State v. Barfield

Decision Date30 June 1848
Citation8 Ired. 344,30 N.C. 344
CourtNorth Carolina Supreme Court
PartiesTHE STATE v. JOHN BARFIELD.
OPINION TEXT STARTS HERE

It is perfectly settled that no words or gestures, nor any thing less than the indignity to the person of a battery or an assault at least will extenuate a killing to manslaughter. To constitute an assault there must be an attempt or offer to strike by one within striking distance.

On a trial for murder, evidence of the general character and habits of the deceased, as to temper and violence, cannot be received. The only exception to this rule, if there be one, is where the whole evidence as to the homicide is circumstantial.

An affidavit for the removal of a cause ought no more to be inserted as a part of the record, than one for a continuance.

It is not necessary that the record should shew a venire facias, either original or special, to the term of the Court, at which a prisoner is tried.

Th?? cases of the State v. Tilley, 3 Ired. 424, State v. Upton, I Dev. 513, Ballard v. Carr, 4 Dev. 575, State v. Reid, 1 Dev. & Bat. 377, State v. Seaborn, 4 Dev. 305, and State v. Laman, 3 Hawks 175, cited and approved.

The cases of the State v. Tacket, 1 Hawks 211, and the State v. Twitty, 2 Hawks 248, cited and commented on.

Appeal from the Superior Court of Law of Johnston County, at the Spring Term, 1848, his Honor Judge CALDWELL presiding.

The prisoner was indicted in Sampson County for the murder of Alfred Flowers, and, after plea, of not guilty, on his motion and affidavit, the trial was removed to Cumberland. He was there tried and convicted, but, upon an appeal to this Court, the judgment was reversed, and a venire de novo awarded. 7 Ired. 299. At the next term of Cumberland Court, in November 1847, the prisoner offered an affidavit on which he moved for another removal of the trial, and the Court ordered it to be removed to Johnston Superior Court.

On the trial the widow of the deceased gave evidence for the State, in substance, and almost literally, the same as that given by her on the former trial, as stated in the report of the case in this Court.

On the part of the prisoner, Robert Flowers was examined as a witness. He was a son of the deceased, and was 15 or 16 years old at the time of the homicide; and he stated: That he was not at home until late in the day, on which the homicide was committed; that when he went into the house, he saw the prisoner sitting on a table with a gun in his hand, and that he requested the prisoner to give it to him, and he immediately complied: that he went out of doors and when he came back, he found the prisoner lying on the bed, and that his father sent him to draw some liquor, and when he returned, he found his father sitting on a chair near the door: that some angry words passed between his father and the prisoner, and that the latter was standing near the middle of the room and cursed the liquor: that his father rose up and took a light chair in his hand and pitched it over the head of the prisoner without touching him and, as the witness believed, without intending to strike the prisoner: that in doing so, his father staggered and fell, when the prisoner rushed upon him instantly and stabbed him: that he did not see the prisoner have a knife in his hand, when he first came towards his father, but he saw the prisoner draw it from his pocket at or about the time his father raised the chair: that immediately after his father was stabbed, he got up and went towards the door, and the prisoner followed him, and stabbed him in the back, and his father then went to the bed, laid down, and in a few minutes died: that he did not see his mother assist his father to get up, or to get to the bed, and that he thought, if it had been so, that he would have seen it: that after his father was dead, he went out of the house and saw the prisoner at the gate, and asked him, “why he had killed his father?” to which the prisoner replied, “that if he did not clear out, he would send him off with a cut throat.”

The case further states, that the prisoner then examined as a witness John Flowers, another son of the deceased, a little younger than his brother Robert, and that he testified to the same facts, except that he said the prisoner was advancing on his father, when he raised the chair.

The counsel for the prisoner then offered to prove by a witness, who had formerly lived with the deceased, that his general character was that of a violent, overbearing, and quarrelsome man, and that such were his domestic habits. On objection made on the part of the State, the Court rejected the evidence.

On the part of the prisoner, a witness named Cobb was examined, and stated, that he was one of the jury at the coronor's inquest over the body of Flowers, and that Mrs. Flowers swore on that occasion, that she was not in the house, when the fatal rencounter took place, but that she became alarmed and had left the house before it happened.

On cross-examination he was asked, whether he had not told two persons, named Hicks and Lane, that Mrs. Flowers swore before the jury of inquest that she was in the house and saw the transaction; and he denied that he ever made such a statement to them or either of them. On the part of the State Hicks and Lane were afterwards called to prove, that Cobb did state to them, that Mrs. Flowers swore before the jury, that she was in the house and witnessed the rencounter. This testimony was objected to by the prisoner's counsel, but received by the Court.

The counsel for the prisoner insisted before the jury, that Mrs. Flowers was not entitled to credit; and that, taking the case on the testimony of the two sons, there was such a provocation, as mitigated the killing to manslaughter.

