State v. Butler

• Decision Date: 21 February 1923
• Docket Number: 497.
• Citation: 115 S.E. 889,185 N.C. 625
• Parties: STATE v. BUTLER.
• Court: North Carolina Supreme Court

115 S.E. 889

185 N.C. 625

STATE v. BUTLER.

No. 497.

Supreme Court of North Carolina

February 21, 1923

Appeal from Superior Court, Transylvania County; Calvert, Judge.

W. W Butler was convicted of an assault with a deadly weapon, and he appeals. No error.

In a prosecution for assault with a deadly weapon, where defendant claimed he acted in self-defense, prosecuting witness having a knife in his hand and advancing on him, where the inferences from the charges were that the jury should first inquire whether the assault was made in self-defense or whether unlawfully and wrongfully, and if they found that it was made in self-defense, to to acquit, but, if not, they should further inquire as to whether defendant had committed an assault with intent to kill, an instruction that if they found that defendant assaulted witness with a deadly weapon and that he did so without intent to kill, to return a verdict of guilty of an assault with a deadly weapon, was not intended to be segregated from the rest of the charge, and was not misleading.

Welch Galloway, of Brevard, for appellant.

Jas. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER J.

The defendant was tried and convicted at the July term, 1922, of Transylvania superior court, Honorable T. H. Calvert presiding, of an assault with a deadly weapon, and from the judgment upon such conviction appealed to his court. Application was made at the last term for a certiorari, the certiorari was issued, and the hearing of the appeal was set at the end of the call of the docket for the Second district at this term.

It seems that there was ample evidence to sustain the verdict of the jury to the effect that the defendant was guilty of an assault with a deadly weapon, of which he was convicted. The defendant claimed that at the time he struck the prosecuting witness with a pickhandle he was acting in self-defense, the prosecuting witness having in his hand a knife, and not only advancing on him with it, but that he struck him in such way as to cut his clothes. The state's evidence tended to show that the prosecuting witness, Bumgardner, had no knife and that the assault by the defendant was in consequence of a quarrel in which Bumgardner cursed him.

Defendant's first exception was taken to the refusal of the court to admit evidence that at some time after the assault, the wife of Bumgardner, when handed a knife, exclaimed "Lord, that is Herbert's knife." The prosecuting witness' name was Herbert Bumgardner. It appears nowhere in the record that Bumgardner was being tried for any criminal offense himself. It does appear, or rather there was some evidence, that Bumgardner was near by at the time of this remark of his wife. It also appears that an appreciable time had elapsed after the assault and before the remark was made; and consequently it was not part of the res gestæ, as would be the involuntary or spontaneous exclamation of a bystander, at the very time of the transaction, within the principle of State v. Carraway, 181 N.C. 561, 107 S.E. 142, and the cases there cited. This principle was strikingly illustrated by the tumultuous cries of the mob, during the Lord George Gordon riots in London, while on the way to Parliament, which were admitted as evidence against the rioters to show their motive or object. It is true that a witness may testify to a conversation between husband and wife, on a trial of the former for a criminal offense, tending to incriminate him or contradict him, if a witness, and occurring in the presence and hearing of the witness, and may contradict either of them as a witness in a cause by what one has said to the other or, perhaps, by their conduct toward each other when relevant (State v. Randall, 170 N.C. 757, 87 S.E. 227, Ann. Cas. 1918A, 438, State v. McKinney, 175 N.C. 784, 95 S.E. 162, and State v. Martin, 182 N.C. 850, 109 S.E. 74), but that is not precisely this case. The situation and circumstances were not such, perhaps, as to prohibit the wife's remark from being used as evidence against her husband. G. S. § 1802. See State v. Mooney, 64 N.C. 54; Toole v. Toole, 109 N.C. 615, 14 S.E. 57. But the point here is that it did not reasonably appear that the husband either heard what was said by his wife to another person, or, if he did, that he comprehended it, or was, at all, aware of its probable effect upon him. His attention was evidently distracted by the wound inflicted upon him by the prisoner. It was said in the Toole Case, supra:

"The question which the court declined to allow the witness Pemberton to answer on the cross-examination by implication sufficiently suggested the nature and purpose of the evidence it was intended to elicit. It was expected that this witness would state, in substance, that the plaintiff had forbidden his wife, before the time specified, to go or associate with the person named, or to go where he was. The evidence of other witnesses went to show that the plaintiff had reason to suspect that his wife and the person named were unduly intimate. We think that such evidence was relevant and competent. It tended, in some measure, to contradict the witness Laura Toole. It is not probable that the plaintiff would have the man, whom he had reason to suspect was too intimate with his wife, to work for him, and that he invited that man to his house and to stay there with his children."

So that here the evidence of the witness Barton was competent for the purpose of contradicting the witness Bumgardner as to his statement, when on the stand, that he did not have a knife, provided his wife's statement was made in his presence and in his hearing in such a way that he understood what was meant by what was said.

Underhill, in his treatise on Criminal Evidence, at pages 153 and 154, § 122, says:

"The silence of the accused as regards statements in his hearing which implicate him directly or indirectly may be proved with the statements, and from his acquiescence the jury may infer his guilt. Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi confession. * * * For silence to be equivalent to a confession, it must be shown that the accused heard and understood the specific charge against him, and that he heard it under circumstances not only permitting, but calling for a denial, taking into consideration the circumstances and the persons who were present."

And again at page 298, § 242:

"A witness may be impeached, not only by his contradictory or inconsistent statements, but also by proof that on a former occasion, under circumstances where it was his duty to state the whole truth, he omitted to state material and relevant facts which he now states. Thus it may be proved that a witness omitted to state facts at the preliminary examination which he testifies to on the trial. But, for his silence to be admissible, it must appear from all the circumstances that it was his duty to tell the whole truth. The witness must be permitted to explain his previous ignorance of facts or his silence, and to show that his forgetfulness or ignorance was real and not assumed."

And still again, at page 157, § 124:

"A witness may testify that the declaration was made in the presence of the accused. He will not be permitted, however to state his opinion that the accused must have heard it, for that is not for the witness to determine. The cases are not harmonious upon the mode of...