Appeal
from Superior Court, Randolph County; Long, Judge.
L. R
English was convicted of murder in the second degree, and he
appeals. Affirmed.
Though
a juror has formed an opinion, from what he has heard and
read, as to defendants' guilt, and still has that
opinion, yet he testifying that he can, and if accepted as a
juror will, try the case on the evidence alone, and reach a
fair and impartial decision, regardless of any such opinion
overruling challenge to him, which is discretionary, is not
error.
The
defendant was indicted in the superior court of Randolph
county for the murder of John H. Armstrong; the homicide
having been committed on March 24, 1913. The trial took place
at July term, 1913, when defendant was convicted of murder in
the second degree, and was sentenced to imprisonment for 25
years.
The
special nature of the defense is indicated by the following
testimony, taken from the record: "On the trial
evidence was offered by the state showing that the defendant
and the deceased were engaged in the business of leasing
lands and looking after lodges for hunting purposes, the
defendant for the
Archdale Shooting Club, and the deceased for George Gould
and that the deceased succeeded in leasing some lands which
the defendant wanted, and the defendant had gotten mad with
the deceased on that account, and had cursed him, and had
some time before that threatened to kill him; that on the
24th of March, 1913, about 5 o'clock in the afternoon,
the deceased, who lived near High Point, came through
Archdale, returning to his home, and stopped near the house
of Mr. Horace Ragan in order to see Mr. Ragan about the
purchase of some cattle; that the deceased was traveling in
an automobile, and accompanied by William White; that they
found Mr. Ragan, and while looking at the cattle, which were
in a lot belonging to Mr. Ragan, and immediately in the rear
of the defendant's house, the defendant saw deceased, and
went to his barn, hitched his horse to his buggy, and drove
up to where he had seen the deceased and Ragan standing;
while he was hitching his horse to his buggy, the deceased
and Ragan had gone in an opposite direction away from
defendant's house to Mr. J. L. Freeman's to look at a
pony, several hundred yards from where the defendant had seen
them, and out of his sight; that defendant was seen to drive
in his buggy up to the place where the deceased had left his
automobile, and where defendant had seen deceased and Ragan
standing, and peering around the automobile and into a barn
near by as if he were looking for some one; that the roads
fork at the place where the defendant had driven up, and he
first went up one fork of the road, and, seeing nothing of
the deceased, he came back, and placed his buggy in the forks
of the road between the deceased's automobile and
Freeman's, so that whichever way the deceased returned he
would have to pass the defendant; that the defendant waited
there until the deceased, and Ragan, and White, and Freeman,
and his son returned from looking at the pony; that defendant
allowed Ragan and White to pass him without interference,
while deceased had stopped close by to speak to Mr. Moses
Hammond and George Miller, who stood at Hammond's gate
and within a few yards of the buggy; that deceased, after
shaking hands with Hammond and Miller, approached the buggy
in which the defendant sat, spoke to defendant, shook hands
with him, and, as deceased turned away to go on with Ragan
and White, defendant called to him, and said, 'I have
something for you,' and as he spoke drew his pistol, and
fired at the deceased; that deceased was unarmed, and dodged,
and ran to a tree very close by, and as he ran, just before
he reached the tree, the defendant shot again, hitting the
deceased in the back, the bullet penetrating the intestines
in 21 places, and inflicting a wound of which the deceased
died the next day; that after the defendant had shot the
deceased, and deceased had gone behind the tree, the
defendant turned and fired twice at George Miller, who stood
on the opposite side of the road, and towards whom it was
shown that he had very bitter feeling, and whom he had
threatened to kill; that, after firing five times, the
defendant reloaded his pistol, and, when Ragan and White
picked up the deceased to carry him to Ragan's house,
defendant followed them along in his buggy until he heard the
deceased say that he was killed, and was going to die, when
defendant turned and went on to his house, put up his horse
and buggy, returned to his house, went out on the porch, drew
his pistol, and called to his wife to come and see him finish
what he was going to do; that some neighbors came in, and
took the pistol from the defendant, and shortly thereafter he
left his home, went into the woods, and remained there until
about noon the next day, when he was found and arrested. The
