State v. Cameron

• Decision Date: 06 May 1914
• Docket Number: 435.
• Citation: 81 S.E. 748,166 N.C. 379
• Parties: STATE v. CAMERON.
• Court: North Carolina Supreme Court

81 S.E. 748

166 N.C. 379

STATE v. CAMERON.

No. 435.

Supreme Court of North Carolina

May 6, 1914

Appeal from Superior Court, Moore County; Adams, Judge.

Jim Cameron was convicted of first degree murder, and appeals. Affirmed.

George H. Humber, of Carthage, and Hoyle & Hoyle, of Sanford, for appellant.

Attorney General T. W. Bickett and Assistant Attorney General T. H Calvert, for the State.

CLARK C.J.

The prisoner was indicted for the murder of John A. Blue on August 11, 1913, and convicted of murder in the first degree. The testimony is that J. A. Blue, the deceased, was standing in the door of the commissary, which he ran in connection with his sawmill. The prisoner came around the house with a pistol in his right hand, looking angry, asked for Blue, and went around the house to where he was. The witness heard talking between him and Blue, and then heard some one curse he then went there and saw the prisoner backing from the door, who said to Blue, "Don't curse me, you (using a foul expression)." Blue replied, "You're another." Prisoner then said, "Man, you stand up here and curse me." The prisoner was then in the act of shooting. The witness cried out to him, "Jim, don't do that." But he shot at the time the witness spoke. The prisoner turned and left in a half run. He was three or four steps from the deceased when he shot. The deceased wheeled around and fell. The witness took him up and carried him to the bed, pulled off his shoes, and went after his brother. When the witness got back, which was within an hour, Blue was dead. Other witnesses testified to the fact that the prisoner worked for the deceased and was angry because the deceased had not brought him some clothes. There is the testimony of Daniel Blue and other witnesses that the prisoner first used vile insulting expressions, and that the deceased replied "You're another."

The first exception is to the refusal of the court to charge: "There is no such evidence of premeditation or deliberation as would warrant the jury in returning a verdict of guilty of murder in the first degree." There is testimony that the prisoner came direct from his shanty to the commissary door, where the deceased was standing; that immediately the deceased went to his office, when the prisoner followed around the corner of the building with a pistol in his hand; that he was mad at the time; and that he first passed offensive language. This was sufficient evidence upon which the jury could find that the homicide was willful, deliberate, and premeditated, and the court properly refused to instruct the jury otherwise.

Exceptions 2 and 3 are to the action of the court in permitting the Solicitor to read to the jury part of the opinion in State v. Daniels, 139 N.C. 550, 51 S.E. 858. On this point his honor told the jury: "Rev. § 216, says that in jury trials the whole case, as well of law as of fact, may be argued to the jury. You will, of course, understand that the statement of facts in that case is given in the opinion only to explain the law. * * * You are to find the facts from the evidence, the evidence of this case, not in the Daniels Case." The prisoner also excepted (exception 16) to this charge, but we find no error in the above.

Exception 4 is because the judge in his charge told the jury that the defendant was indicted for the alleged murder of "J. A. (Archie) Blue." There was no question raised on the evidence as to the identity of the deceased, and there was no prayer to instruct the jury that there was a variance. If such point had been raised, the court would at once, in the interest of justice, both to the prisoner and to the state, have permitted or required evidence that John A. Blue named in the indictment and "J. A." (or Archie) Blue were one and the same person. It would be a reproach to the administration of justice if such exception could be deemed fatal when there was no indication or suggestion of a variance, and all the testimony was directed to the trial of the prisoner for the murder of the person named in the bill of indictment.

As to exceptions 5 and 12 the judge properly told the jury that there was no evidence of manslaughter or of self-defense, and that they could return a verdict either of guilty of murder in the first degree or of murder in the second degree, or not guilty. Indeed, the court might well have told the jury that in any aspect of the case, if the evidence was believed, they should find the prisoner guilty either of murder in the first degree or of murder in the second degree.

As to exception 6, the court charged the jury: "Premeditation is a prior determination to do the act in question, but it is not necessary that such determination shall exist for any considerable period of time before it is carried into effect. If the determination is formed deliberately and upon due reflection, it makes no difference how soon afterwards the fatal resolve is carried into execution. To constitute murder in the first degree, there must be express malice, not merely malice which is implied." This instruction merely defined murder in the first degree under Revisal, § 3631, and his honor's definition of premeditation and deliberation is in accordance with our uniform decisions. Among them State v. Jones, 145 N.C. 466, 59 S.E. 353; State v. Barrett, 142 N.C. 565, 54 S.E. 856; State v. Exum, 138 N.C. 602, 50 S.E. 283; State v. Teachey, 138 N.C. 588, 50 S.E. 232; State v. Dowden, 118 N.C. 1145, 24 S.E. 722; State v. Thomas, 118 N.C. 1113, 24 S.E. 431; 21 Cyc. 726.

The court further charged the jury: "Murder in the second degree is the unlawful killing of a human being by a person who has formed in his mind a purpose, design, or intention unlawfully to kill with malice, but without premeditation and deliberation. Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation or premeditation."

"The intentional killing of a human being with a deadly weapon implies malice." The prisoner excepted to the following charge: "When such killing is admitted by the prisoner or shown by the state, nothing else appearing, the prisoner is guilty of murder in the second degree; and the burden then rests on the state to show facts and circumstances sufficient to raise or to aggravate the crime to murder in the first degree (that is, to show beyond a reasonable doubt that the prisoner willfully, with deliberation and premeditation, formed and entertained the fixed design to take the life of the deceased."

The prisoner also excepted to the following charge: "When the killing is admitted by the prisoner, or shown by the state, it is incumbent upon the prisoner to satisfy the jury of facts and circumstances sufficient to mitigate the offense to manslaughter or to excuse the killing of the deceased, unless they arise out of the evidence against him. The court has already charged that there is not sufficient evidence of such mitigating or excusing circumstances; that is, that there is no evidence of manslaughter or self defense."

The prisoner also excepted because the court charged: "If you find from the evidence beyond a reasonable doubt, the burden being upon the state, that the prisoner intentionally shot the deceased with a pistol and inflicted a wound which caused his death, malice in that event is implied, and the prisoner is deemed to be guilty of murder in the second degree, and, in that event, this will be your verdict, unless the prisoner is guilty of murder in the first degree."

The above charge of the learned judge is carefully and clearly expressed in accordance with our precedents. State v. Yates, 155 N.C. 450, 71 S.E. 317; State v. Rowe, 155 N.C. 436, 71 S.E. 332; State v. Simonds, 154 N.C. 197, 69 S.E. 790; State v. Cox, 153 N.C. 638, 69 S.E. 419; State v. Fowler, 151 N.C. 731, 66 S.E. 567; State v. Clark, 134 N.C. 698, 47 S.E. 36; State v. Brittain, 89 N.C. 481.

Exception 11 is to a long excerpt from the charge containing a number of propositions. It is therefore an insufficient exception, for an exception must point to some specific proposition in the charge. State v. Johnson, 161 N.C. 264, 76 S.E. 679. But, after a careful reading of the whole matter excepted to, we find no error therein.

Exceptions 13 and 14 are taken to a statement by the court of the contentions of the state, and cannot be sustained. It is the duty of counsel to call the attention of the court at the time to any contention of the parties which is not supported by the evidence, or it will not be considered on appeal. State v. Blackwell, 162 N.C. 672, 78 S.E. 316; Jeffress v. Railroad, 158 N.C. 215, 73 S.E. 1013; State v. Cox, 153...