Appeal
from Superior Court, Pasquotank County; Justice, Judge.
Actions
by W. O. Saunders and Columbia Saunders against Oliver F
Gilbert. From judgments for plaintiffs, after consolidation
of the actions, defendant appeals. Affirmed.
The
court instructed that if defendant fired through a reasonable
apprehension that he was in danger, or that a felony was
about to be committed, he would not be guilty of assault or
trespass; that if plaintiff fired to protect himself, and
defendant fired in a reckless manner, without reasonable
apprehension that any one was to suffer from plaintiff
defendant would not be guilty of an assault or trespass. Held
that, if defendant thought himself entitled to an instruction
that one exercising self-defense may act upon appearances, or
the facts as they appear to him at the time, he should have
requested it.
These
are actions, one by the plaintiff W. O. Saunders, and the
other by his wife, Columbia Saunders, against the defendant
for trespass and assault. They were consolidated and tried
together, resulting in a verdict and judgment for the
plaintiffs, from which the defendant appealed. As the parties
differ materially as to the nature of the evidence, it
becomes necessary to state it at some length, all of it
having been introduced by the plaintiffs:
The
plaintiff Columbia Saunders testified: "I live on
Cypress street, and have lived in this town since I was a
child; am the daughter of John Ballance and wife of W. O
Saunders; have known the defendant 12 or 13 years; was once
a clerk in his store about three years, and for Mitchell,
his brother-in-law, in which the defendant was a clerk, for
about five years. On July 31, 1910, I was at home alone in
my house until about 9 p. m., and was on the porch when my
husband came, a large crowd of people following him, from
church; some in front and some behind him. My husband came
in the gate and closed it; heard Gilbert's voice. He
said to Mr. Saunders, 'Will give you 24 hours to leave
town."' Plaintiff was then asked. "What did
the crowd do?" Defendant objected. Objection overruled
and defendant excepted. "A. The people leaned up
against the fence, and I heard other threats. My husband
told them to leave, and the first man who came in the yard
he would shoot. I was in the light, and had on a white
dress; saw a large crowd--two or three hundred people--and
heard some one in the crowd say, 'Get him now.' My
husband fired upwards from the doorstep towards treetops. I
then pulled him on the porch, and some firing began on the
street. A bullet struck the wall, just did miss me. I saw
the flash. Another bullet struck the piazza post
immediately in front of me, and between me and the person
firing. If the bullet had not struck the post, it would
have hit me. Q. What did any one say? A. Just as Mr.
Saunders got inside the gate, some one said, 'That was
all that saved you.' (To this question and answer,
defendant objected. Objection overruled, and defendant
excepted.) Two bullets struck the house, and one struck the
fence. The crowd seemed angry; saw no arms, except flash of
pistol. It made me nervous, and I was nearly wild; did not
sleep that night; have not gotten over it yet; sent for Dr.
McMullan, and he came. Q. What did Dr. McMullan say he gave
you? (Defendant objected; objection overruled; defendant
excepted.) A. He said it was morphine. Q. How did he
administer it. A. He put it in my arm. It did not put me to
sleep. There were several others saw me, among them Mr. and
Mrs. Simons and Mr. and Mrs. White. I was screaming and
crying, and could not eat or sleep any scarcely for about a
week. I had a baby about five months old and two other
children, three and five years old, in the house with me. I
am still afraid to sleep without doors and blinds closed.
On Monday I sent for Dr. Fearing."
Cross-examined,
she testified: "This was on Sunday night immediately
after service. Some people always passed my house going from
church, but no large crowd like this. Mr. Saunders'
father was with him, and went in the yard when he did. No one
else came in the yard. The gate was 10 or 15 feet from the
porch. Mr. Saunders came to about the bottom of the step and
fired two or three times; nobody else had fired before he
shot. He fired twice. I don't know whether he fired the
third shot then or a little after. Then the firing was from
the street. I pulled Mr. Saunders in just after he had fired
I closed the door when he went in; don't know whether it
was before the third shot or not. He went upstairs, and left
me on the piazza. Mr. Saunders had been to Blackwell
Memorial Church. Nobody attempted to go into the gate, but
pushed against the fence in a threatening manner. Mr.
Saunders had not been in the house, since he left to go to
church, until after the firing began."
