State v. Cox

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: State v. Cox, 153 N.C. 638, 69 S.E. 419 (N.C. 1910)
• Decision Date: 23 November 1910
• Parties: STATE v. COX.

69 S.E. 419

(153 N.C. 638)

STATE

v.COX.

Supreme Court of North Carolina.

Nov. 23, 1910.

1. Homicide (§ 152^*)—Murder in Second Degree — Killing with Deadly Weapon — Presumption.

The killing with a deadly weapon, when admitted, raises a presumption of murder in the second degree, and the burden is upon accused throughout the trial to show all matters in mitigation either to reduce it to manslaughter or to prove killing in self-defense.

[Ed. Note.—For other cases, see Homicide. Cent. Dig. §§ 279-283; Dec. Dig. § 152.*]

2. Homicide (§ 119*)—Evidence — Self-Defense—Force Used in Good Faith.

To make good the plea of self-defense, the force used must be exerted in good faith to prevent the threatened injury, and must not be excessive nor disproportionate to the force it was intended to repel.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 172-174; Dec. Dig. § 119.*]

3. Homicide (§ 276*)—Self-Defense—Question for Jury—Excessive Force—Necessity for Killing.

Where the plea was self-defense, the question whether the force used was excessive or disproportionate to the force it was intended to repel and accused's necessity, real or apparent, for killing decedent to protect himself, are for the jury, to be determined on the facts as they reasonably appeared to accused.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 569; Dec. Dig. § 276.*]

4. Homicide (§ 113*)—Self-Defense.

If, after accused brought on the difficulty with decedent, accused, in good faith, withdrew and showed to decedent that he had withdrawn or gave decedent reasonable grounds to believethat he had done so and that he did not desire to continue the conflict, and decedent pursued the fight, and was striking accused with an open knife, accused could defend himself as if he had not originally provoked the fight.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 151, 152; Dec. Dig. $ 113.^2-*]

5. Criminal Law (§ 770*)—Trial—Instructions—Recapitulation of Contention of Parties.

It is proper for the court to recapitulate fairly the contentions of the state and of accused to illustrate the bearing of evidence upon the issues.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.*]

6. Homicide (§ 161*) — Self-Defense — Evidence—Malice—Unnecessary Force.

Evidence that accused fired two shots into the body of decedent after decedent fell tends to show that accused was acting through malice or rage and not in defense of his life, and that he was disposed to use and did use unnecessary force.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 302; Dec. Dig. § 161.*]

7. Homicide (§ 122*) — Self-Defense — Defense of Another.

One has the right to protect his father from assault only to the same extent that the father himself could have used force, and if the son entered the difficulty willingly, and had not thereafterwards withdrawn from the fight and retreated to the wall or if he used excessive force, he cannot plead self-defense in killing the assailant.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 177-181; Dec. Dig. § 122.*]

Appeal from Superior Court, Mecklenburg County; Long, Judge.

Ed. Cox was convicted of manslaughter, and he appeals. Affirmed.

Osborne, Lucas & Cocke and McCall & Smith, for appellant.

The Attorney General and Geo. L. Jones, for the State.

CLARK, C. J. The prisoner, Ed. Cox, was convicted of manslaughter and sentenced to the state's prison for a term of five years. From this judgment he appeals.

