State v. Dills

• Decision Date: 02 January 1929
• Docket Number: 575.
• Citation: 146 S.E. 1,196 N.C. 457
• Parties: STATE v. DILLS et ux.
• Court: North Carolina Supreme Court

146 S.E. 1

196 N.C. 457

STATE v. DILLS et ux.

No. 575.

Supreme Court of North Carolina

January 2, 1929

Appeal from Superior Court, Macon County; Walter E. Moore, Judge.

Allen Dills and Ida Dills were convicted of murder in the second degree, and they appeal. New trial.

Whether wife aided husband in unlawful assault on deceased, or only in lawful defense, held required to be explained and submitted to jury.

Moody & Moody, of Murphy, and R. D. Sisk, of Franklin, for appellants.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

ADAMS J.

The defendants, husband and wife, were indicted for the murder of Dave Waldroop, but were not prosecuted for murder in the first degree. Their testimony in almost every essential element is diametrically opposed to that of the prosecution. The homicide occurred on March 24, 1928. The defendants their child, and Bill Shope, a brother of the female defendant, occupied a house situated on the side of a mountain, and in front of the house was a rugged road, across which ran a branch a short distance lower down. About 125 feet up the mountain, on the same side of the road, was a house in which Mack Waldroop (a son of the deceased) and his wife lived, and about 300 feet farther up the road was another house, occupied by the deceased and his other sons Luther and Rufus. The record indicates that the men other than Shope were tenants of Ed Cruse, the Waldroops having recently moved to the land.

The state offered evidence tending to show that on the day of the homicide, at 8 o'clock in the morning, Mack Waldroop heard Ida Dills "talking vicious" to his wife fulminating accompaniments agitating her rhetoric; that she retired after aiming a loaded gun first at his wife then at him; that Allen Dills came to a sidegate about 30 minutes afterwards flourishing an automatic pistol and menacing fatal injury, not only to Mack Waldroop and his wife, but to the deceased and his other sons who had recently appeared; that Allen went away, apparently content with a threat to take Mack's life before 12 o'clock; that about this hour Mack drove his mules to the branch to water them; that as he passed Allen's house he was assaulted by the defendants and Bill Shope--by Allen with his "automatic," and by Ida with a club, Shope meantime holding Mack's shoulder and afterwards using a stick; that the deceased came up unarmed and tried to quiet the assailants, whereupon Allen Dills shot the deceased through the heart and caused his instant death; that Allen then pointed his pistol at Mack and that Luther fired a shotgun at Allen and wounded him.

On the part of the defendants there was evidence tending to show that in the mêlée between Allen's wife and Mack's wife each had a gun; that the encounter between Allen and Mack at 8:30 was a harmless "cuss-fight"; that Allen was going across the road for stovewood when he met Mack at 12 o'clock; that no assault was made on Mack; that the deceased was the aggressor, assaulting Allen with a pistol, and that Allen shot the deceased in self-defense.

It would clearly have been error to dismiss the action as to Ida Dills. There is ample evidence for a reasonable inference that the assault on Mack, immediately before the fatal shot, was the result of a concerted agreement between Shope and the defendants, and that the shot fired by Allen Dills was in legal effect the deed of all. State v. Bowman, 152 N.C. 817, 67 S.E. 1058; State v. Merrick, 171 N.C. 788, 88 S.E. 501. It was testified that they turned Mack loose and made a joint assault upon the deceased the moment they saw him. There being evidence of a preconceived purpose and a joint assault, it would have been an inadvertence to hold that Ida Dills was excusable merely because she did not actually compass the homicide. State v. Finley, 118 N.C. 1162, 24 S.E. 495.

There was error, however, in the instructions given the jury. His honor charged the following as the essential elements of self-defense: (1) The defendant must be free from fault, that is, he must not say or do anything for the purpose of provoking a difficulty, nor must he be disregardful in this respect of any wrongful word or act; (2) there must be a present impending peril to life or great bodily harm, either real or so apparent as to create the honest belief in the mind of the defendant that there is an existing necessity to take the life of the person intended to be killed at the time he attempts to take it...