State v. Banks

Decision Date30 April 1907
Citation143 N.C. 652,57 S.E. 174
CourtNorth Carolina Supreme Court
PartiesSTATE v. BANKS.
1. Homicide—Murder in the First Degree —Evidence—Sufficiency.

Evidence on a trial for homicide held to show deliberation and premeditation sufficient to sustain a verdict of murder in the first degree.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 480.]

2. Same—Malice—Statutes.

Revisal 1905, § 3631, declaring that murder by means of poison, lying in wait, etc., or by any other kind of willful, deliberate, or premeditated killing, shall be murder in the first degree, and that all other kinds of murder shall be murder in the second degree, classifies the different kinds of murder at common law, without giving any new definition, and the malice essential to constitute murder in the first degree need not arise from personal ill will, but may exist where there has been a wrongful and intentional killing without lawful excuse or mitigating circumstances.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 15-18.]

3. Same—Instructions.

Where, on a trial for homicide, the court charged that, to constitute murder in the first degree, the killing must be done with malice aforethought and with premeditation and deliberation, and that no particular time is necessary to constitute premeditation and deliberation, but, if the purpose to kill has been deliberately formed, the interval which elapses before its execution is immaterial, etc., the accused could not complain that the court failed to charge that, if the purpose to kill was formed simultaneously with the killing, the homicide would not be murder in the first degree.

Appeal from Superior Court, Ashe County; Ward, Judge.

Will Banks was convicted of murder in the first degree, and he appeals. Affirmed.

R. A. Doughton, for appellant.

Assistant Attorney General Clement, for the State.

HOKE, J. We have given the record and the exceptions noted our most careful consideration, and we find no error which entitles the prisoner to a new trial.

The objections urged upon our attention by counsel are that the judge declined to charge as requested, first, that there was no evidence of a deliberate and premeditated murder, and therefore a verdict of murder in the first degree should not be rendered; second, that, to constitute murder in the first degree, there must exist on the part of the slayer towards the deceased expressed malice, and that, in order to convict defendant of murder in the first degree in this case, the jury must be satisfied beyond a reasonable doubt that he slew deceased with particular or express malice, and that he did so with premeditation and deliberation; third, that in the charge, as given, the court did not properly instruct the jury as to what constitutes deliberation and premediation, in that he did not tell them that, if the purpose to kill was formed simultaneously with the act of killing, the homicide would not be murder in the first degree. We are of opinion that none of these objections can be sustained.

There was evidence tending to show that the son of deceased owed the prisoner a small sum of money, and there was a dispute between them as to the amount; that a few days before the homicide the prisoner was heard to say that the deceased, Prank, upheld his son, Onney, in not paying him the money; and that he was going to have the money or shoot the deceased. On the occasion of the homicide, there is no substantial difference in the account given by the witnesses. Three eyewitnesses to the occurrence testified, in substance, as follows: Jesse Reeves: "Banks left church first. McMillan and I went on home together. We overtook Banks and Onney McMillan, and Robert McMillan. Then we all went on together. Banks said that Onney owed him $1.50, and Onney disputed the amount, and Onney put his hand in his pocket, and Banks said: 'Hold on! durn you, don't bring out anything'—and pulled his pistol out. McMillan and the boy were going on. Banks had his pistol out, and told the boy not to dispute his word. He leaned up against the deceased, and said: 'Do you see this?' Banks then went on and overtook Onney. It was 20 steps to the forks of the road. Banks ran up and told Onney he was going to have his money or beat hell out of him, and struck at him, and deceased then threw his arm around Banks' neck, and Banks fired, and deceased went up against a fence, and Banks kept walking up, snapping, and changed the barrels with tils right hand, and I saw him hit deceased with the pistol. Deceased fell. Banks, after the first two shots, and while deceased was going away, fired at him three or four times. Banks snapped three or four times right over the deceased after the firing, and then changed the butt of the pistol and hit deceased in the face. Deceased walked 10 steps between the time of the first and second fire." Nettie Parsons: "Banks ran around deceased and shot him in the back. When the last shot was fired, deceased had his back turned to Banks, and Banks followed him up and fired at him as deceased was going from him. Deceased had his back to Banks all the time he kept shooting." Robert McMillan: "After we left the church, Banks said to Onney, 'I want to see you, and Onney stopped. Banks had a Barlow knife, and shook it at Onney and said, if Onney did not pay him, he would whip him. The deceased came up and said he meant for the boy to pay the debt. Then they got to disputing about how much was owing Banks. Banks got his pistol out, and showed it to the deceased and asked him he saw it, and deceased said he saw it, and Onney went on in front and Banks followed him, and told Onney he was going to have...

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56 cases
  • State v. Newsome
    • United States
    • United States State Supreme Court of North Carolina
    • May 9, 1928
    ......State v. Banks, 143 N. C. 652, 57 S. E. 174.         Third, in regard to matters transpiring in the courtroom: Without deciding, as it is unnecessary to do.so on the present record, whether the trial court could or should have ordered a mistrial ex mere motu (State v. Epps, 76 N. C. 55), upon the ......
  • State v. McCoy, 88
    • United States
    • United States State Supreme Court of North Carolina
    • May 5, 1981
    ...of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification. S(tate) v. Banks, 143 N.C. 652 (57 S.E. 174). It may be shown by evidence of hatred, ill-will, or dislike, and it is implied in law from the killing with a deadly weapon; a......
  • State v. Sing
    • United States
    • United States State Supreme Court of Idaho
    • July 1, 1922
    ...69 A. 218, 222; State v. Clayton, 83 N.J.L. 673, 85 A. 173; State v. Foster, 130 N.C. 666, 89 Am. St. 876, 41 S.E. 284; State v. Banks, 143 N.C. 652, 57 S.E. 174; Bivens v. State, 11 Ark. 455, 461; Gilchrist State, 100 Ark. 330, 140 S.W. 260; People v. Moore, 8 Cal. 90, 93; People v. Nichol......
  • State v. Cooper, 89
    • United States
    • United States State Supreme Court of North Carolina
    • April 14, 1975
    ......593] of murder in the first degree, to establish that the 'killing was deliberate and premeditated,' these terms contain, as an essential element of the crime of murder, 'a purpose to kill previously formed after weighing the matter' (State v. Banks, 143 N.C. (652), 658, 57 S.E. 174; State v. Dowden, 118 N.C. (1145), 1148, 24 S.E. 722, a mental process, embodying a specific, definite intent, and if it is shown that an offender, charged with such crime, is so drunk that he is utterly unable to form or entertain this essential purpose, he ......
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