State of North Carolina v. Gosnell

• Decision Date: 06 June 1896
• Citation: 74 F. 734
• Parties: STATE OF NORTH CAROLINA v. GOSNELL.
• Court: U.S. Court of Appeals — Fourth Circuit

74 F. 734

STATE OF NORTH CAROLINA v. GOSNELL.

United States Circuit Court, W.D. North Carolina.

June 6, 1896

Gudger Pritchard & Rollins, for the state.

R. M Glenn and W. W. Zachary, for defendant.

DICK District Judge (charging jury).

The defendant is charged with the murder of Peter Southerland, by an indictment found by a grand jury in the state court, and removed, under the provisions of an act of congress, to this court for trial. This court has no original jurisdiction of the offense charged, but the case must be tried in the same manner of procedure as cases originating in this court are tried. The law that defines the offense alleged is the criminal law that prevails in this state. The crime of murder is defined by statute in this state, and this court must be controlled by the interpretation of such statute made by the supreme court of this state, and must not extend or restrict such construction by implication. Act Feb. 11, 1893, c. 85. A state statute also declares that the common law, with certain specified limitations, shall be in full force in this state and the supreme court, in numerous decisions, has determined how far the common law is applicable in particular cases. At common law, when a homicide was admitted or proved to have been committed with a deadly weapon, the law raised the presumption that the act was done with malice aforethought and the burden of proof was on the defendant to rebut this strict, technical presumption of law to the satisfaction of the jury, but not beyond a reasonable doubt. State v. Willis, 63 N.C. 26; State v. Brittain, 89 N.C. 481; State v. Carland, 90 N.C. 668. The records of the criminal courts showed numerous cases of homicide where killing was done under sudden excitement caused by facts and circumstances that were not such legal provocation as would mitigate the homicide to manslaughter, and yet were well calculated to temporarily arouse the angry feelings and deadly passion of the slayer, yielding to the infirmities of human nature. The manifest intention of the legislature in carefully framing and enacting this statute making a distinction between murder in the first and second degrees was to mitigate the stern, inflexible, and bloody rule of the common law so as to meet the requirements of enlightened, humane, and Christian public sentiment in favor of human life and liberty. The application of the evidence in each particular case to the letter and spirit of this new rule of the law is wisely and imperatively entrusted to the intelligence, common sense, honest purpose, and impartial determination of juries, who, by long experience and observation, have become capable of judging of the impulses, motives, and designs of human conduct, and who will be guided in their deliberations by the advice and instruction of learned, upright, and humane judges, familiar with the application of rules of evidence in legal trials, and the construction and interpretation of statutes in the administration of justice. Several homicide cases in which the construction of the provisions of the act of 1893 was involved have recently been before the supreme court of this state, and well-considered and instructive opinions were delivered by that eminent court. In preparing this charge I have endeavored to be guided by such decisions cited in the argument, and references to such cases, and other cases found on investigation, will be inserted in the charge, before filed in clerk's office. State v. Fuller, 114 N.C. 885, 19 S.E. 797; State v. Norwood, 115 N.C. 789, 20 S.E. 712; State v. McDaniel, 115 N.C. 807, 20 S.E. 622; State v. McCormac, 116 N.C. 1033, 21 S.E. 693; State v. Gadberry, 117 N.C. 811, 23 S.E. 477.

