State v. Burton

• Decision Date: 22 November 1916
• Docket Number: 433.
• Citation: 90 S.E. 561,172 N.C. 939
• Parties: STATE v. BURTON.
• Court: North Carolina Supreme Court

90 S.E. 561

172 N.C. 939

STATE v. BURTON.

No. 433.

Supreme Court of North Carolina

November 22, 1916

Appeal from Superior Court, Gaston County.

I. J Burton was convicted of murder in the second degree, and he appeals. No error.

In prosecution for murder, where defendant took the stand in his own behalf, it was competent in cross-examining his character witness to ask if he had not heard defendant accused of several crimes.

S. J Durham, of Gastonia, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK C.J.

This appeal is from a verdict and judgment for murder in the second degree. The defendant kept a small store in Bessemer in which he took his meals and slept. For several nights he had been annoyed by persons rousing him by knocking at the door and then running off. On the night of the homicide about 10 o'clock, the deceased, a boy of 16 years of age went with several other boys to the store and threw a piece of wood against the door and then ran off. The defendant shot at them, and killed the deceased; the bullet passing near the heart and producing instant death.

The witness Dees testified that, hearing the report of a pistol and looking out, he saw the deceased fall, and before he got to him he was dead, lying on the ground with a bullet wound under his left shoulder blade; that defendant said, "I killed him," but added, "I didn't aim to kill him, I intended to shoot him in the legs"; that he also heard the defendant say, as the deceased was running away after being shot: "Oh, yes, God damn you; I will learn you how to prowl around my place here at night." This witness testified that he was at defendant's place at 6 or 7 o'clock that evening to get some tobacco, and then when he walked into his place the defendant had a pistol out, wiping out the barrel. The witness said to him, " 'You are fixing to go to Germany.' He said, 'No, but I am going to kill a damn son of a bitch.' I said: 'Don't talk that way; you are too old a man to have such talk'--and went in behind the counter and got the plug of tobacco. He said, 'I bet you $50 I kill a man to-night.' I said: 'Mr. Burton, you should not talk that way. It costs something to kill a man in this country.' He said: 'I expect to kill the first God damn man that taps on my door to-night. I am going to push this door shut and sit down here by it, and the first man that taps on this door I expect to kill him.' I said: 'You should not talk that way. Possibly I should want something in here. How am I to get into the door unless I was to tap?' He said: 'It don't make any difference. You heard what I said: The first God damn man that taps on my door to-night I expect to kill him.' " He further said that the moon was full, bright, and clear. Another witness, Hodges, also testified that the defendant that evening was cleaning his pistol and stating what he would do if any one came around bothering him that night.

The solicitor stated in open court that he would not ask for a verdict of murder in the first degree, but only for a verdict of murder in the second degree, or manslaughter, as the evidence might warrant, whereupon the defendant admitted of record that he killed the deceased with a deadly weapon. He further admitted that he had been convicted of the careless handling of firearms, resulting in the death of his brother, for which he had served a sentence of 12 months. The court refused the motion of the defendant to open and conclude the evidence and the argument, and defendant excepted.

The right to open and conclude the argument, except in cases where the defendant introduces no evidence, is in the discretion of the court, and the exercise of such discretion is not reviewable upon appeal. State v. Anderson, 101 N.C. 758, 7 S.E. 678. The mere fact that the defendant had assumed the burden of showing matter in mitigation or excuse did not entitle him to open and conclude. 12 Cyc. 536.

Exceptions 2, 3, and 5 are to the above; but evidence as to the conduct and declarations of the defendant the afternoon before the homicide showing preparation and threats was admissible as tending to show general malice. State v. Shouse, 166 N.C. 306, 81 S.E. 333. "Threats made by defendant against a class to which deceased belonged, and prima facie referable to deceased, although his name is not mentioned, are admissible against defendant." 21 Cyc. 932. Nor can we sustain the exceptions to the testimony that the deceased was a boy 14 or 15 years of age. There was no testimony of any fight, and this was merely a part of the history and circumstances of the case, showing who the deceased was.

Exception 7 cannot be sustained. A party introducing a witness as to character can only ask him as to general character and reputation and not as to his personal dealings with the defendant, and it was no error for the court to so hold. State v. Hairston, 121 N.C. 579, 28 S.E. 492. The defendant having gone on the stand as a witness in his own behalf, it was competent in cross-examining a character witness introduced by him to ask if he had not heard the defendant accused of several crimes. The witness replied he had not, though he had served the papers when the defendant was in court for killing his brother, which the defendant had already admitted, and he had served papers on him in another case in which he was found not guilty. There was no prejudice sustained by the prisoner in this respect.

Exception 10 is that the court instructed the jury that, the defendant having admitted the killing with a deadly weapon, the burden was upon him to excuse the killing on the principle of...