State v. Davis

• Citation: 95 S.E. 48
• Decision Date: 20 February 1918
• Docket Number: (No. 497.)
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. DAVIS.

95 S.E. 48

STATE.

v.DAVIS.

(No. 497.)

Supreme Court of North Carolina.

Feb. 20, 1918.

Appeal from Superior Court, Wilkes County; Carter, Judge.

Clarence Davis was convicted of manslaughter, sentenced to three years' imprisonment, and appeals. Affirmed.

On Sunday afternoon, October 22, 1916, the defendant had gone to the home of Isaac Clark for a visit, and later went to the home of Mrs. Lucy Clark near by. At about dark the deceased, Lewis Shew, and two brothers and a man named Porter came down the road in the direction of Mrs. Clark's, "hollering and cursing." Mrs. Clark went out and asked them to go away. Defendant and Julius Clark then went out to where the boys were. Defendant gave the Shew boys some liquor, and Porter complained that he had been slighted. Defendant then started toward Porter with the bottle, whereupon Porter knocked him down, jumped on him, and beat him. Defendant then went back to the home of Mrs. Clark, and said to her son:

"Julius give me my gun; those boys have not treated me right."

He then went back to the scene of the fight. One witness stated:

"Just after defendant left the house I saw a pistol in his hand. He went back up the road towards the granary or lumber house I spoke about awhile ago. He passed by me, went up there, and met up with the other boys, and the pistol fired. I can't say which one of the boys was closest; I don't know who it was, I don't know whether I heard Davis or Shew say anything before the pistol fired or not. The pistol fired three or four times—I could not say which. Clarence Davis fired the pistol. He was three or four steps, or about that distance, from either one of these boys, when the pistol fired. After the pistol fired I saw one of them kind of go down. At that time I heard some cursing, and heard some one say, 'God damn him, he has killed my brother, and I am going to let him lay down by the side of him and die, too!'"

There was evidence of medical experts that the death was caused by a gunshot wound in the right breast, going through the lung and the right cavity of the heart, and that the wound might have been caused by a long, sharp, round instrument, but there was no evidence that such an instrument had been used.

Simon Peyton Shew, brother of deceased, testified that, with his brothers and Porter, he was coming toward Mrs. Clark's house when the defendant and Julius Clark came up to them in the road. Defendant offered them some liquor, and Porter complained because he had not been offered any. Then he knocked defendant down and got on top of him. After they were parted, defendant went to Mrs. Clark's house and returned with a pistol and shot deceased. The witness then stated:

"I caught the gun, and it fired out through the field. The next time I caught it and jerked it out of his hand and hit him with it. * * * After I hit Clarence Davis a lick or so, I went and looked at Lewis, and he drew up a little bit. I saw he was dead, and went back and hit Clarence Davis several times."

There was much conflicting evidence as to details, but none as to the fact of the homicide, and all showed that it resulted from a drunken brawl, in which all the participants were more or less intoxicated.

John R. Jones and Hackett & Gilreath, all of North Wilkesboro, for appellant.

James S. Manning, Atty. Gen., and Robert H. Sykes, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above). The defendant contended that he did not kill the deceased, but that he was shot by some one else, present at the time of the killing, and who had a pistol of smaller caliber than the one he carried, and offered evidence, including medical testimony, as to the nature and extent of the wound, to prove his contention. During the trial, he entered numerous exceptions to the rulings of the court, as many as 63 in all, but has abandoned 28 of them, and of those that are left there are several which are pointed to the same question, and we will therefore consider them in groups. There are some of them so plainly irrelevant or immaterial as not to require separate discussion, and others taken to rulings which, if erroneous, were manifestly harmless, though we do not mean to imply that they were erroneous. We will consider and discuss those which are vital or substantial, and make only brief reference to some others, which could not have affected the result, even if there had been error.

First. Whether the defendant was cursing or not before the altercation took place was immaterial. It was not contended by the state that he was, and the evidence offered could throw no light upon the question whether—after he had gone to the house and got his pistol, and then returned to the place of the homicide—he fired his pistol and killed the deceased. There was no evidence that he had cursed, up to the time when he was knocked down by Porter, who thought that he had been slighted when a bottle was being passed around. There was nothing to show that, until he was so assaulted, the defendant had acted otherwise than as a peaceable man. His guilt turned upon what he did from that time until the deceased was shot and killed.

