Hoke, J.,
after stating the facts: The above statement gives the direct evidence of all the living persons who saw the occurrence, and presents the case sufficiently to a proper understanding of the court’s decision.
In developing their case before the jury, the prisoners proposed to prove by the witness; White, one of the prisoners, that his brother, the other prisoner, asked the witness to go with him to Sherrill’s to help him persuade Sherrill to marry the witness’s niece, and that the witness informed his brother he would go with him for that purpose, and there was no agreement or conspiracy to use force or violence on Sherrill if he declined. To this testimony the State objected. The objection was sustained and the prisoners excepted.
We are of opinion that this ruling was erroneous and the evidence should have been received. The argument to sustain the objection was put on the ground that the proposed testimony was a mere declaration of the prisoner in his own favor, and as such was incompetent. This was no declaration of the prisoner, but his sworn statement in a matter relevant to the issue. The purpose of' the prisoner in going to the home of the deceased, in some aspects of the case, was very [715] pertinent, and tbe prisoner s testimony of such purpose was relevant as substantive testimony and the declaration to his brother was relevant as corroborative evidence. State v. Hall, 132 N. C., 1102. Again, while the judge below in one portion of the charge submitted the question of manslaughter to the jury, in closing the charge he said: “You will consider and determine upon considération of all the evidence in this case, and applying the' principles of the law as instructed, whether or not the prisoners or either of them is guilty of murder in the first or murder in the second degree.” This was no doubt an inadvertence on the part of the court, but the effect, we think, was to withdraw from the jury the question of manslaughter. The prisoners excepted. Where there is evidence admitting a consideration of manslaughter on an indictment of this kind and facts of this character, the prisoners are entitled to have the same submitted under a correct charge, and the failure to do so would be error, because, though the verdict may be for a higher offense, the jury might have convicted of the lower crime, if the same had been submitted under a proper charge. We do not think, however, that either of these exceptions presents a case of reversible error, because, assuming the rejected evidence to be true, that in going to the home of the deceased, there was no conspiracy to do violence, and that they only went to persuade the deceased to marry their niece, we are of opinion that in considering the entire testimony, including that rejected, and accepting the statements of the prisoners as true, there is no aspect of the case that would justify a verdict of a lesser crime than murder in the second degree. Of this the prisoners were convicted, and thé error of withdrawing the question of manslaughter from the consideration of the jury was immaterial.- The question of murder in the first degree not being before us, and an intentional homicide having been admitted by the prisoners on the evidence in this ease, the law presumes the killing to be murder in the second [716] degree, and it must be so declared, unless from the entire testimony the prisoners satisfy the jury that the killing was excusable on the plan of self-defense, or of facts which mitigate the crime to manslaughter. State v. Smith, 77 N. C., 488. In that case, Fairecloth, J., speaking for the court, says: “Homicide is murder unless it be attended with extenuating circumstances which must appear to the satisfaction of the jury. If A assaults B, giving him a severe blow or otherwise making the provocation great, and B strikes him with a deadly weapon and death ensues, the law in deference to human passion says this is manslaughter;” and the case further states if the “provocation be slight and it can be collected from the weapon used or any other circumstances that the prisoner intended to kill or do great bodily harm and death follows, it is murder.” Foster’s Crown Law, 291. It cannot be contended here that this is a case of excusable homicide. Two strong, vigorous and determined men, in the presence of a boy just grown, called him from his bed about daylight in the morning, without arms or means of defense. They were near enough to have seized the deceased at any time during the difficulty, and could have easily overpowered him. The killing was without necessity, and there is no statement or claim by the prisoners that they or either of them were in reasonable apprehension of bodily harm at any time.
Thomas White’s evidence:
Q. You shot him in the back of the head when you could have caught and held him ? A. I could have caught him.
Q. You say you did not want to hurt him; then why didn’t you catch him and keep from hurting him — two great large men like you were? A. Because he attacked us.
