State v. Chavis

• Decision Date: 31 January 1879
• Citation: 80 N.C. 353
• Court: North Carolina Supreme Court
• Parties: STATE v. ASBURY CHAVIS.

80 N.C. 353

STATE

v.ASBURY CHAVIS.

Supreme Court of North Carolina.

January Term, 1879.

OPINION TEXT STARTS HERE

INDICTMENT for Murder removed from Richmond and tried at Spring Term, 1878, of STANLY Superior Court, before Moore, J.

The first exceptions are stated in the opinion of the court. The prisoner and Allen Jacobs were charged with killing one Jere Everett. The evidence was in substance as follows: Laura Leak, a witness for the state, testified that she was going along a lane leading into a public road near the town of Rockingham in the afternoon of the day on which the homicide is alleged to have been committed, and having approached within fifty yards of the road, she saw deceased going towards Rockingham with a bundle on his head. On arriving at the road she saw deceased and three other men standing together about thirty yards from her; they were talking, but she did not understand what was said; they took hold of deceased and threw him down, but did not strike him at that time; deceased got up and took a fence rail and struck at them, but did not know whether he hit any of them; one of the men then struck deceased with a rail and knocked him down, and while down the prisoner struck as though with a knife, and when he rose the prisoner then struck at him again as with a knife; deceased said “let me alone,” and ran; he was pursued by them one hundred and thirty yards (distance given by another witness) and she saw them have deceased down in the road; their names were James Chavis (now dead), Allen Jacobs and Asbury Chavis; they left him lying in the road, Allen Jacobs saying “come on, somebody is coming,” and the prisoner ripped with his knife against the fence and replied “that he would kill any damned man who came there.” She was very much frightened, and when deceased ran she got over the fence into a corn field; did not know the parties, but afterwards recognized them as the men who killed deceased.

Another witness testified that he saw three men on that day pass his place, and that they were intoxicated and were using vulgar and profane language; his attention on this account was attracted to them, and he saw them standing in the road near the mouth of the lane spoken of, and upon going in that direction, came upon deceased lying in the road, stabbed in several places and in a dying condition. He further testified that he heard the witness, Laura, make a different statement as to the point where they first took hold of deceased, from the one made by her on the trial, and did not think she could have seen them from where she was.

There was evidence that prisoner and deceased lived within five miles of each other, and had worked together several years. Evidence of violent character of the deceased was excluded, and prisoner excepted. The parties were arrested the evening of the homicide, and a bloody knife was found in prisoner's pocket.

The following instructions were asked in behalf of the prisoner:

1. Whatever either prisoner could do in his own defence he could do in defence of the other.

2. If the jury believe that deceased made the first assault, the prisoners had the right to repel force with force, and if they were assaulted with a rail, they were not bound to retreat, and if either of them killed deceased under these circumstances, the jury must acquit.

3. If the jury believe that prisoners threw deceased down in a mere drunken frolic and sport, not intending to harm him, and deceased becoming enraged assaulted them with the rail, and they were not able to retreat and killed out of necessity, the jury must acquit.

4. If the jury believe prisoners threw deceased down in sport and in consequence engaged in a sudden fist fight and their passions warming with the blows, they killed deceased, it would be manslaughter.

5. Even if the jury believe prisoners made the first assault with no intention of killing deceased or doing him any great bodily harm, and deceased returned the assault with a rail, and prisoners then killed him, it would be manslaughter only.

His Honor declined to give the instructions on the ground that they did not apply to the facts, but charged the jury, as to Asbury Chavis, that according to the evidence, if the jury should believe it, Laura Leak was the only eye witness to the transaction, and the guilt or innocence of the prisoner depended mainly on her testimony; and in estimating its value they should consider the excitement under which she naturally labored, her distance from the parties, and all the surrounding circumstances; and if fully satisfied from the whole evidence that she saw the difficulty as it occurred and has correctly stated it on the trial, the prisoner was guilty of murder. There was a verdict of guilty as to Asbury Chavis, and not guilty as to Allen Jacobs. Judgment, appeal by prisoner.

Attorney General, for the State .

Messrs. Cole & Legrand, for the prisoner .

ASHE, J.

Before the case was submitted to the jury, the prisoners' counsel suggested a diminution of the record from Richmond superior court, and moved for a certiorari on the ground that it did not appear that the prisoners were arraigned in open court, and that the solicitor had not entered a similiter to the tender of issue on the plea of prisoners. The motion was refused and the prisoners excepted. Both of these exceptions were properly overruled. The first, because the transcript of the record does show that the prisoners were brought to the bar of the court by the sheriff of Richmond county and arraigned on the charge of murder and plead not guilty, and were then remanded to the jail until the further order of the court in the cause. It has been held that where a record shows that a prisoner was brought to the bar in custody of the sheriff, and then, setting out the drawing of the jury and their verdict contains the entry--“the prisoner is remanded”--the presence of the prisoner during the whole trial appears with sufficient certainty. State v. Craton, 6 Ire. 164; State v. Langford, Busb., 436; State v. Collins, 8 Ire., 407' The second, because there is no necessity for...