State v. Ellick.

Citation2 Win. 56,86 Am.Dec. 442,60 N.C. 450
CourtUnited States State Supreme Court of North Carolina
Decision Date31 December 1864
PartiesTHE STATE v. ELLICK.
OPINION TEXT STARTS HERE

If, on the trial of an indictment, witnesses are examined by the State, and other witnesses are examined by the accused to maintain his defence, and the Judge instructs the jury that if they believe the witnesses on either side, the accused is guilty, this Court considers the charge only in its application to the evidence offered by the accused, and assumes everything to be proved on his part whioh a jury would be at liberty to infer from that evidence.

If two men fight on a sudden quarrel, with deadly weapons, and one strikes the other a mortal blow before the person so stricken is prepared to use his weapon, the killing is murder; and so it is if any unfair advantage be taken; and if one uses a stick and the other a knife or a pistol, they do not fight fairly and on equal terms, and, therefore, the party killing is guilty of murder.

The cases of Gaither vs. Feribee, 1 Winston, 315, and State vs. Norton, Id., 305, cited and approved.

This was an indictment against Ellick, a slave, for the murder of another slave, Cornelius, tried before FRENCH, J., at Fall Term of Granville Superior Court, 1864.

Micajah, a slave, a witness on the part of the State, swore that one night in the last summer, he had a quarrel with the prisoner, about the prisoner's having been attacked by a dog, a week before. He and the prisoner fought--he threw the prisoner down, and seeing the prisoner feeling for his knife, he left him--shortly afterwards he saw the prisoner seated on the door sill with the deceased; he heard some words pass between the two, but did not hear what they were. He saw the prisoner get up, and immediately afterwards the deceased arose, and as he rose, prisoner made a thrust at him with both hands, and witness saw the blow strike on the left side of deceased, who, immediately after receiving the blow, reached his hand inside the door and took a stick and knocked prisoner down. The deceased died of the wound. The stick which the deceased used was admitted by the State to be a deadly weapon. Other witnesses for the State swore to the same general effect as Micajah.

Witnesses were examined on the part of the prisoner, who testified to the facts stated in the opinion of the Court.

The counsel for the prisoner requested the Court to charge the jury, that if they had a rational doubt from the evidence, whether the killing was done with malice, that the prisoner was entitled to the benefit of that doubt, and they should find the prisoner guilty of manslaughter only. The Court refused to give the instruction. The counsel for the prisoner further requested the Court to charge the jury, that if the fatal blow was given by the prisoner, after he was stricken with the stick by the deceased, that it was manslaughter, only. The Court declined to give the instruction, because there was no evidence to sustain it. The Court instructed the jury, that upon the evidence of the witnesses on the part of the State, or of the prisoner, the killing was murder.

The counsel for the prisoner excepted to the charge of the Judge.

The jury found the prisoner guilty. And from judgment accordingly the prisoner appealed.

Attorney General for the State.

Eaton for the prisoner --In substance and effect the Judge instructed the jury that according to the whole of the testimony and that of each witness, this was a case of murder, and that there was no evidence, however slight, tending to prove a legal provocation. It is insisted, in behalf of the prisoner, that the charge is erroneous, and that it is in conflict with the act of 1796, and the views of this Court in the case of the State vs. Allen, 3 Jones, 257. In that case the Chief Justice, in delivering the opinion of the Court, uses these words: “A Judge is not at liberty to express an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury; but if there by any competent evidence, relevant and tending to prove the matter in issue, it is ‘the true office and province of the jury to pass upon it; although the evidence may be so slight that any one will exclaim, ‘certainly no jury will find the fact upon such insufficient evidence,’ still the Judge has no right to put his opinion in the way of the free action of the jury, even should he deem it necessary to do so, in order to prevent them from being misled by the arguments of counsel or their own want of apprehension.”

