State v. Baldwin

• Decision Date: 20 December 1922
• Docket Number: 578.
• Citation: 114 S.E. 837,184 N.C. 789
• Parties: STATE v. BALDWIN.
• Court: North Carolina Supreme Court

114 S.E. 837

184 N.C. 789

STATE v. BALDWIN.

No. 578.

Supreme Court of North Carolina

December 20, 1922

Appeal from Superior Court, Macon County; Brock, Judge.

Harley Baldwin was convicted of manslaughter, and he appeals. Affirmed.

In a prosecution for manslaughter, exclusion of answers to questions by accused on cross-examination of witnesses introduced by the state in rebuttal of evidence that deceased had the reputation of being a dangerous and violent man, as to whether deceased did not have a reputation for shooting and cutting men while intoxicated, for gambling, and for carrying a pistol, was without error.

The defendant was convicted at the April term, 1922, of Macon county superior court, of manslaughter. The state's evidence tended to show that on September 10, 1921, the defendant, Harley Baldwin, the deceased, Aus Wright, Bill Baldwin, father of Harley, and Dick Wright were engaged in a game of cards, about 200 yards below Nantahala Bridge. There was a dispute between Harley and his father, Bill, on one side, and Aus Wright and Dick, on the other, as to which pair had won the game. After this had continued for some time, Aus Wright, the deceased, said "I want my money," and Harley, the defendant, told him he would not get his money and then jumped up and threw his hand in his right breeches front pocket. When Harley did this, the deceased, Aus Wright told him:

"You have the ups on me. You have a gun, and I have not one, but we will walk down to the road and let the boys strip us and I will whip you fair."

Harley then told Wright that he would not do it, but Bill Baldwin started up, saying, "Let me get him," and went toward Aus, opening his knife. The other parties present then interfered. Dick Wright took Harley off and up the hill about eight steps, whereas the witness Craig Steppe, with Aus Wright, remained standing where the fuss first occurred. Aus Wright, the deceased, then went to the place where his coat was lying, about six feet off, pulled a pistol out of his right coat pocket, and, before releasing it with his hand, he broke it down, and then, finding it empty, got cartridges out of his pockets and put five shells in the pistol. Then the defendant, Harley, and the deceased, Aus, both came walking towards each other when the following occurred: Aus said: "Harley, I have always treated you right, and I have loaned you money to-day and will again;" and Harley said, "I have always treated you right;" and Aus said, "You took my money when you ought not to have done that;" and Harley told him that was a damned lie, and they had a few words which the witness did not remember; and then Aus walked around and took his position on this side of the witness (indicating) and said, "You have had the ups on me to-day, but you have not got them now;" and they both began shooting at that instant, and there was not over a second's difference in the shots of the guns. Both men were wounded, Aus Wright fatally, dying soon after receiving the wound. The prisoner appealed from the judgment of the court.

J. Frank Ray, R. D. Sisk, and Johnston & Horn, all of Franklin, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The defendant's counsel in their brief discuss only exceptions 7, 8, 9, 11, 13, 14, and 15.

Exceptions 7, 8 and 9 will be considered together. The state, in rebuttal to evidence that the deceased, Aus Wright, had the reputation of being a dangerous and violent man, introduced witnesses who testified that he had no such reputation. The defendant's counsel, cross-examining these witnesses, asked them if Aus Wright did not have a general reputation for shooting men and cutting them while he was under the influence of whisky; again, if Aus Wright did not have a general reputation of gambling; again, if he did not have a reputation for carrying a pistol. His honor excluded the answers to these questions. This ruling of the court, it seems, is supported, upon the facts as they appear in the record, by State v. Canup, 180 N.C. 739, 105 S.E. 322. That case, it would seem, sufficiently answers the objections of the defendant covered by these three assignments of error, but we may just as well refer also to State v. Holly, 155 N.C. 485, 71 S.E. 450, State v. Blackwell, 162 N.C. 672, 78 S.E. 316, State v. Turpin, 77 N.C. 473, 24 Am. Rep. 455, and State v. Hines, 179 N.C. 758, 103 S.E. 374, which also fully answer the objections. The transaction here, considered upon the material and determinative facts, showed no self-defense or excuse for the homicide, nor was the evidence circumstantial, or the nature of the transaction in doubt. It was a plain and unmistakable case, at least, of manslaughter. The defendant was not only willing to fight, but eager for the fray, and there was some evidence of murder in the second degree, if not in the first, but the state did not ask for a conviction of murder in the first degree, but insisted only upon a verdict of murder in the second degree or on one for manslaughter, and the jury mercifully reduced the grade of the homicide to manslaughter.

Exception 11. His honor was stating the defendant's contention, in which he included a sentence in parenthesis as follows:

"(And that then the first quarrel took place, they both used bad language, calling each other damned liars and other epithets.)"

If this was a misconception by his honor of defendant's contention, the time and place to have called it to his attention was then. The defendant could not lie by and except to this sentence for the first time in making out the case on appeal.

Exception 13 was to the portion of the judge's charge, in which he is reciting a contention of the state, and in the condition of the present record this could not be successfully assigned as error.

We have so often said that the statement of contentions must, if deemed objectionable, be excepted to promptly, or in due and proper time, so that, if erroneously stated, they may be corrected by the court. If this is not done, any objection in that respect will be considered as waived. We refer to a few of the most recent decisions upon this question: State v. Kincaid, 183 N.C. 709, 110 S.E. 612; State v. Montgomery, 183 N.C. 747, 111 S.E. 173; State v. Winder, 183 N.C. 777, 111 S.E. 530; State v. Sheffield, 183 N.C. 783, 111 S.E. 617.

Exception 14 was taken to a portion of the judge's charge. This however, seems to be sustained by the authorities (State v. Kennedy, 169 N.C. 326, 85 S.E. 42, L. R. A. 1915F, 656; State v. Crisp, 170 N.C. 785, 87 S.E. 511; State v. Evans, 177 N.C. 564, 98 S.E. 788) as to the right of self-defense when the prisoner either unlawfully...