State v. Blackwell

• Decision Date: 28 May 1913
• Citation: 78 S.E. 316,162 N.C. 672
• Parties: STATE v. BLACKWELL.
• Court: North Carolina Supreme Court

78 S.E. 316

162 N.C. 672

STATE v. BLACKWELL.

Supreme Court of North Carolina

May 28, 1913

Appeal from Superior Court, Mecklenburg County.

Claud Blackwell was convicted of manslaughter, and he appeals. Affirmed.

Where defendant is found guilty of manslaughter only, error, if any, in refusing instructions relating solely to murder, is harmless.

The defendant was indicted in the court below for the murder of Dr. Fred Misenheimer, and was convicted of manslaughter. The evidence taken at the trial is very voluminous, covering nearly a hundred closely printed pages, and it will serve no useful purpose even to give a full synopsis of it.

The prisoner surely cannot complain if, for the purpose of passing upon his exceptions, we adopt his statement of the facts, as contained in the brief of his counsel. It is a fair and full statement for him; and, while it omits reference to some of the evidence, which strengthens the case for the state, it is sufficiently accurate to present the essential facts and the contentions of the respective parties. We may add, though that it did not appear that, if Dr. Misenheimer had earned a reputation for violence, when drinking, or under the influence of liquor, the prisoner knew of it, but the evidence tended to show the contrary, as his first acquaintance with him was on the night before the altercation in the room took place.

The statement of the facts by the prisoner's counsel is as follows: "The defendant together with W. L. Langley and C. B. Skipper, were, on the 25th of May, 1912, occupying a room in the Buford Hotel. Skipper, Porter, Beckman, and Langley had registered for the room. Porter and Beckman left before the trouble started, and were not witnesses to the fight. Skipper had been drinking hard for several days and was in a very weak condition. Blackwell came into the room on Friday afternoon about 5 o'clock. His room at the Buford Hotel had been assigned by the clerk to some one else, and upon the invitation of Skipper and Langley he went into their room about 6 o'clock that evening. Langley and Blackwell went to the Elks Club, where they met Dr. Misenheimer, who inquired as to the condition of Skipper, who was sick, and volunteered to walk back to the hotel with them. They all came back to the room which Skipper occupied, and went to bed about 10 o'clock that night. Langley waked up about 5 o'clock in the morning and waked Misenheimer and Skipper. Blackwell waked up and said he would have to go home, which was Lancaster, S. C., as had been planned the night before. Misenheimer and Skipper took another drink and went back to sleep. Langley stated that he hated to go away and leave Skipper in such a bad condition, and suggested that they wait until the afternoon train. Blackwell agreed to this, and they went back to bed. About 9:30 or 10 o'clock on Saturday morning, Skipper and all of the remainder of the party woke up, and Langley ordered breakfast for all to be sent to the room. During breakfast, Misenheimer began to abuse Langley. He then asked Langley for $2 to get a quart of whisky. Langley replied that he had no money of his own except a $50 bill, and the remaining money he had belonged to Skipper. Whereupon Skipper directed Langley to give Misenheimer $2, and Misenheimer wrote a prescription and Langley sent out for a quart of liquor. When the liquor came Misenheimer borrowed a knife from Blackwell to open the bottle with, took a drink, went into the bathroom and got a stick about 2 feet and 8 3/4 inches long and about 1 3/8 inches at one end and 1 inch at the other, weighing about 1 1/4 pounds. This stick is what is commonly known as a 'plumber's churn.' Misenheimer took this stick and began beating around the room, chasing Langley and hitting at Skipper. Then Misenheimer took the electric light cord and pulled it down and told Langley he was going to lynch him. He then began to pay attention to Blackwell. At first Blackwell did not at all reply to his attacks except to state, 'Quit that, Doc., it hurts.' Langley went into the bathroom then to stop his bleeding nose, which had resulted from the encounter with Misenheimer. He states that while he was there he heard three or four licks and heard an oath used. He looked around and Misenheimer was staggering saying that he was stabbed. The doctor was sent for, and he was taken to the hospital. Blackwell testified that after Misenheimer had finished his attack on Skipper and Langley and had beaten up the room pretty thoroughly with the stick he came over to the bed where he lay and pulled it down, and then Blackwell arose and got his shirt, and Misenheimer asked him where he was going, using an oath. Blackwell said he was going to dress and get out of the room, and Misenheimer then locked the door and threw the key under the bed, and stated with an oath, that he would knock the block off the first man that went out of the door. Blackwell then took up his shirt and got his knife off of the bed, where Misenheimer had thrown it after using it to open the bottle of whisky, and put it in his shirt pocket. Later he went after his slippers, which were under the bed. Misenheimer thought he was going to get the key, and said if he did get it he would kill him, and began beating him over the head. He continued to beat him over the head until Blackwell picked up the knife off the floor where it had fallen from his shirt pocket, and struck him with it. Misenheimer was taken to the hospital, and died after lingering several weeks. The defendant then went to Lancaster, under the belief that Misenheimer was not seriously hurt, but came back voluntarily when requested by the police. The defendant offered abundant evidence as to his good character, and also showed that he was not the C. C. Blackwell upon whom the state endeavored to fix a bad character. The only eyewitnesses who testified as to the transaction were the defendant, Claud Blackwell, and the witness, W. L. Langley. The state offered evidence tending to show that the wound could not be caused by the knife introduced by the state. Upon this point experts disagreed, and there is positive evidence that the knife shown to the jury was the one used."

