the prisoner to leave. The language and manner of tbe deceased are thus described by Will Hill, a witness for tbe State: “Heard Mr. Howie (tbe deceased) cursing Arch (tbe prisoner) that morning, and all Arch said, was: ‘I’m sick.’ Mr. Howie cursed him for everything. Arch was in bed. Mr. Howie told him if be did not leave before morning be would land him in bell. Arch did not say he did not want any trouble. Howie did not give Arch time to get bis clothes or bis breakfast; told him he would kick him into bell if be did not leave.” Shortly after-wards tbe deceased and tbe prisoner both left tbe shanty. About half past 9 o’clock, tbe prisoner came back to the shanty, and soon thereafter tbe deceased rode up in front of the shanty, and, after some altercation with tbe prisoner, got off his horse and entered the house. In a few minutes be was shot by the prisoner. There was no one' else in tbe house.' The prisoner admits the killing with a deadly weapon, but claims that it was done in self-defense. With regard to tbe killing, the prisoner testified in his own behalf as follows: “I went in the shanty. Cora said, ‘yonder comes Mr. Howie.’ I said, ‘let me get away before he gets here to keep from having a fuss.’ I was in the house waiting for Esther to bring my handkerchief. I had my coat on my arm, fixing to leave there. Mr. Howie rode up on his horse in front of the door about forty feet, and said, ‘look here, old nigger,I thought you were gone.’ I told him I had gone, but had to come back for my coat. He said, ‘you damned nigger, think I can’t break you away from that shanty.’ I did not reply. He rode his horse up in front of the door, and said, ‘get out of here, you damned yellow son-of-a-bitch; I’ll blast you down.’ He got down off his horse, and grabbed up an axe which was there beside the door, and came into the shanty, and drew back to hit me with the axe, and I reached over on the bed and got the pistol, and shot him, before he could hit me with it. The first time I shot him, he didn’t stop; he shook his head, and came right on to me, and I shot him again, and the axe dropped on the floor, and he fell forward on the axe, and put his hand back to his hip pocket. I stepped out at the door. He raised up and said, that was all, ‘damn you, I’ll get you.’ I then went on down the road, and met Mat Hill on the bridge.” The testimony of the prisoner was competent, and, if believed by the jury, strongly tended to prove self-defense. Under the circumstances, the prisoner was clearly entitled to testimony tending to show the violent character of the deceased. The principle is so fully discussed in the cases of Turpin and Byrd, supra, that we need not further discuss it, which we could not do, without useless repetition.

As the excluded evidence was competent, and in the highest degree material, the prisoner is entitled to a new trial. There are also some, exceptions to the charge of the Court, which we think tended to the prejudice of the prisoner, but as these objections are not likely to arise upon another trial, we need not discuss them.

New trial.