State v. Brinkley

• Decision Date: 22 February 1922
• Docket Number: 497.
• Citation: 110 S.E. 783,183 N.C. 720
• Parties: STATE v. BRINKLEY ET AL.
• Court: North Carolina Supreme Court

110 S.E. 783

183 N.C. 720

STATE v. BRINKLEY ET AL.

No. 497.

Supreme Court of North Carolina

February 22, 1922

Appeal from Superior Court, Catawba County; Lane, Judge.

Fred Brinkley was convicted of manslaughter, and Albert Brinkley was convicted of murder in the second degree, and they appeal. No error.

Defendants were indicted for the murder of Homer Barringer. The state waived a verdict for murder in the first degree, and requested a verdict for murder in the second degree or for manslaughter. There was evidence tending to show, and it is admitted in the brief of the defendants, that Albert struck the deceased in the forehead with a rock, inflicting a wound which resulted in his death. There was evidence tending to show that the deceased said in his dying declaration that the wound had been inflicted by the defendant Fred. Albert was convicted of murder in the second degree, and Fred of manslaughter. Both defendants appealed.or Other Participation in Offense.

The exclusion of defendant's testimony that, a short time after the blow was given, deceased said that he did not have his knife, was not prejudicial to defendants, since such declaration was entirely consistent with the theory that he had not attempted to use a knife, and had slight, if any tendency to corroborate witnesses for the defense.

Wilson Warlick, of Newton, and Self, Bagby & Aiken, of Hickory, for appellants.

James M. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

After the state had produced its evidence and rested its case, the defendants moved to dismiss the action for want of sufficient evidence to sustain the prosecution. They excepted to the court's denial of their motion and introduced evidence and at the close of all the evidence again moved for judgment as of nonsuit. To the refusal of the latter motion they excepted, and now insist that they are entitled to the benefit of the first as well as the second exception. Both the terms of the statute and the decisions of the court are adverse to this argument. The defendants are entitled to the benefit only of the latter exception.

C. S. §§ 4643; State v. Killian, 173 N.C. 793, 92 S.E. 499. Consideration of the latter exception, therefore, includes all the evidence. For this reason the motion to dismiss the action cannot avail the defendant Albert Brinkley, because he admits that he struck the deceased with a rock; nor the defendant Fred (1) because the dying declaration of the deceased was evidence for the jury, and (2) because there was some evidence of a conspiracy or concert of action between the defendants.

True, the defendants insist that the dying declaration should have been excluded, because it was fragmentary; but the cases cited to sustain this conclusion do not apply to the evidence, for they merely decide that where a witness relates a part of a conversation in behalf of one party, the opposing party is entitled to the whole conversation. But here the witness related the entire dying declaration, and the fact that the deceased became too weak "to tell the whole story," and then fell into unconsciousness, does not render incompetent the declaration he made after saying, "I know I am going to die." State v. Shouse, 166 N.C. 306, 81 S.E. 333; State v. Williams, 168 N.C. 191, 83 S.E. 714; State v. Watkins, 159 N.C. 482, 75 S.E. 22; State v. Laughter, 159 N.C. 488, 74 S.E. 913.

The judge instructed the jury in substance that the defendant Albert admitted that he had struck the mortal blow, and that the burden was upon him "all the way through" to show mitigating facts and circumstances to reduce the crime, and to make good his plea of self-defense. To this instruction the defendants objected, on the ground that the burden of proof does not shift on establishing a prima facie case by the state, but continues on the state throughout the trial. His honor further instructed the jury in substance that the intentional killing of a human being with a deadly weapon implies malice, and that the burden then rests upon the defendant to show to the satisfaction of the jury facts and circumstances sufficient to excuse the homicide or to reduce it to manslaughter. This is a correct legal proposition, and the charge must be considered in its entirety. In State v. Capps, 134 N.C. 627, 46 S.E. 731, it is said:

"There is no principle in the criminal law better settled than that, where the killing with a deadly weapon is admitted, or proved, in the sense that it is established as a fact in the case, the law implies or presumes malice, and at common law the killing, if nothing else appears, is murder. State v. Willis, 63 N.C. 26; State v. Johnson, 48 N.C. 266; State v. Brittain, 89 N.C. 481. When this implication is raised by an admission or proof of the fact of killing, the burden is upon the defendant of showing all the circumstances of mitigation, excuse or justification to the satisfaction of the jury. State v. Johnson and State v. Willis, supra; State v. Vann, 82 N.C. 631; State v. Barrett, 132 N.C. 1005. And that burden continues to rest upon him throughout the trial. State v. Brittain, supra."

And in State v. Lane, 166 N.C. 339, 81 S.E. 622:

"The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him. This rule has been uniformly adhered to by this court in indictments for homicide. State v. Quick, 150 N.C. 820. This principle has been reiterated by us in more recent cases, State v. Worley, 141 N.C. 764; State v. Yates, 155 N.C. 450; State v. Rowe, Id. 436; State v. Simonds, 154 N.C. 197; State v. Cox, 153 N.C. 638; State v. Fowler, 151 N.C. 731; and formerly in State v. Clark, 134 N.C. 698; State v. Brittain, 89 N.C. 481."

In North Carolina no principle in the law of homicide is more firmly established than this. State v. Wilcox, 118 N.C. 1131, 23 S.E. 928; State v. Fowler, 151 N.C. 731, 66 S.E. 567; State v. Hagan, 131 N.C. 802, 42 S.E. 901; State v. Brittain, 89 N.C. 501; State v. Cameron, 166 N.C. 379, 81 S.E. 748; State v. Orr, 175 N.C. 773, 94 S.E. 721; State v. Spencer, 176 N.C. 715, 97 S.E. 155. In White v. Hines, 182 N.C. 275, 109 S.E. 31, in discussing the burden of proof in civil actions, this court held that the rule therein stated was not intended in any way to modify the well-established principles applying to the law of homicide.

After stating certain contentions submitted by the state, his honor charged the jury as follows:

"If you find that the defendants entered into a common enterprise, a joint enterprise there, and that they both willfully entered into a combat with this man, fought him willfully and wrongfully, and assaulted him with a deadly weapon, struck him a blow which resulted fatally, without excuse or justification, you will find them guilty of murder in the second degree, unless they have shown to your satisfaction such facts and circumstances as would reduce it to manslaughter by rebutting and doing away with the element of malice."

To this instruction the defendants excepted on the ground that the evidence did not justify any theory or contention that both the defendants fought or assaulted the deceased, or that there was concert of action between them at or preceding the time the mortal blow was inflicted. We are not prepared to concur in this conclusion. Testimony as to what took place between the defendants and the deceased at Newton on the day before the homicide and afterward: as to "a handful of bills" exhibited on...