Edward
Brinson testified: "I have lived in Elizabeth City 17
years; know defendant. On July 31, 1910, was at Blackwell
Memorial Church; saw W. O. Saunders there; did not see
Gilbert at church. I came out on sidewalk, and saw it was
full of people, and I got into the street in front of
Saunders' house; heard some one say, 'Stop,' or
'Halt.' Some one in the yard fired. It was Saunders
who shot; held the pistol and fired up above the crowd. I saw
Gilbert fire towards the house. I dodged around Gilbert, and
heard several shots from where Gilbert was standing near the
oak. Gilbert kind of leaned forward when he fired. I ran. I
heard no threats. The street and the sidewalks were full of
people, some walking leisurely, some fast, and some
running."
J. M.
Ballance testified: "I met O. F. Gilbert on the street
Monday, July 25, 1910, a week before the occurrence, and had
a talk with him. He said, 'I understand you have stock in
the Independent.' I said: 'No, I have not; all I have
done is to sign Saunders' bond to keep him out of
jail.' He said, 'I want to tell you that I want to
withdraw from you, if you have any stock in it.' He said,
'Why don't you help to stop this man [referring to
Saunders] from talking about your pastor?' I said, 'I
have nothing to do with that.' I said something, and he
said, 'Don't you think, if I am going to kill a man,
it is my place to warn him beforehand of it?' Saunders
was editor of the Independent. On the 31st, at night, I was
at Blackwell Memorial Church. I went towards home along
Cypress street. When I got about 80 feet of Saunders'
house, some one fired two shots upward from Saunders'
doorsteps; then there were four shots fired from the street
towards Saunders' house, in quick succession, from near
the oak. I went home, and then back to Saunders' house.
Mrs. Saunders was very nervous. I stayed there that night
with the chief of police and a guard. I am half-brother to
Mrs. Saunders. I saw three bullet holes, but saw no bullets;
saw the glancing dents in the wood. I was 80 feet away; no
one between me and the party firing on the sidewalk. I heard
Saunders say he fired three times before any one else shot.
When Saunders drew his pistol, the people on the sidewalk and
on the street began to run. I am on Saunders' prosecution
bond."
Mr.
Matthews testified: "I live six or eight hundred feet
from Saunders' house. Was in front of my gate and heard
two shots, and four to six more. I went to Saunders'
house. The street was full of people, in groups; considerable
excitement; saw Mrs. Saunders. She was greatly distressed--on
the porch wringing her hands and appealing for help."
Dr.
Zenas Fearing testified: "I know plaintiffs. As mayor of
Elizabeth City, I was phoned to come to Saunders' house
Sunday night, and went as mayor and not as physician. Mrs.
Saunders was very nervous and on the verge of collapse. This
was on Sunday night. Dr. McMullan was there Sunday night. She
was nervous. On the 2d of August, saw Mrs. Saunders
professionally, and treated her for nervousness."
Charles
Reid, sheriff of the county, testified: "Was at church,
and was going home; heard the shots--three shots--then four
or five; went to the house of Saunders. Mrs. Saunders was
nervous, and asked me to protect her; stayed there until the
crowd dispersed. I left guard around the house."
Plaintiff
rests, and defendant introduced no evidence. The court, after
reading the evidence to the jury, stating the contention of
the parties, respectively, among other things, charged the
jury as follows:
"(1)
If you find that Gilbert fired the shots towards the house
through a reasonable apprehension that he was in danger of
serious bodily harm from Saunders, or if he fired the
shots, believing that a felony was about to be committed,
then Gilbert would not be guilty of committing a trespass
as charged in the complaint, and it would be the duty of
the jury to answer the issue as to trespass,
'No."' Defendant excepted.
"2.
If you find that Gilbert fired the shots toward the house
under a reasonable apprehension that he was about to suffer
serious bodily harm himself, or that a felony was about to
be committed, then he would have had a right to so fire the
shots, and he would not be guilty of assault or trespass,
as charged in the complaint, and it would be the duty of
the jury to answer the issue as to assault and trespass,
'No."' Defendant excepted.
"3.
If you find that the plaintiff W. O. Saunders fired the
shots in the air above the heads of the crowd for the
purpose of protecting his home and frightening the crowd
away, and protecting himself from serious danger, and the
said defendant fired the shots in the direction of the
plaintiffs, in a reckless manner, without having any
reasonable apprehension that he or anybody else was about
to suffer from Saunders, then you should answer the issue
as to unlawful
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