State v. Blackburn
| Decision Date | 31 January 1879 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JAMES BLACKBURN. |
1878, of PENDER Superior Court, before Eure, J.
The bill was found at fall term, 1877, of Sampson superior court, and at the following term an order was made on affidavit of prisoner, after his arraignment and plea of not guilty, to remove the case to Pender, and when it was called, the prisoner moved to quash the bill, for that, it had been found by an incompetent grand jury--one of whom not having paid his taxes for the preceding year, which fact came to his knowledge after the order for removal was made. Motion refused and prisoner excepted.
The dying declarations of the deceased, John D. Lamb, (as set out by Mr. Justice ASHE in the opinion) were admitted as evidence after objection by prisoner, that part of which detailing the transaction being as follows: The deceased said he went to prisoner's cooper-shop and asked him if he had missed two barrels, and if he did that he (deceased) took them. Prisoner replied by telling him to take the other barrels and every thing he had away from there, that he had treated his (prisoner's) children badly. Deceased said, “Jim, you must be a fool,” and the prisoner caught up a hatchet and struck him with it on the side of the head above the ear; did not know how the wound on the top of his head was made; he fell and after getting up tried to go to the road; did nothing to prisoner except to make the remark aforesaid; did not strike prisoner, and no one was present except prisoner and himself.
A witness was then introduced who testified that he went to the prisoner's shop shortly after the difficulty, and saw a bloody hatchet, pole and adz, and blood sprinkled about on the shavings, and some other evidences of a mutual combat; that on the day before the fight he heard deceased say that prisoner's children had taken some of his wood, and if prisoner bothered him he would wear him out to a frazzle; that deceased did not appear to be mad at the time he made this remark. Another witness testified that there was an altercation between them, deceased walking up to prisoner and slapping his hands at him, and he then knocked prisoner down with a frow, and prisoner struck him with the hatchet and threw the adz at him.
The state then introduced evidence to corroborate the dying declarations, and the witness testified as to declarations made to him by decased a few minutes after the difficulty occurred, which were in substance the same as above stated.
The prisoner asked the court to charge:
1. If deceased struck prisoner, and by reason of the furor brevis caused by the blow, prisoner killed deceased, it would be manslaughter. Given.
2. If deceased made the assault and it was violent and sudden, and prisoner was unable to retreat without danger of death or great bodily harm, and prisoner slew him, it would be homicide excusable. Refused.
3. If prisoner was in his yard at work when assaulted, he was not bound to retreat to the wall, but had the right to repel force with force so as to overcome his assailant, and if the killing occurred in this way, it was excusable. Refused.
4. If the jury believe deceased went into prisoner's enclosure and assaulted him, knocking him down, and prisoner struck with the hatchet but did no serious injury, and thereupon the deceased used the frow, a deadly weapon, and prisoner believed that he was in danger of losing his life or receiving great bodily harm, and slew the deceased, it would be excusable homicide. Refused.
5. If deceased went to prisoner's, having been forbidden to come upon his premises, he was guilty of a forcible trespass, and if he there made an assault on prisoner, the latter was not bound to retreat, and if the killing occurred by repelling force with force, it would be excusable homicide. Refused.
These instructions were refused on the ground that they were not applicable to the facts. The jury found the prisoner guilty of manslaughter. Judgment, appeal by prisoner. After the argument in this court, a petition for a certiorari was presented.
Attorney General, for the state .
Mr. J. D. Kerr, for the prisoner .
Since the argument of this case, a petition has been presented to this...
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