State v. Daniel

• Decision Date: 26 September 1905
• Parties: STATE v. DANIEL.
• Court: North Carolina Supreme Court

51 S.E. 858

139 N.C. 549

STATE v. DANIEL.

Supreme Court of North Carolina

September 26, 1905

Appeal from Superior Court, Martin County; Ward, Judge.

Preston Daniel was convicted of murder in the first degree, and he appeals. Affirmed.

The Attorney General, for the State.

WALKER J.

The defendant was indicted for the murder of William Eborn. He was convicted of murder in the first degree, and from the judgment rendered upon the verdict he appealed.

There is but one exception. At the close of the testimony the defendant's counsel requested the court to charge the jury that "there is not sufficient evidence of premeditation and deliberation on the part of the defendant and that upon the evidence the jury is not warranted in convicting the defendant of a graver offense than murder in the second degree." The court refused to give this instruction, and the defendant excepted. The court then charged the jury fully upon the law and the evidence, and explained to them the different degrees of homicide as defined by the statute, but did not in its general charge give the instruction requested by the defendant. It is well settled that, if there was any evidence to support the verdict, the defendant must fail in his contention. We think there was not only some, but abundant evidence of premeditation and deliberation. To demonstrate this requires us to state the substance of the testimony.

The defendant and the deceased were on an excursion train going to Parmalee. When they arrived at that place, the defendant got off the train and went to a bar for some whisky. When he came back to the car, the deceased was sitting by Gertrude Little, who was escorted by the defendant. The latter then told the deceased that he must not sit by his girl when he was out. The deceased got up and walked over to the other side of the car and sat down, saying, at the time: "This is a diabose crowd." When the defendant heard that remark, he drew his pistol from his left pocket and put it in his right hand, and then ""hollered, 'Look out!' as the deceased turned his head"; the ball striking the latter over the eye. When the defendant shot, he threw his head back twice and then left the car, and sang a song, "I am going where I have never been before." A witness, Almira Little, testified that she saw the defendant with the pistol in his hand, and when he shot Eborn, and that "it was not any time hardly" after she saw him with the pistol before he fired, and that Eborn was not doing anything when the defendant shot. He had the pistol in his hand when she first saw him, and his hand was resting on his knee. There had been no previous quarrel or altercation between the parties. Another witness saw the defendant take his pistol from his left pocket and carry it around his body to his right hand and hold it behind him "or so that the witness could not see it, long enough to shake hands." He then pointed it, and said, "Look out!" and fired at Eborn, who had a cigar in his mouth. This witness also stated that they had not been mad with each other. Gertrude Little testified: "I was on the excursion that day. Prisoner was my company. Just a little before the train got to Parmalee, prisoner came in and sat in front of me. The seat I was in faced his. Eborn had not been sitting with me at all. I looked out of the window."

The case was not argued in behalf of the defendant in this court, and therefore we are at a loss to know upon what ground it was contended below that there was no evidence of premeditation and deliberation. We can only conjecture that it was thought a sufficient time had not elapsed to weigh the matter and form a definite and deliberate purpose to kill, or that the absence of any previous animosity towards the deceased disproved premeditation, or that the defendant was suddenly aroused to anger when he saw the deceased sitting with his girl, and shot immediately in hot blood, being under the influence of ""furor brevis," and without time to think and form a cool and deliberate purpose to kill. All of these contentions, while somewhat differently stated, are practically one, and the same in substance and in law. It will, of course, not be denied that, where the design to kill is formed with premeditation and deliberation, it is not necessary for it to exist any definite length of time before the killing actually takes place. State v. Spivey, 132 N.C. 989, 43 S.E. 475.

Now, as to the other question. In State v. Lipscomb, 134 N.C. 694, 47 S.E. 45, we said: "There was ample time for deliberation and premeditation by the defendant according to any rule that has been laid down upon the subject. No particular time is required for this mental process of premeditation and deliberation. The question always is whether, under all the facts and circumstances of the case the defendant had previously and deliberately formed the particular and definite intent to kill, and then and there (or at any time afterwards)...