The following errors were assigned by the prisoner:

"(1) The court erred in refusing to admit evidence of the violent and dangerous character of the deceased while under the influence of whisky. The error in this is that there was evidence of self-defense; and violent and dangerous character in cases of homicide is admissible when there is evidence of self-defense.

"(2) The court refused the prayer of the defendant to instruct the jury as follows: 'If you believe the evidence, the deceased did beat the defendant with a stick and without provocation from him, and was about to strike him again when the defendant stabbed him. And the defendant had a right to resist the assault of the deceased upon him by force, and had a further right to use a weapon to repel the assault, and he was not required to confine himself to his natural force and strength not to retreat, and the only question before you is whether or not he reasonably thought such force was necessary to repel the assault, and if he so thought, you ought to acquit him.'

"(3) The court refused the prayer of the defendant to instruct the jury a follows: 'If you believe the evidence, the deceased struck the defendant severe blows several times with a stick, and was attempting to strike him again when defendant stabbed him, and the defendant had a right to stab the deceased at the time he reasonably thought such stabbing was necessary to prevent the deceased from killing him or inflicting severe bodily harm upon him; such stabbing would not be excessive force under these circumstances, and you should acquit the defendant.'

"(4) The court, in its charge, stated the contentions of the defendant erroneously, as follows: 'And the defendant says that he went to the bed to get his shirt, and while he was putting it on, the penknife fell to the floor, and while he was in the act of getting his knife and putting on the shirt, the deceased again struck him, and told him he was going to kill him.'

"(5) Among other requests, defendant asked the court to charge: 'If you believe the evidence, the defendant is not guilty of murder in the second degree, and you will so find.' The court refused this charge, and fully defined murder in the second degree to the jury, and left the question to the jury of the guilt or innocence of the defendant of the charge."

The court gave a very clear and elaborate charge to the jury, explaining fully and correctly the different degrees of homicide with reference to the particular facts of the case, and also the contentions of the state and the prisoner, and among other instructions were the following:

"(1) The inquiry in this case is whether the defendant is guilty of murder in the second degree or manslaughter or killed the deceased in self-defense, and therefore is not guilty. Although the law raises a presumption that the defendant is guilty of manslaughter, that presumption can be removed by evidence in the case. It is not necessary that the evidence should remove the presumption beyond a reasonable doubt, in order that you should acquit the defendant, but you must be satisfied only that the defendant struck the fatal blow in self-defense. In other words, such satisfaction need not be established beyond a reasonable doubt, nor by the greater weight of the evidence, but through and by means of any evidence in the case that causes such satisfaction.

"(2) The defendant contends that, at the time the fatal blow was given, he apprehended or believed that the deceased was about to take his life or do him great bodily harm. If that apprehension or belief

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