The evidence fills nearly 100 printed pages. Graphically, but not unfairly, the Attorney General sets out in his brief what occurred, as follows: "It was on the ball ground that Mack Cox unfurled the flag of his clan. He flung the epithet, 'Son of a ——, ' into the teeth of Reece Hucks; but the Huckses, the doughty, are not ready warriors, and they refused to be goaded into battle. It was Charles Cox, father and patriarch of the clan, that started the fight He says he went into Holbrook's store, but when his eye rested on Bat Davis he at once maneuvered for battle. He saluted his enemy, but Bat kept silent. He next flung out an accusation that Bat had flung a dead dog into his yard, and Bat admitted the charge. Then, said Cox, 'I grabbed him.' Bat tried to get away, but Charles held fast, and Mack Cox struck Bat over the head with a stool while he and Ed. made proclamation that no man should interfere. Charles' own account of this engagement is terse and vigorous: 'Davis got one hand wrapped around my head. He is a tall fellow; he got one of his fingers in my eye and I was holding him with my right hand, and I just reached up and caught his finger from out of my eye and stuck it in my mouth and just walked out. When we got out of the door I suppose we walked as far as the jury door, angling up the street, and then I threw that right foot out and threw him on his face and got on him and stuck my fingers in his eyes. He was hollering as hard as he could and some one stabbed me on the hip with something.' Gilreath Davis, of the Hucks' faction, then came up, crying out, 'Come on, the boys are in it' But Mack Cox intercepted him with a bottle and knocked him out of the door. Next Adrian Hucks came up and, in the language of Ed. Cox, 'Uncle Mack administered on him.' Meantime Ed. Cox, with his hand in his coat pocket on his pistol, was daring anybody to touch the parties, though Davis was crying aloud for mercy and Charles Cox was trying to dig out his eyes. The evidence for the state shows that Ed. Cox next approached Reece Hucks with his pistol in his hand, that he abused him, called him vile names, told him he had to get into the fight, and finally struck him. That the parties then clinched and Hucks backed up the street backed 25 or 50 feet. That while the parties were backing Lester Hucks ran up behind and struck Ed. Cox. Cox then ducked and pulled back and this was the very first movement he ever made indicating any desire or willingness to quit the fight He ducked and jerked away, and as soon as he was free from Hucks he pulled his pistol, advanced and fired. That at the first shot Reece Hucks exclaimed, 'He has killed me!' and fell and Cox deliberately fired two more shots into his prostrate body. Meantime Mack Cox had jerked Lester Hucks off, had thrown him into the street and the parties had clinched. When Ed. Cox had shot Reece Hucks three times he turned and fired twice at Lester Hucks, who was then engaged in battle with Mack Cox. Reece Hucks got to his feet, seized a chair and with it knocked Mack Cox down a time or two, and the fight was over."

He gives the casualties, as follows: "Reece Hucks, mortally wounded; Lester Hucks, knocked into a ditch by Mack Cox; Adrian Hucks, 'administered upon' by Mack Cox; Gilreath Davis, knocked out of a store with a bottle in the hands of Mack Cox; Bat Davis, knocked on the head with a stool, beaten up, and his eyes gouged; Charles Cox, cut with a knife in the hip; Ed. Cox, badly cut up on the head, face, and back; Mack Cox, shot in the arm by Ed. Cox, who was aiming at Lester Hucks, and subsequently knocked down two times with a chair in the hands of Reece Hucks."

The Attorney General adds: "Truly, there was beautiful fighting along the whole line, and if any member of the Cox clan showed any unwillingness to enter the fight, or, being in, any disposition to withdraw or retreat from the fight, it is not written down in the history of the battle."

The prisoner testified among other things that he had taken three or four drinks, but was not drunk, that he did not know how many fights he had up till the time he killed Reece, but had had a good many; that he had a fight with Reece Hucks the Christmas before the killing; that he did not call it a fight, but a shooting match, that they shot at each other; that he could not deny that he had had 11 fights in 2 years, didn't think he had had any more than that; that on this day the Coxes were on one side and the Da-vises and Huckses on the other—there were seven of the Coxes, including their close kin; says he saw his father on Davis, beating him; wasn't caring if he beat him, that he knew a man mean enough to kill his daddy's dog ought to have a heating; says that after "we had administered on Adrian, he said he wouldn't have anything more to do with it. He ran back in there. I got him out of range. When I got back Uncle Homer Cash-ion had Gilreath Davis. Bat was on the ground hollering. Reckon that was one I had fixed. Reckon Uncle Homer Cashion had fixed Gilreath Davis, which made two."

This fight occurred at a Farmer's Union picnic at Huntersville August 21,.1909, just after sundown when all parties were preparing to go home. The evidence for the state all went to show that the prisoner provoked the deceased to fight and that the prisoner was the aggressor. The prisoner sought to show that the deceased was attempting to take part in the fight between Charles Cox and Bat Davis, and was intending to cut the prisoner's father, and that the deceased was the aggressor. The ease was fairly left to the jury, who convicted the prisoner of manslaughter. The result of the fight was not as disastrous as the classical one between the Clan Quhele and the Clan Chattan on the North Inch of Perth, but from the evidence all the parties engaged on this occasion fought as willingly.

Exception 1 of the prisoner cannot be sustained. The killing with a deadly weapon was admitted and this raised a presumption of murder in the second degree, and the burden was upon the prisoner to show all matters in mitigation either to reduce it to manslaughter or to prove killing in self-defense. 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. This burden continues to rest upon him throughout the trial. Walker, J., in State v. Capps, 134 N. C 627, 46 S. E. 730, where the subject is fully treated.

Exception 2. The court correctly charged that in...