Before commenting on the evidence set forth in the bill of exceptions, I will make a remark or two on the law of murder and manslaughter in connection with this case. If a distinction of any practical importance is to be recognized between homicide committed with malice, and a killing where the fatal act is the result of a sudden transport of passion which may be regarded as an incident to human infirmity, if there be any substantial difference between a killing from the wickedness of the heart, and a killing under the influence of the ordinary frailties of our nature, it must follow, upon principle, that an assault with a deadly weapon will extenuate a homicide to manslaughter, even though the party slaying may use a deadly weapon himself.

What is an assault? If A advances in a threatening attitude towards B to strike him, and is stopped just before he is near enough for his blow to take effect, it is an assault. Stephen vs. Myers, English Common Law Reports, vol. 19, page 414. This case is cited as authority by enlightened elementary writers. See Arch. Crim. Pleading, 417; Greenleaf on Evidence, 3 vol., 57. It is also referred to with respect and approbation by Judge Gaston in the case of the State vs. Davis, 1 Ire., 125. If the law is truly stated in the case of Stephen vs. Myers it must follow, upon principle, that if A reaches after a stick and turns round to strike B with it, who is already within striking distance, it is an assault, though B may strike him before he can accomplish his purpose.

There is evidence in the statement of the witness, Harriet, tending to show that the deceased committed an assault, with a deadly weapon, upon the prisoner immediately before the mortal wound was given. She says, “the prisoner sat on the door sill by the deceased. Witness heard some words pass between them, but does not recollect what they were. The prisoner got up first. Cornelius rose up and reached his hand inside the door and got his stick. As he was turning round prisoner struck him on the left side. Witness heard the rip.” The prisoner, to use the language of the Court in the case of the State vs. Allen, has a right to insist that the testimony should be taken in the point of view most favorable to him; and that if, in any aspect of the evidence, it is consistent with his being guilty of manslaughter only, there was error in the manner in which the case was put to the jury. In reference to the evidence of Harriet, if she had been the only witness, the proper charge would have been that if the prisoner had reasonable ground to believe that the deceased reached after the stick and turned round to strike him with it, it was manslaughter.

Such an instruction would have been proper upon the whole of the evidence together. That the deceased reached his hand inside of the door for his stick (admitted to be a deadly weapon) is proved by Micajah, George and Harriet. That it was his purpose to strike the prisoner with it, is proved by Micajah and George, both of whom say, that he knocked him down three times with the stick. Jack also proves that the deceased struck the prisoner with it. Micajah and George state that the stick was reached for after the wound was inflicted on the deceased, but Harriet's evidence, if believed, shows that it was before. Whether the reaching for the stick was before or after the wound was inflicted, was a question of fact and not a question of law; a question for the jury, and not one for the Court. A jury may believe a witness in part, and disbelieve other parts of his testimony, as founded in mistake or perjury. They may, and often do, believe one witness as to a part of a transaction, and reject his statement, and adopt that of another witness as to other parts of the transaction. Suppose that they should believe Harriet as to the time when the stick was reached after. Suppose they should then reject the improbable statement of George, as to the conversation which preceded any acts of violence on either side. They might well do so, for he says he heard prisoner say to deceased you have all laid up to whip me about that dog,” to whom the deceased replied, “whom do you mean by you all?” Prisoner replied, “I mean you, and nobody else, and I will fix you for it now.” Suppose then, that they should believe Micajah, George and Jack as to the purpose for which the stick was obtained and used, we then have this case: A reaches after a deadly weapon to give B, who is very near him, a violent blow. B anticipates him, and stabs him with a dirk in the left side, whereupon A, not deterred by the wound, knocks B down three times with a bludgeon. Here would certainly be a case in which the party slaying cannot be guilty of anything more than manslaughter. The question is, not whether an intelligent jury would come to the conclusions on the facts of the case which I have mentioned, or whether the weight of the evidence would warrant them in so doing, but whether they had not a right, as triers of the facts, to come to such conclusions, or whether, in other words, there was any proof, however slight, tending to establish these views of the transaction.

I have said that Harriet's evidence, if believed, shows that the reaching after the stick was before the wound was given. It is true, that she does not, in the case made out by the Judge, say, in so many words, that it was before, but it is clear that such was her...

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