Q. You were mad then? A. No, not mad.
Q. Not mad, and yet you preferred to shoot him in the back of the head instead of holdina' him ? A. I shot him be[717] cause of tbe fight on band. My brother was not struck at all; neither of us hit.
Q. And yet you shot and killed young Sherrill ? A. Yes, I shot once, and I do not know how many times my brother shot.
Nor is there any well considered principle of manslaughter to which the conduct of the prisoners could be reasonably referred. It is contended first that there was a fight between the parties and that the homicide should be referred to the anger aroused by mutual combat. It is true that when men fight upon a sudden quarrel, and one kills the other in the heat of passion aroused by the combat, the law ordinarily refers such a homicide to the anger and considers the killing a case of manslaughter. The doctrine, however, has' this limitation: That the combatants must fight on equal terms, at least at the outset, and no unfair advantage must be taken.
In Russell on Orimes, p. 129, it is said: “Where the combat is not an act of deliberation, but the immediate consequence of sudden quarrel, it does not of course come within the foregoing doctrine, yet in cases of this kind, the law may come to the conclusion of malice if the party killing began the attack with circumstances of undue advantage; for, in order to save the party making the first assault upon an insufficient legal provocation from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be put on an equal footing in point of defense, at least at the outset, and this more particularly where the attack is made with deadly and dangerous weapons.”
Again, the same author says on page 131: “If after an interchange of blows on equal terms one of the parties on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will be only manslaughter * * *. But if the party at the beginning prepared a deadly weapon and has at the time the power, of using it in some [718] part of the contest, and uses it accordingly in the course of the combat and kills the other party with the weapon, such killing will be murder.”
Free access — add to your briefcase to read the full text and ask questions with AI
Hoke, J.,
after stating the facts: The above statement gives the direct evidence of all the living persons who saw the occurrence, and presents the case sufficiently to a proper understanding of the court’s decision.
In developing their case before the jury, the prisoners proposed to prove by the witness; White, one of the prisoners, that his brother, the other prisoner, asked the witness to go with him to Sherrill’s to help him persuade Sherrill to marry the witness’s niece, and that the witness informed his brother he would go with him for that purpose, and there was no agreement or conspiracy to use force or violence on Sherrill if he declined. To this testimony the State objected. The objection was sustained and the prisoners excepted.
We are of opinion that this ruling was erroneous and the evidence should have been received. The argument to sustain the objection was put on the ground that the proposed testimony was a mere declaration of the prisoner in his own favor, and as such was incompetent. This was no declaration of the prisoner, but his sworn statement in a matter relevant to the issue. The purpose of' the prisoner in going to the home of the deceased, in some aspects of the case, was very [715] pertinent, and tbe prisoner s testimony of such purpose was relevant as substantive testimony and the declaration to his brother was relevant as corroborative evidence. State v. Hall, 132 N. C., 1102. Again, while the judge below in one portion of the charge submitted the question of manslaughter to the jury, in closing the charge he said: “You will consider and determine upon considération of all the evidence in this case, and applying the' principles of the law as instructed, whether or not the prisoners or either of them is guilty of murder in the first or murder in the second degree.” This was no doubt an inadvertence on the part of the court, but the effect, we think, was to withdraw from the jury the question of manslaughter. The prisoners excepted. Where there is evidence admitting a consideration of manslaughter on an indictment of this kind and facts of this character, the prisoners are entitled to have the same submitted under a correct charge, and the failure to do so would be error, because, though the verdict may be for a higher offense, the jury might have convicted of the lower crime, if the same had been submitted under a proper charge. We do not think, however, that either of these exceptions presents a case of reversible error, because, assuming the rejected evidence to be true, that in going to the home of the deceased, there was no conspiracy to do violence, and that they only went to persuade the deceased to marry their niece, we are of opinion that in considering the entire testimony, including that rejected, and accepting the statements of the prisoners as true, there is no aspect of the case that would justify a verdict of a lesser crime than murder in the second degree. Of this the prisoners were convicted, and thé error of withdrawing the question of manslaughter from the consideration of the jury was immaterial.