State v. Dowden

• Decision Date: 19 May 1896
• Citation: 118 N.C. 1145,24 S.E. 722
• Court: North Carolina Supreme Court
• Parties: STATE. v. DOWDEN.

24 S.E. 722

118 N.C. 1145

STATE.

v.DOWDEN.

Supreme Court of North Carolina.

May 19, 1896.

Murder—Premeditation—Lapse op Time—Burden of Proof—Instruction.

1. While an instruction that on proof of killing with a deadly weapon the burden shifts upon the prisoner to rebut the presumption that he was guilty of murder, without specifying the degree, is not to be commended, the error was cured by a subsequent portion of the charge, instructing the jury as to the meaning of "premeditation, " and its necessity as an element in murder of the first degree, and adding that when the state asks for a verdict of guilty of murder in the first degree the law requires the state to satisfy the jury, beyond a reasonable doubt, that the case is not only of murder, but of murder in the first degree.

2. When the purpose of killing is weighed long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, it is put into execution, there is sufficient premeditation and deliberation to constitute murder in the first degree.

Appeal from criminal court, Halifax county; Mearis, Judge.

Henry Dowden was convicted of murder in the first degree, and appeals. Affirmed.

The prisoner, Henry Dowden, was indicted and tried upon a charge of murder at the February term of the circuit criminal court of Halifax county, A. D. 1896. The prisoner was found guilty of the crime of murder in the first degree, and the judgment of the court was duly prayed, and the prisoner was sentenced by the court to be hanged on the 17th day of March, A. D. 1896. No exceptions were taken on the trial to any of the rulings of the court, and no prayers for instructions were offered or asked for by the prisoner's counsel.

The portion of the charge discussed in the opinion is as follows: "When one human being kills another, the law calls it 'homicide.' There are various degrees of homicide, viz. murder, manslaughter, justifiable and excusable homicide; and the degree of the homicide must be determined by the attending circumstances. The highest and most heinous form or degree of homicide is that of murder. When a person of sound mind kills another human being with malice aforethought, either expressed or implied, it is a case of murder. You will bear in mind that malice is an essential ingredient of the crime of murder. There can be no murder where the killing is unaccompanied by malice. [The court here fully explained the difference between expressed malice and implied malice.] Where a homicide has been committed, and the accused is indicted and charged with the crime of murder, and the accused, on his trial, admits the killing, or the state fixes the killing upon the accused beyond a reasonable doubt, then the burden shifts from the prosecution to the accused, of showing what is the degree of homicide, —whether it be a case of murder or of manslaughter, or justifiable or excusable homicide; that is to say, it devolves upon the accused to show such mitigating circumstances attending the killing, if there be any, as will reduce the degree of homicide from murder to manslaughter, or to justifiable or excusable homicide. But in doing so the accused is allowed to avail himself of all of the testimony introduced upon the trial of the case, as well that which has been introduced by the state as that which has been introduced by himself; and if neither the testimony introduced on the trial by the accused, nor that introduced by the state, will show any mitigating circumstances attending the killing, then it is a case of murder."

Argo & Snow, for appellant.

The Attorney General and MacRae & Day, for the State.

AVERY, J. Counsel for the prisoner contended that the charge of the court came within the condemnation of the ruling in State v. Fuller, 114 N. C. 898, 19 S. E. 797, in that the definition of murder in the first degree was left in doubt and uncertainty, and the jury were liable to be misled by inconsistent propositions of law contained in different portions of it. It is probable that the instruction would have been more clearly understood by the...