State v. Boon

• Decision Date: 31 January 1880
• Citation: 82 N.C. 637
• Court: North Carolina Supreme Court
• Parties: STATE v. THOMAS BOON.

82 N.C. 637

STATE

v.THOMAS BOON.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for Murder removed from Yancey and tried at Spring Term, 1879, of MADISON Superior Court, before Gudger, J.

The prisoner was charged with the murder of one Samuel Butner, and from the statement of the case, the following substantially appears: The clerk was directed to furnish prisoner's counsel with a list of the names of the special venire, the names of four of whom were by mistake of the clerk left out of the box. Upon suggestion of prisoner's counsel that the names of these four had not been called, the court directed them to be put in the box and drawn. The prisoner made no exception at the time other than to suggest they had not been called. But after the trial he excepted to the alleged irregularity.

Ten jurors of the special venire were stood aside, and in selecting the jury, their names were called from the list in the order in which they had been drawn, and disposed of by the state and the prisoner, the prisoner accepting one of them, who completed the panel. After the verdict, the prisoner excepted, for that the names were not placed in the box and drawn a second time.

John A. Black, for the state, testified that in June, 1878, he went to the bar-room or grocery (where the alleged murder was committed) and soon after he got there the prisoner, the deceased, and some others came there. It was late in the afternoon, and the party were drinking, and after the shop keeper had closed, they started off. Upon some one's proposing to get more brandy, the deceased said, with an oath, “I've got the money.” “Yes, and you know how to keep it,” said one of the party. Prisoner then said to deceased, “As you have so much money, pay me what you owe me.” Deceased replied, he did not think he owed him anything; if he did, he would pay it when he got the change, and asked the amount, when, after some calculation the prisoner answered, “five cents,” and said he could change the bill of money. After some talk about paying the money, prisoner said, “pay me right here, or I'll whip you.” Deceased said he was a friend of prisoner, and did not want any “fuss.” Prisoner took hold of deceased; witness separated them, but prisoner got hold of him again, and a fight ensued, the prisoner knocking deceased down, and getting on him on the ground, when they were separated again. Prisoner drew a pistol, and threatened to shoot deceased. Deceased got up and walked off towards the grocery, witness holding prisoner, and trying to get the pistol. Prisoner promised to put his pistol in his pocket, if witness would let him go. Prisoner then put up his pistol, and also went towards the grocery. Witness soon heard fighting in the direction of the grocery, and on arriving there found the parties fighting again, but deceased was not striking back, and witness did not see what prisoner was striking with. Prisoner was holding deceased with his left hand and striking with his right hand. He attempted to separate them, and said to prisoner, “You ought not to have done this; you have killed Sam,” (deceased). Prisoner said “no, I haven't hurt him.” Deceased was very bloody. When the blows were struck, witness heard a noise like “a rip” in cloth. It was a cloudy night, but some moon-light. Witness told deceased to get out of the way, and deceased thereupon ran across a creek near by, and fell. When witness got to him he was lying on his back. Prisoner and others came up soon after, and in reply to a remark of witness that Butner was killed, the prisoner said, “he is lying there drunk.” A physician was sent for, and in a few minutes they carried the deceased to a mill, on the creek, not far off, and when they got there he was dead. He was cut in the neck, throat, breast and shoulder. On cross-examination the witness stated that both of the parties had been drinking; that before the first fight, deceased said to prisoner that some months before he had got insulted at deceased, and prisoner asked, “Do you intend to insult me?” and deceased replied, “I do not;” that it was a very short time between the two fights; about forty yards from the place where the first occurred to the grocery where the second took place. During the fight the deceased got prisoner by the throat, and held on until witness separated them; prisoner's ear was bleeding a little; no other injury to him; he did not complain of being hurt. Several other witnesses (among them one Hicks) were examined for the state, whose testimony is substantially that of the first witness, and tending to show that at the first fight the deceased remonstrated with the prisoner, telling him to let him alone, and saying that he was a friend to prisoner, and that deceased, during the difficulty, twice said, “Oh Lord, boys, hold him off me.”