Second. The exclusion by the court of the question as to what a witness for the state had said during an examination of him, and other state's witnesses, by defendant's counsel with the permission of the court, is not reversible error, because it does, not appear how the witness would have answered it, or that his answer would have been favorable to defendant; but, on the contrary, there is strong presumption that he would have answered it unfavorably, and counsel admitted that, if he did so, they would not offer evidence to contradict him. It would not be fair to the state or to the witness, if we should permit him to be thus discredited by the mere form in which the question is asked, without some assurance that he will admit the contradiction, or conflict, between his present testimony and his former statement. But it suffices to say that we are not informed as to what his answer would be. Under the circumstances, and with the admissions stated in the record, the defendant could hardly have expected him to say that he had contradicted himself, or, what is more, that he was prejudiced by the ruling. Jenkins v. Long, 170 N. C. 269, 87 S. E. 47, seems to be directly applicable, and shows that there was no reversible error because no prejudice, and there are other cases to the same effect. Hollifield v. Telephone Co., 172 N. C. 714, 90 S. E. 996; Rawls v. Railroad Co., 172 N. C. 211, 90 S. E. 116; McMillan v. Railway Co., 172 N. C. 853, 90 S. E. 683. This covers the five exceptions relating to this question.

Third. The questions as to the character for violence of Lewis Shew, the deceased, and Ernest Porter, were incompetent, because the evidence was not circumstantial, nor was there any showing that the defendant fired the pistol in self-defense. State v. Turpin, 77 N. C. 473, 24 Am. Rep. 455; State v. Exum, 138 N. C. 599, 50 S. E. 283; State v. Banner, 149 N. C. 519, 63 S. E. 84; State v. Blackwell, 162 N. C. 680, 78 S. E. 316. It was said in State v. Banner, supra:

"The exceptions to the rule that the character of the deceased cannot be put in evidence are: (1) When there is evidence tending to prove that the homicide was committed in self-defense; (2) when the evidence is wholly circumstantial, and the character of the transaction is in doubt, " citing State v. Turpin, supra; State v. Byrd, 121 N. C. 688, 28 S. E, 353; State v. McIver, 125 N. C. 646, 34 S. E. 439.

As to whether the witness G. Miller, who remained in court, after an order had been made excluding witnesses, should be permitted to testify as to what occurred at the coroner's inquest was a matter within the sound discretion of the court, the exercise of which is not reviewable here. We so held at the last term of this court in Lee v. Thornton, 174 N. C. 288, 93 S. E. 788, where the question is fully considered, and many authorities cited. In that case the witness was excluded by the court, while here the state was allowed to examine him. See, also, State v. Hodge, 142 N. C. 676, 55 S. E. 791, 9 Ann. Cas. 361, and State v. Lowry, 170 N. C. 730, at page 734, 87 S. E. 62, at page 63, where it is said:

"The prisoners also except because after the court had made an order that no witness for the state or for the prisoners should be allowed in the courtroom during the trial, a witness for the state who remained in the courtroom was permitted to testify. The prisoners moved for a nonsuit on that ground, and also to set aside the verdict, and excepted to the denial of these motions. But it is a matter in the discretion of the court whether such witness shall be examined or not. 12 Cyc. 547. The same point was made in State v. Hodge, 142 N. C. 676 155 S. E. 791, 9 Ann. Cas. 361], and it was held that this was a matter which rested in the discretion of the presiding judge. The same ruling was made in State v. Sparrow, 7 N. C. 487, and Purnell v. Purnell, 89 N. C. 44, and is stated as settled law in the text-books, 1 Greenleaf Ev. §§ 431, 432, and notes; 2 Bishop. New Criminal Proceedings (2d Ed.) §§ 1191-1193a."

It was contended by the defendant in Lee v. Thornton, supra, that the court could not exclude the witness and thereby deprive him of his constitutional right to have the witness heard by the jury, but in this ease the court did what the defendant insisted in that case it was legally right to do. So that in any view the ruling of the court, in this case, was correct.

Fourth. Exceptions, as to the reference of the court in its charge to unconsciousness produced by voluntary drunkenness should be disallowed, as this was said merely for the purpose of illustration, and to...