State v. West
| Decision Date | 31 August 1859 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. AVERY WEST. |
Whether an instrument or weapon be a deadly one, is, at least generally speaking, for the decision of the Court.
An instrument, too, may be deadly or not according to the mode of using it, or the subject on which it is used.
The actual effects produced by the instrument may aid in determining its character, and in showing that the person using it ought to be aware of the danger of thus using it.
Hence, it was Held that an oaken staff, near three feet long, of the diameter of an inch and a half or two inches, with which three blows were stricken upon the head of a man while drunk and unawares, shattering the bones of the head, and rupturing the interior vessels of the brain, was a deadly weapon, and a killing the use of it in that way, was murder.
INDICTMENT for the MURDER of one Joseph Pope, tried before MANLY, J., at the Spring Term, 1859, of Burke Superior Court.
One Henry Deal, who was present at the transaction, testified that he was the owner of a distillery, in the county of McDowell, about two miles from his residence; that on the first day of March, 1858, the deceased, with the prisoner and two others, Glass and Moss, were at the still-house, after night; that the party had been drinking, and were all excited with liquor, except the witness himself; that the deceased, Pope, was more intoxicatod than the others; that after night, Glass and Moss sat down to cards, playing on the head of a half bushel measure, and the prisoner and Pope were seated on a log, side by side before a fire which was made in front of the furnace of the still; that the prisoner and the deceased began to boast of their manhood, when the prisoner said to Pope,--“If I were to fight you, I would not fight you a fair fight”; to which the other said, he was not afraid of him, for that he had nothing but a knife or a pistol, and he was not afraid of them; that when this was said, the prisoner arose and stood at the corner of the fire, where there was a stick of oak, used as a poker for the still-fire; that the deceased still continued to sit on the log without seeming to notice the movements of the prisoner; that the deceased soon appeared to be quite drunk, his head hanging forward with his face downward; that he, Pope, said Glass was cheating Moss, and swindling him out of his money--that glass said he was not; to which the deceased replied with an oath, calling Glass a liar; that Glass then seized the half bushel measure, and both he and Moss rose to their feet; that at that moment the prisoner struck Pope with the oak stick two blows on the head; then struck Moss and knocked him down, and then turned and struck a third blow at Pope, who was by this time prostrate on the ground; and Glass put the half bushel measure down without using it; that the prisoner stamped, or attempted to stamp and kick the deceased, until he was prevented by Glass, and witness; that when the blows were given, the deceased was sitting on the log as described, without appearing to know what was going on.
The witness Deal, produced the stick which was examined by the Court, and was admitted by the prisoner's counsel to be that with which the wounds were inflicted. It was oak, of ordinary hardness and solidity, a little short of three feet in length, and from one inch and a half to two inches in diameter. Deal further stated, that the body of the deceased appeared to be in an insensible state during the night, and nothing was done except to dispose of the body before the fire and to raise the head by putting under it a piece of wood with his hat upon it.
One William Walker, said he was passing the distillery on the night in question, and ...
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State v. Jennings
...the subject on which it is used. For example, in a fight between men, the fist or foot would not, generally, be regarded as State v. West, 51 N.C. 505, 509 (1859). See also State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981) ("any article, instrument or substance which is lik......
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State v. Elliott
...the "willful blow by an adult on the head of an infant." State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (1987); accord State v. West, 51 N.C. 505, 509 (1859); State v. Sallie, 13 N.C.App. 499, 510-12, 186 S.E.2d 667, 674-75, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972). Malice i......
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State v. Torain, 284A85
...Court must take the responsibility of so declaring." State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924) (emphasis added); State v. West, 51 N.C. 505 (6 Jones) (1859); State v. Roper, 39 N.C.App. 256, 249 S.E.2d 870 (1978). In fact, where the trial judge has left to the jury the que......
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State v. Steen
...infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue. State v. West , 51 N.C. 505, 509 (1859) ; see also State v. Lang , 309 N.C. 512, 525–26, 308 S.E.2d 317, 324 (1983) ("[I]f an assault were committed upon an infant of t......