Murder in the first degree is now confined to homicides committed by poison, by lying in wait, or while perpetrating arson, robbery, rape, or any other felony, and to cases where it is conclusively shown that the act was prompted by deliberate purpose, and premeditated malice and design. The use of a deadly weapon only raises a presumption of malice, and not premeditation and design. The elements of premeditation must be shown in evidence by the prosecution beyond a reasonable doubt. The strict, technical rule of the common law no longer exists in this state. The difference between express and implied malice is not in kind, but only in degree. Evidence of express malice tends to show a fixed and premeditated purpose, while implied malice raises no such presumption as to murder in the first degree. Such homicidal purpose can only be shown by clear and conclusive evidence. It must be more than intentional and willful. It must be deliberate and premeditated, and prompted by hatred, or some diabolical impulse of a heart regardless of human duty, and fatally bent on mischief. If a homicide is committed with malice, express or implied, but is not prompted by premeditation, then it will be murder in the second degree; and the defendant must rebut this presumption by proof showing that the act was done under legal provocation, or under such facts and circumstances as in law justified the action. Legal provocation reduces homicide to the degree of manslaughter. Words or conduct which are not legal provocation, but which are well calculated to arouse, and do arouse, sudden passion, will modify a homicide to murder in the second degree. Where the evidence shows previous threats or malevolent conduct of defendant towards deceased, which are insisted upon by the prosecution as evidence of express malice, the jury must consider carefully all of the attendant facts and circumstances of the occasion, to see whether such threats were called forth by sudden and temporary passion aroused by some immediate provocation, or by an antecedent, fixed purpose to kill at a future time. There is a clear difference in degree as to the weight of evidence tending to show the nature and extent of express malice. Antecedent threats, made upon some immediate provocation and in hasty passion, are not so heinous as hostile expressions showing a cool, persistent, and deadly purpose, subsequently manifested by plans and movements of deliberate and malevolent design. The jury should carefully consider such distinctions, and make just discriminations, as human experience has shown that threats are often made, under temporary excitement, without any purpose of ever carrying them into fatal execution. State v. Horn, 116 N.C. 1037, 21 S.E. 694. The jury should also consider the bearing of the proximate cause of the homicide, to see whether there was present any reasonable motive and cause, other than the previously expressed malice, that directly induced the homicide; as whether the defendant acted under sudden provocation or in self-defense, or in the proper execution of some lawful duty. When the facts proximately connected with the transaction show a legitimate motive and proper purpose as the immediate cause of the act done, the law will assign the deed to such purpose and motive, and will not readily admit that the homicide was the consequence of any preconceived malice. To do away with the force and effect of the immediate motive and provocation, it must clearly appear in evidence that a particular and definite intent to kill had been deliberately formed, and existed before and independently of the immediate provocation. The intent is not deliberate if there was a sufficient immediate impelling or provoking cause.

When an officer of the law is invested with the authority and duty to arrest an offender, and is rightfully proceeding in the line of his duty, and is resisted or assailed by the person whom he is authorized to arrest, and the death of the assailant is the result of the encounter, the fact that the officer entertained ill feeling or malice towards the assailant is not to be regarded as sufficient evidence of premeditated malice, in determining the degree of the homicide.

As the evidence in this case tends to show that elements of manslaughter and of excusable and justifiable homicide are involved, and the legal principles and doctrines relating to such offenses have been discussed in arguments of counsel, I will briefly express my views of the law:

Definitions of the various degrees of homicide have often been given by text writers, and in reports of judicial opinions; but as the killing of a human being is such a serious offense against the peace, security, and welfare of society, I think that in every trial a judge, in his charge to a jury, should restate definitions and the principles of law applicable to the facts disclosed by the evidence, so that such vitally important knowledge may become clear and familiar to the general public mind. Manslaughter is the willful and unlawful killing of a human being without malice, express or implied. It usually occurs on legal provocation, or in sudden fight, in the heat of passion aroused by an immediate cause; or where an officer employs greatly excessive force in the execution of legal authority or process. It may also occur when the slayer is engaged in an unlawful act, which is not a felony, and not likely to endanger human life; or gross negligence occurs in the performance of a legal act; or by neglect to perform an act required by law. Clark, Cr. Law, 165-172. Where an officer has legal authority to arrest, and, while using proper means, is resisted, he may repel force with force, and need not give back an inch; but he must not use excessive violence, far beyond the emergencies of the occasion. The law commands its officers to execute its mandates; to secure the alleged offender without fail, and at any reasonable hazard,-- and, if the person making resistance is necessarily killed in the struggle, the homicide is justifiable. This same principle of law is...