- The question of murder in the first degree not being before us, and an intentional homicide having been admitted by the prisoners on the evidence in this ease, the law presumes the killing to be murder in the second [716] degree, and it must be so declared, unless from the entire testimony the prisoners satisfy the jury that the killing was excusable on the plan of self-defense, or of facts which mitigate the crime to manslaughter. State v. Smith, 77 N. C., 488. In that case, Fairecloth, J., speaking for the court, says: “Homicide is murder unless it be attended with extenuating circumstances which must appear to the satisfaction of the jury. If A assaults B, giving him a severe blow or otherwise making the provocation great, and B strikes him with a deadly weapon and death ensues, the law in deference to human passion says this is manslaughter;” and the case further states if the “provocation be slight and it can be collected from the weapon used or any other circumstances that the prisoner intended to kill or do great bodily harm and death follows, it is murder.” Foster’s Crown Law, 291. It cannot be contended here that this is a case of excusable homicide. Two strong, vigorous and determined men, in the presence of a boy just grown, called him from his bed about daylight in the morning, without arms or means of defense. They were near enough to have seized the deceased at any time during the difficulty, and could have easily overpowered him. The killing was without necessity, and there is no statement or claim by the prisoners that they or either of them were in reasonable apprehension of bodily harm at any time.
Thomas White’s evidence:
Q. You shot him in the back of the head when you could have caught and held him ? A. I could have caught him.
Q. You say you did not want to hurt him; then why didn’t you catch him and keep from hurting him — two great large men like you were? A. Because he attacked us.
Q. You were mad then? A. No, not mad.
Q. Not mad, and yet you preferred to shoot him in the back of the head instead of holdina' him ? A. I shot him be[717] cause of tbe fight on band. My brother was not struck at all; neither of us hit.
Q. And yet you shot and killed young Sherrill ? A. Yes, I shot once, and I do not know how many times my brother shot.
Nor is there any well considered principle of manslaughter to which the conduct of the prisoners could be reasonably referred. It is contended first that there was a fight between the parties and that the homicide should be referred to the anger aroused by mutual combat. It is true that when men fight upon a sudden quarrel, and one kills the other in the heat of passion aroused by the combat, the law ordinarily refers such a homicide to the anger and considers the killing a case of manslaughter. The doctrine, however, has' this limitation: That the combatants must fight on equal terms, at least at the outset, and no unfair advantage must be taken.
In Russell on Orimes, p. 129, it is said: “Where the combat is not an act of deliberation, but the immediate consequence of sudden quarrel, it does not of course come within the foregoing doctrine, yet in cases of this kind, the law may come to the conclusion of malice if the party killing began the attack with circumstances of undue advantage; for, in order to save the party making the first assault upon an insufficient legal provocation from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be put on an equal footing in point of defense, at least at the outset, and this more particularly where the attack is made with deadly and dangerous weapons.”
Again, the same author says on page 131: “If after an interchange of blows on equal terms one of the parties on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will be only manslaughter * * *. But if the party at the beginning prepared a deadly weapon and has at the time the power, of using it in some [718] part of the contest, and uses it accordingly in the course of the combat and kills the other party with the weapon, such killing will be murder.”
And Bailey, J., in charging a jury, in an indictment for malicious cutting, said, among other things: “If persons meet originally on fair terms and after an interval, blows having been given, a party draws in the heat of blood a deadly instrument and inflicts a deadly injury, it is manslaughter only. But if a party enters in a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter.but murder.”
Accordingly in State v. Ellick, 60 N. C., 450, we find it declared: “If, on a sudden quarrel, the parties fight by consent at the instant with deadly weapons and one is killed, it is but manslaughter, provided the parties fight on equal terms and no undue advantage is taken, for the fairness of the fight rebuts the implication of malice and the law mitigates the offense out of indulgence to the frailty of human nature.” And, applying the principle it is there held, “That where words passed between the prisoner and the deceased who were sitting on a door sill, and the prisoner got up; the deceased then got up and reached his hand inside the door and got a stick, which was a deadly weapon, and as he was turning around with the stick the prisoner stabbed him with a bowie knife, it was held to be murder.” To the same effect is Price v. State, 36 Miss., 531.