A medical expert testified that he was called to see the deceased, and on examination found four wounds; the first, a cut across the heart which penetrated to the cavity, sufficiently large to allow the witness to introduce his hand and lift up the heart; the heart had a shallow incision in it; the second was above the heart, and struck the breast bone; the third, a little above the second, and penetrated the cavity of the body; the fourth, on the neck, commencing at the ear and coming down to the throat, and in the cavity of the throat, about two inches in length, severing the jugular vein; the wounds at the heart and throat were sufficient to produce death. The prisoner admitted that the wounds described caused the deceased's death.

Jane Carroll, a niece of prisoner, testified in his behalf, that she saw him on the night of the murder; his head was badly cut on the right side near the top, also a gash over his left temple, and scratched places on his throat, resembling prints of fingers; the cut on the top of the head looked as if it had been done by a rock; the prisoner remained in the house (his father's where witness was) about an hour, changed his clothes, but did not have his wounds dressed; his clothes were bloody. Caroline Hensley, a sister of the prisoner, also testified that he was wounded as described by last witness, but that the wounds had not been dressed; saw prisoner again two weeks afterwards; the prints were on his throat then, but did not examine his head. And the evidence of a brother-in-law of prisoner was substantially the same as that of the witness Jane Carroll.

Samuel Boon, the father of the prisoner, testified that he examined his wounds the morning after the homicide; his throat was choked; one cut near the top of his head, an inch or more long; one near the right ear, and one in the temple, not so bad as that on the top of prisoner's head.

Samuel Parrott testified for the prisoner, that he saw him on the night of the killing at his (prisoner's) father's, Samuel Boon; went with him to the house; there was some blood on his head, a little place of blood there. On cross-examination, he stated that he was at the grocery on the night of the fight, and Johnson (the shop keeper) closed up his bar and went to supper; does not remember who were present except the prisoner, the deceased, Black, (the first witness) one Wilson and himself; they went up the road to meet the bar-keeper; prisoner wanted deceased to pay him what he owed him; some quarreling occurred; prisoner took hold of deceased, pulled him about, and struck him; a fight took place between them; they were separated, and deceased walked down the road; the prisoner had his pistol, and Black told him to put it up; prisoner said let me go, “I won't do any more, and will put it up.” At the first fight the deceased said he did not want any “fuss”; when witness got to the second fight, prisoner was striking deceased; Black took hold of the prisoner and told deceased to get away, and deceased ran off up the creek, and after crossing it, fell; when they got to deceased, Black said, “go for a doctor,” and the prisoner said, “Parrott will go with me”; the prisoner did not complain of being hurt; witness did not see blood or wounds on prisoner, till he got home; saw the place on top of his head, but did not see other wounds, nor scratches on his throat.

It was admitted that the killing was with a deadly weapon, and there was not sufficient “cooling time” between the fights. There was also evidence tending to show that the party had started to go up the road to their homes.

During the argument, a disagreement arose between counsel as to what was sworn to by one of the witnesses, and the court directed the witness to be re-called. He then re-stated his testimony upon the point in dispute, and neither side was permitted to interrogate him. The prisoner excepted to the re-calling of the witness.

The court told the jury that its rehearsal of the testimony was to aid them, but not conclusive as to what the witnesses said; their own recollection of the testimony should guide them and then; proceeded to charge,

1. Upon a trial for murder, the fact of killing with a deadly weapon being proved or admitted, (and here, it is admitted) the burden of showing matter of mitigation is thrown upon the prisoner, unless it arises out of the testimony produced against him. It is incumbent on him to establish such matter, neither beyond a reasonable doubt, nor by a preponderance of testimony, but to the satisfaction of the jury. Homicide is murder unless attended with extenuating circumstances which must appear to the satisfaction of the jury, and if they are left in doubt on this point, it is still murder. If the prisoner in this case has satisfied the jury he did the act, of necessity, it would make a case of self-defence; if in the heat of blood arising from sudden passion, it would mitigate the offence to manslaughter; but if he has failed so to do, the jury should return a verdict of guilty of murder. Matter of mitigation may appear from the state's evidence or that offered for the defence, but...