State v. Dunning

Decision Date12 March 1919
Docket Number89.
Citation98 S.E. 530
Parties177 N.C. 559, 3 A.L.R. 1166 v. DUNNING. STATE
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Bertie County; Kerr, Judge.

I. W Dunning was convicted of assault with a deadly weapon, and he appeals. Error.

In a prosecution against a peace officer for shooting and wounding prosecuting witness whom he was attempting to arrest for a misdemeanor under a warrant, evidence held not to support a direction that defendant was guilty as a conclusion of law.

This is an indictment for an unlawful assault with a deadly weapon on one C. T. White, while defendant, as constable and chief of police of the town of Aulander, was endeavoring to arrest the said prosecutor C. T. White for disorderly conduct in breach of the criminal law.

On the trial the defendant testified in his own behalf, and at the close of all the evidence the court charged the jury as follows:

"Gentlemen of the jury, if you believe the evidence of the defendant I. W. Dunning, himself, I charge you that he is guilty and, if you so believe it, you will say guilty for your verdict."

Verdict of guilty. Judgment, and defendant excepted and appealed.

Winston & Matthews, of Windsor, and Alex Lassiter, of Aulander, for appellant.

The Attorney General, Frank Nash, Asst. Atty. Gen., and Winborne & Winborne, of Murfreesboro, for the State.

HOKE J.

There was evidence on the part of the state tending to convict the defendant, but the same does not accompany the record, as no exception is made concerning it.

For the defense I. W. Dunning, a witness in his own behalf, testified as follows:

"I am the defendant. I have lived near and in Aulander, Bertie county, all my life. I am now 24 years old. Some three years ago I moved to Aulander, to be near a physician for treatment. I went to Norfolk and underwent an operation and came back to Aulander. I have not been strong since then. The commissioners of the town of Aulander elected me constable and chief of police of the town. There was no other constable of the town nor any other policeman. I was the only one. I have known C. T. White all my life. He was then living in Aulander, and had been living there a number of years. His reputation was that when under the influence of liquor he was a desperate and violent man. I know that of my own knowledge, because I had frequently seen him in that condition. He had been indicted for repeated assaults and for cutting people, and had been convicted. At the May election of this year in Aulander I was re-elected constable by the people of the town. On the day in question, about 4 o'clock in the afternoon, complaint was made to me that C. T. White was drunk on the street, violently noisy, and profane in the presence of the public and of ladies passing on the street. I went up the street and found him at the Main street crossing of the town, within a few yards of the post office, in the heart of the business section of the town and of the bank, and in the very center of the business part of the town. I went up to him. He had an open knife in his hand and was noisy and cursing. I ordered him to cease cursing and advised him to go home. I did not want to have to put him in the lockup, and thought I could get him quiet. He did quiet down for a few moments, and came up to me and said he wanted me to give him his liquor. He claimed that he had been to Kelford and brought back two quarts of liquor, and said I had taken it. I told him I had not done so. He demanded that I let him search me, and to satisfy him I did so. He felt in all my pockets until he came to the one in which I had my pistol, as I was then on duty. I told him he could not go in that pocket. Then he began to curse and abuse me, and called me a most foul and loathesome name (too foul for this record). I backed back from him. He had me by the hand and was attempting to cut me. I was trying to arrest him. This kept up for several minutes. Finally the mayor came up and quieted him down. Later he went in the barber shop and commenced raising a row and cursing Mr. Early, who was in the barber shop. Early finally got him down on the floor. I went to arrest him, and Early and his relatives said if I would let him alone they could get him to go home. He was quiet for but a moment, and came out in the street and commenced cursing Early and myself and threatened to kill us both. He had his open knife in his hand. I dodged about the town to keep out of his way. He completely terrorized the town. All the above occurred about three to four hours before I shot him. People came to me and complained, and finally about 10 o'clock Mr. A. T. Castellow, the mayor of the town, brought me a warrant charging disorderly conduct or a misdemeanor, for the arrest of C. T. White, and told me to go at once and arrest him and bring him before him. During the early part of the evening, and again after I got the warrant, I called on several persons to go with me to assist in making the arrest. They all declined because they said they knew his desperate and dangerous character when under the influence of liquor, and they did not propose to get cut. I finally got a man to go with me. Then White was passing down the street with one Cox, and going in the direction of the Cox place of business--his restaurant and poolroom. I heard him cursing and threatening to kill me and Early. He was violent; cursing and noisy. He went in the Cox place of business and took a seat by the stove. It was a store some 70 feet deep. In the back was a poolroom. Some young boys were there playing pool. The stove was in the middle of the house, between the counters, and about 20 feet from the door. I went in with my warrant in my hand. I then had my pistol in my
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