In several of the decisions establishing the limitation here stated, the weapon was concealed and mention is made of this fact. But the principle underlying the decisions seems to be that the party commenced the fight with a deadly weapon previously prepared and fought at an undue advantage.
The principle then, by which an unlawful and intentional homicide is under certain circumstances mitigated to manslaughter by reason of the anger aroused in mutual combat, has no application here. The prisoners armed with deadly [719] weapons commenced the fight on unequal terms, fought' throughout at undue advantage and killed without necessity. Their conduct can receive but one construction: they intended from the beginning of the combat that it should have a fatal termination. Again, it is urged that the prisoners are entitled to have this view presented: that the deceased caused a final difficulty by making an assault on the Whites; that he had acquiesced in their demand and all had become peaceful and quiet, when the deceased provoked a further altercation by advancing on Chalmers White, was in -the attitude of striking him and that in the anger aroused by that assault the deceased was slain. But we do not think that any such position is open to the prisoners in their testimony or that it has support either in law or fact. In the first place, there was no such pause in this heartrending occurrence, which permits its division into two altercations. The whole affair did not occupy five minutes of time. Chalmers White testified (p. 54, record) : “Erom the time we struck the porch till he came down, I presume the whole time would be about four or five minutes before he was lying on his back on the floor dead.” Allowing a reasonable time for the deceased to dress and come to the porch, the time consumed in this fateful interview was indeed short. "When the deceased said he would not marry their niece, he “did not love her,” both men drew and presented their pistols. The deceased then said he would marry her. Thomas White then seems to have put his pistol up, but this is left uncertain by the testimony. Iiis evidence is as follows: “I read about where my shot hit him, read about it. He was then with his face towards my brother. I could not have shot him in the back of his head from in-front of him. I do not know whether he had anything in his hand or not. I did say he was attacking my brother. My brother had a pistol; I do not know where he got it; when he got up from the chair he assumed a threatening attitude; we never put the pistols back in our pockets; had them in our [720] bands. We did not bave tbe pistols drawn until be made tbe attack. We bad them in our bands but did not bave them covered on him. We bad them in our bands for protection.”
Q. And then you shot him not from wbat be bad in bis band, but because be was attacking your brother. A. I saw there was a fight. I did not stop to see wbat kind of a fight.
Q. You shot him in tbe back of tbe bead when you could bave caught and-held him. A. I could bave caught him.
Q. Didn’t you say you didn’t want to hurt him; then why didn’t you catch him and keep from hurting him — two great big men like you ? A. Because be attacked us.
Q. You were mad, then? A. No, not mad.
Q. Not mad, and yet you preferred to shoot him in tbe back of tbe bead instead of bolding him ? A. I shot him on account of tbe fight on band; my brother was not struck at all; neither of us bit.
