State v. Boggan
| Decision Date | 19 December 1903 |
| Citation | 46 S.E. 111,133 N.C. 761 |
| Parties | STATE v. BOGGAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Anson County; C. M. Cooke, Judge.
Will Boggan was convicted of murder in the first degree, and appeals. Affirmed.
In a prosecution for homicide, defendant could not complain of a refusal to instruct that he could not be convicted of manslaughter, where there was uncontradicted evidence, except as to his identity, of murder in the first degree.
The following are the instructions of the trial court:
"(1) All murders which shall be perpetrated by means of poison lying in wait, imprisonment, starving, torture, or by another kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery burglary, or other felony, shall be deemed to be murder in the first degree, and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree. Any other wrongful killing of a human being is manslaughter.
(2) Murder in the second degree is the willful and unlawful killing of a human being with malice.
(3) But to make the killing murder in the first degree, it must not only be done with malice, but, unless perpetrated by means of poison, lying in wait, imprisonment, starving, or torture, or committed in the perpetration or the attempt to perpetrate some arson, rape, robbery, burglary, or some other felony, it must be committed with deliberation and premeditation.
(4) General malice is wickedness; a disposition to do wrong; a diabolical heart, regardless of social duty, and fatally bent on mischief. Particular malice means ill will; a grudge; a desire to be revenged on a particular person. Malice, also in respect of the rule for the proof of its existence, is either implied or expressed. Implied malice is when the law presumes its existence. The law presumes malice from the use of a deadly weapon, and, when it is admitted or proved that the slaying was with a deadly weapon, the burden is upon the accused to satisfy the jury, not beyond a reasonable doubt, but to satisfy them of the existence of facts and circumstances in mitigation, and sufficient to reduce the offense below murder in the second degree. Mere words, however opprobrious and insulting, are not legal provocation for the use of a deadly weapon, and cannot be allowed as sufficient to reduce the offense below murder in the second degree, when the killing is with a deadly weapon.
(5) A deliberate and premeditated killing can only be where there is a murderous intent and purpose in the heart, formed before, and not simultaneously with, the killing, and a steadfast resolve and deep-rooted purpose to kill the deceased, after carefully considering the consequences.
(6) Dying declarations of the facts of the killing and of the person who did it are competent, but should be received with caution.
(7) Of every fact material and essential to the guilt of the prisoner of any one of the offenses the jury must be satisfied beyond a reasonable doubt, and, upon a consideration of the whole evidence, the jury must be satisfied beyond a reasonable doubt that the defendant is guilty, before they could find him guilty of any one of the offenses.
(8) The court instructs you that in this case the defendant is guilty of at least murder in the second degree, or nothing. It will be your duty to consider first if he be guilty of the homicide, and then whether it be murder in the first or second degree.
(9) Upon the question of identity, the court instructs you that the state must satisfy you beyond a reasonable doubt that the defendant is the man who fired the fatal shot that killed John Sullivan, and if the state has failed to satisfy you beyond a reasonable doubt that the defendant is the man who fired the fatal shot, or if, after considering and weighing all the evidence, your minds are left in painful doubt and uncertainty upon that point, it would be your duty to acquit the defendant; and upon this question it will be your duty to consider all the evidence offered by the state, including the dying declarations of the deceased that the defendant was the man who shot him, as testified by the witness Crawford, the widow and brothers of the deceased, if you shall find the facts testified to be true; and the evidence of the witnesses Starnes and Morgan that they saw the man shoot the deceased; that, while they did not know the name of the defendant, they knew the man, and did recognize him as soon as they saw him, and that it was the defendant; and also their evidence that they recognized his voice the first time they heard it afterwards as the voice of the man who shot the deceased; if you shall find the facts testified to by them to be true; and also the evidence in corroboration of the said Starnes and Morgan, if those witnesses who testified to hearing the said Starnes and Morgan say, after the shooting, and before they saw the said defendant, thereafter, that they did not know the name of the man who did the shooting; that they would know him if they should see him again; if you shall find the said facts to be true. You will also consider the evidence of the witness Starnes that the man who shot the deceased had on a short, light-colored overcoat, and a brown derby hat, and of Morgan that he had on a light-colored overcoat, and the evidence of the witnesses who testified to seeing the defendant that night, and that he had on a light-colored overcoat and a brown derby hat, if you should find these facts to be true; and you will also consider the evidence of the witnesses of the general bad character of the defendant. And you will also consider the evidence of the witnesses who testified to seeing the defendant, on the night the deceased was shot, at a point on the street not far from where the shooting occurred, with a pistol in his hands, and the evidence of the witnesses that the defendant and the deceased were quarreling, that night and not far from the place of the shooting, and not long before the shooting occurred--provided you shall find the facts to be true; and upon this question you will consider all the evidence that is in favor of the defendant, including the fact that the shooting occurred in the night time in the alley; that neither Starnes nor Morgan knew the man by name, and their failure to tell who it was that did the shooting immediately after the shooting, and the testimony of these witnesses who testified that Starnes and Morgan stated soon after the shooting that they did not know the man who shot Sullivan; the evidence of the witnesses who testified that Will Boggan did not wear a light-colored overcoat, and did not own one, and that he did not have a brown-colored derby hat. You will also consider the evidence of the defendant himself that he was not the man who shot the deceased; that he was not at the place where he was shot, but that he had left town before it occurred, and had gone by his home, and shortly afterwards had gone, in company with Monroe Ledbetter, Jean Tysen, Thomas Boggan, Frank Sturdivant, Walter Howell, Garfield Howell, and Jesse Willoughby, to a point in some woods more than a mile from town, and where he and they had remained playing cards until a late hour in the night; and also the evidence of Monroe Ledbetter that he went with the defendant from town before the shooting occurred, and was with him on the way to and over in the woods until a late hour in the night; and also the testimony of Frank Sturdivant, Jean Tysen, Garfield Howell, and Thomas Boggan that they got up with the defendant and Monroe Ledbetter, and accompanied them to the woods for the purpose of playing cards, and that they remained there with the defendant until a late hour of the night; and the testimony of Cornelia Ledbetter and Nellie Boggan to the fact that Boggan and Ledbetter were at their respective homes between nine and ten o'clock, and left with their lanterns; and the evidence that the defendant, after his return from the woods, on being informed by his wife that the officer had been at his home to arrest him on the charge of shooting the deceased, came at once to town, and sought the officer, and inquired the cause of his arrest; and you will also consider the evidence as to the good character of Monroe Ledbetter, Jean Tysen, Tom Boggan, and Frank Sturdivant, and Anna Johnson, Cornelia Ledbetter, and Nellie Boggan, and of the bad character of Judge Starnes. You will also consider the evidence of the witness who testified to measuring the rubber overshoe that defendant had on, and then applying the measure to tracks made by some one wearing apparently rubber shoes, going away from the place of the killing, and that the measure of the tracks was one-eighth inch shorter than the measure of the other soles. The court does not claim to have herein called your attention to all the evidence in the case, but you will consider all the evidence, and allow to it such weight as you may find it entitled to.
(10) If you shall find beyond a reasonable doubt, after considering all the evidence in the case, that the defendant fired the shot that killed the deceased, and if you shall further find beyond a reasonable doubt that the defendant, moved by feeling of revenge and ill will towards the deceased, had after considering carefully the consequences, coolly and deliberately formed the murderous purpose against the deceased, and, with the steadfast resolve and intent to kill the deceased, and with deliberation and premeditation, fired the said shot, then you will find the defendant guilty of murder in the first degree; but, if you shall not be so satisfied beyond a reasonable doubt, you...
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