defendant testified that about five years ago his first wife
died, and shortly thereafter he began to take morphine, and
continued to take it, in the form of what is called papine,
for about three years; that papine is a liquid preparation
sold in eight-ounce bottles, and contains eight grains of
morphine and 11 per cent. of alcohol; that he contracted the
morphine habit, and for 7 1/2 months he used as much as eight
ounces of papine a day, thereby taking eight grains of
morphine and a quantity of alcohol daily, in consequence of
which he was taken to a sanitarium, and treated, and cured of
that habit; that shortly afterwards he began to use whisky,
drinking as much as a quart a day for two years before the
homicide; he took a drink of whisky in Dr. Tomlinson's
office, and from that time until after the killing his mind
was utterly blank, and that he did not come to himself until
after the shooting, when he heard his wife scream; and that
when he heard his wife scream he came to himself. Defendant
also offered the evidence of certain witnesses that at
different times during a period of four or five years they
had seen the defendant when they thought he was in such a
mental condition that he did not know what he was about. All
the witnesses who saw the homicide, six or seven in number,
some of whom had known the defendant all his life, testified
that defendant was cool and deliberate in what he did, and
that his mind was all right, and that he knew what he was
doing, and other witnesses for the state testified that they
had known him for years, that they had had business
transactions with him on the very day of the homicide and but
a few hours before, and that the defendant was perfectly
sober, and that his mind was all right and just as good as
that of any average man. One of these witnesses, Mr. Woodall,
who lived in Archdale, in plain view of the defendant's
house and premises, and who saw the defendant drive up in his
buggy, apparently looking for some one at the place where the
deceased had driven up in his automobile, testified that he
heard the shots fired, and
heard the defendant's wife scream, and he ran down to see
what had happened, and saw the defendant sitting in his buggy
with a pistol in his hand, and found the deceased wounded and
being carried to the house of Horace Ragan. The witness lived
about 250 yards from the house of the defendant, and about
150 yards from where the shooting occurred."
With
reference to the plea of insanity, and the effect of
intoxication or the liquor and morphine habit upon the
defendant's mental state or condition, the court, at
defendant's request, gave the following special
instructions:
"(1)
The jury is instructed that, although they might find from
the evidence that the defendant committed the criminal act
in the manner and form as charged in the indictment, still,
if the jury believe from the evidence that at the time he
committed the act he was so affected by long and continued
use of alcoholic liquors or drugs, or both, that he did not
know the nature of the act, whether it was wrongful or not,
and did not know his relations to others, and that such
mental deficiency was induced by antecedent and
long-continued use of such intoxicating drinks or drugs,
and not the immediate effects of intoxication, then the
defendant cannot be held criminally responsible for such
act, and the jury should find the defendant not guilty.
(2) In
determining the question whether the defendant was insane at
the time of the alleged commission of the crime, the jury are
to consider all of his acts at the time of, before, and since
the commission of the crime, as such acts and conduct have
been shown by the evidence, and the jury should consider the
defendant's appearance and actions at the time of,
before, and after the commission of the offense, and, if the
jury is satisfied from the evidence that at the time
defendant shot the deceased defendant was so affected in his
mind and memory that he was not able to distinguish right and
wrong, and had no knowledge and understanding of the
character and consequences of the act, and power and will to
abstain from it, then he was not a legally responsible being,
and the jury should find [defendant] not guilty.
(3) The
court instructs you that, if you are satisfied from this
evidence that if the prisoner was of insane mind to such an
extent that he was not conscious of the nature of the act he
was doing, then you ought to acquit him on the ground of
insanity.
(4) The
court instructs you that, if you are satisfied from the
evidence in this case that at the time of the commission of
the offense the defendant was suffering from mental
aberration or sickness of mind produced by any cause, and by
reason thereof his judgment, memory, and reason were so
perverted or dethroned...