Q. And just for that, killed young Sherrill? A. Yes, I shot once, and I do not know bow many times my brother shot.”
But Chalmers White never put up bis pistol till tbe fatal shots were fired. Tbe deceased was then standing on his own porch, with one armed man on either side, and not allowed to withdraw from their presence even to go into bis own door — one of tbe men, at least, keeping bis pistol in evidence all of tbe time. There was never any pause in this scene, and not for one instant any change of attitude. Here again tbe conduct of tbe prisoners can receive but one reasonable construction, “Do wbat we demand and do it now, or your life is forfeited.” Any inference, therefore, which depends upon tbe position that tbe deceased was tbe aggressor by bringing on a second altercation, in which be was killed, has no basis in fact and cannot be maintained. And if it were otherwise, if tbe deceased did bring on a second altercation, any assault be may bave made, under tbe circumstances just stated, was entirely insufficient provocation to [721] mitigate this killing to manslaughter. The deceased bad no knife, and neither of the prisoners says that he had. They do not swear that they thought so. , There is nothing but a suggestion that he might have had one. Here is the testimony of Chalmers White: “I then turned and walked back to Sherrill and told him to come on and go with us. He then seemed very angry and began to advance and said, H will die first.’ And as he said that he sprang towards us and forward, and I shot him. My brother fired, I think, about the same time. I do not know who shot first. We shot nearly at the same time. He was very near to me. I thought he was going to strike me with something when he advanced; he was in a striking attitude and an angry frame of mind. I think he was going to strike me because he was rushing on me and I thought I saw something. He could see that I was armed and I thought he was armed, and I did not think he would attack me unless he was. I could not see the knife in his hand. He could have had a knife or something, I ■could not see; it was a dark, cloudy morning.” Again, this witness testified: “When he sprang up we both drew our pistols on him. I did not see any knife up to that time. I ■could not see what he had in his hand.”
Q. Did you see anything in his hand ? A. I could not tell what he had in his hand.
Q. Did you see the knife? A. He had his hand thrown back this way (striking attitude), drawn back as though to ■strike. I could not see what was in his hand.
Q. Was there anything in his hand? A. I did not know what he had in his hand: I thought there was something in his hand; I could not tell what it was.
Q. Couldn’t you have seen the flashing of a knife blade ■as he drew back to strike ? A. If was dark and cloudy. I •could not see. He could have a knife and I could not have ¡seen it.
[722] Q. Will you swear be bad anything in bis band? A. I thought be bad something in his band.
Q. Will you swear that be had a knife ? A. He bad something ; I could not tell what it was.
Q. Was it long or short? A. I do not know. I can’t tell whether it was long or short or anything about it; it was something.
Q. Was it black? A. I can’t tell. I cannot describe what it was.
And Thomas White testified: “I had side-stepped and kept in a direct line with Sherrill, because I did not know what was going on at that time, nor what he was going to do. He continued to advance on my brother and drew back as if to strike. At the moment he did that, he sprang forward, and that put him just in front of me, or diagonally in front. I drew my pistol and we both fired about the same time. He had his hand in a striking position. I do not know whether he had a pistol or not. I could not see whether there was a knife in it or not.”
The mother of the deceased said that the deceased never raised his hand except to ward off the pistol. But, put it as the prisoners claim and on the facts of this case as disclosed by the testimony, suppose he did raise his hand as if to strike and was shot down, both prisoners firing at the same time. This was no such provocation as the law deems adequate" to reduce the grade of this offense.
In Clark on Criminal Law, p. 197, it is said: “Voluntary manslaughter is where the act causing death is committed in the heat of sudden passion caused by provocation. The provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man. The act must be committed under and because of the passion.” Again at page 198: “Intentional killing is manslaughter if it is committed under and by reason of a passion caused by ■what the law deems sufficient provocation. The law does [723] not merely look to see if a man was provoked and enraged, and, if so, reduce bis crime to manslaughter; but it also looks at the provocation and does not excuse him at all if it was inadequate to excite his passion. The provocation must be sufficient 'in the eye of the law, or it is murder. Again, on pp. 203, 204: “In all cases the mode of resentment must bear a reasonable proportion to the provocation." A homicide is not reduced to manslaughter where a deadly weapon is used, unless the provocation was explicit.
To the same effect, State v. Smith, supra; State v. Chavis, 80 N. C., 353.
The suggestion that if there be a reasonable doubt as to which one fired the fatal shot, both must be acquitted, cannot be sustained. The prisoners may have gone to the house without any purpose to kill or do unlawful violence. They had a common purpose and when they drew their weapons they entered on that purpose unlawfully and were so manifestly acting together, one in the aid of the other, that a killing by either, under the facts of this case, would inculpate both.
The court is of opinion that there is no reversible error disclosed in the record and the judgment of the court below was correct.
No Error.