The presiding Judge charged the jury, that, if Mrs. Flowers was to be believed, the prisoner was guilty of murder. But if they did not believe her, then they would look to the testimony of Robert and John Flowers, in order to ascertain the degree of homicide: and in relation to their evidence, the Court stated to the jury, that if the deceased pitched the chair over the head of the prisoner without intending to strike him, and that was manifest to the prisoner, there was no such legal provocation as would mitigate the killing to manslaughter, but the prisoner would, in that view of the case, also, be guilty of murder.

The jury convicted the prisoner of murder; and his counsel moved for a venire de novo, because of the rejection of the evidence offered by him, and of the admission of that of Hicks and Lane to contradict Cobb, and for misdirection. The Court refused the motion, and, after sentence of death the prisoner appealed.

Attorney General, for the State .

J. H. Bryan, for the defendant .

RUFFIN, C. J.

Although it was not contended on the trial, that the offence of the prisoner did not amount to murder, if the account given by the widow of the deceased was true, yet, as the case comes here, that question is one of those to be considered by this Court. Upon it, we must say, that it admits of no doubt, that it was murder, according to her account. She stated, that, after some angry words on each side, the prisoner with his knife drawn approached the deceased, thrusting at him, and that the deceased then raised the chair, and pitched it over the others head, but without striking or intending to strike him, and that, in making that effort, he staggered from drunkenness and fell, and that then the prisoner, who, though he had been drinking, was not drunk, rushed on the deceased, while down, and stabbed him several times; and, moreover, that she assisted her husband to rise, and, that, after he had done so, the prisoner pursued him, and again stabbed him in the back once or twice. This represents the prisoner, in every respect as the aggressor, and grossly so: intending, and in the act of making on the deceased, a deadly assault with a drawn knife, as the beginning of the affray, and executing that intention (without receiving a blow from the deceased or an attempt to give one.) by stabbing the man to death, while he was helpless on the floor, or, after rising, while retreating. Thus represented, there is nothing in the transaction to extenuate the killing from murder of a very dark hue, perpetrated in a cruel and diabolical fury.

The character of the killing does not seem to be materially varied, in a legal sense, by the testimony of the sons. One of them said expressly, that the prisoner was advancing on the deceased when he raised the chair. The same is to be implied from the testimony of the other, “that he did not see the prisoner have a knife in his hand, when he first came towards the deceased, but saw him draw it, at or about the time his father raised the chair.” Then, it must be taken, that the prisoner, upon angry words, was advancing in a hostile manner upon the deceased, and drew his knife as he went, and that, at or about that instant, the deceased raised and pitched a light chair over the prisoner's head, without intending to strike him, but only in order to check the attack, and although it was “manifest” to the prisoner, that the deceased did not intend to strike him, and in fact he had not done so, that the prisoner continued to press on the other, who had reeled and fallen, and killed him by repeated stabs before and behind, the deceased being all the time down and unresisting, or retreating. If necessary, it might well be considered, whether a killing in this ferocious manner, a man in the condition of the deceased, would not be murder, though there had been a slight blow with a chair, given by him when so drunk and weak as not to be able to stand up, to another then advancing for the purpose of combat with a deadly weapon drawn before receiving the blow. But we do not pursue that view of the subject, because, in fact no blow was given to the prisoner, nor any intended; and therefore there could be no provocation to palliate the killing from murder, since,...

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12 cases
  • State v. Watson
    • United States
    • North Carolina Supreme Court
    • 6 Mayo 1975
    ...State v. Merrill, 13 N.C. 269 (1829); State v. Hill, 20 N.C. 629, 635 (1839); State v. Jarrott, 23 N.C. 76, 82 (1840); State v. Barfield, 30 N.C. 344, 349 (1848); State v. Howell, 31 N.C. 485 (1849). See also 7 Encyclopedic Digest of N.C. Reports, Homicide § 39 (1918). Defendant further con......
  • State v. Exum
    • United States
    • North Carolina Supreme Court
    • 21 Marzo 1905
    ...to the issue. This is the general rule, and has been declared in this state by repeated decisions of our highest court State v. Bar field, 30 N. C. 344; State*v. Hogue, 51 N. C. 381; State v. Chavis, 80 N. C. 353; State v. Craine, 120 N. C. 601, 27 S. E. 72; State v. Byrd, 121 N. C. 684, 28......
  • State v. Exum
    • United States
    • North Carolina Supreme Court
    • 21 Marzo 1905
    ...relevant to the issue. This is the general rule, and has been declared in this state by repeated decisions of our highest court. State v. Barfield, 30 N.C. 344; State Hogue, 51 N.C. 381; State v. Chavis, 80 N.C. 353; State v. Craine, 120 N.C. 601, 27 S.E. 72; State v. Byrd, 121 N.C. 684, 28......
  • Freeman v. Bryant
    • United States
    • Oklahoma Supreme Court
    • 19 Septiembre 1919
    ...to our own providing for the removal of causes in certain contingencies. And since Seaborn's case, as was said in the case of the State v. Barfield, 8 Ired. 344, it has been considered as settled that the assignment of the grounds for the removal need not appear in the record, but only the ......
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