State v. Fanning

• Citation: 94 N.C. 940,53 Am.Rep. 653
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1886
• Parties: STATE v. J. A. FANNING.

94 N.C. 940

53 Am.Rep. 653

STATE

v.J. A. FANNING.

Supreme Court of North Carolina.

February Term, 1886.

INDICTMENT for an affray, tried before Avery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of HENDERSON county.

The defendant and two others, Samuel P. Brittain and J. W. Brittain, of whom the latter died before trial, and a nol pros was entered as to the former, are charged with committing an affray, and mutually assaulting and beating each other.

The defendant, upon his plea of not guilty, was tried and convicted before the jury, at Fall Term, 1885, of Henderson Superior Court.

It was in evidence that one Few, the owner, had leased a store house in the town of Hendersonville to the said Samuel P., consisting of a front and rear room, and that himself and the defendant were interested as partners in a billiard table and bar, kept in the latter room.

A witness introduced for the State, W. D. Miller, testified as follows:

“I saw Samuel P. Brittain cross the street, and with his son J. W. Brittain, enter an adjacent drug store, come out, and go to the door of the store room, which he made an effort to break open. The defendant, standing in front of the drug store, said to him, “Don't break the door open,” to which Brittain replied with an oath, “I will do so.” The defendant then passed into the drug store, and came out with his gun in his hand. Brittain forced the door open, and with his son, entered the room, the defendant closely following with his gun. I heard words, apparently angry, within the room where the parties were. In a few moments the defendant came out, walking backwards, closely followed by the two Brittains, the son behind the father, and the father with an uplifted board over the defendant's person, and the latter with his gun in both hands, and as they reached the sidewalk, the said Samuel P. struck the defendant with the board, and at the same moment the gun fired. A second blow was given the defendant with the same instrument, and again the gun exploded.

The gun was in the defendant's hands, pointing upwards. I cannot say if it was pointed towards Brittain, or any one else. The latter advanced out into the street, the defendant giving way before him, and while the fight was going on, the said J. W. Brittain discharged his pistol several times at the defendant. I then interposed and made them desist.”

The defendant, examined on his own behalf, testified thus:

“The store-house had been rented by Samuel P. Brittain, and he and myself had an arrangment, that in case the prohibition law should cease to be operative, we would together open a bar in the front or store room, and meanwhile he consented to my keeping and selling corn and flour in that room. We both had keys to the room.

In the morning of the day when the difficulty took place, Brittain had the corn and flour removed to the back room, and I had it replaced in the store-room, and fastened the entrance in front, by nailing strips across the doorway. On returning from a bird hunt, with a double-barrel shot-gun, I deposited it in the drug-store, where it was usually kept, though sometimes it was left in the billiard-room, where I slept. Brittain, the father, said he would go into the store-room in three minutes, and thereupon passed over the street, and talked with his son, who came with him to the front door--passing by the drug-store, and taking a hatchet therefrom, which was used in forcing the door open. I went into the drug-store about the time that Brittain crossed the street, and got my gun and came out. I forbade the breaking open the door, but it was done, and as Brittain entered, I followed him, but was immediately ordered out. I started to back out through the door, when Brittain drew over my head a piece of plank or scantling about 6 feet long and 1 1/4 by 2 1/2 inches thick, while his son drew a pistol, and both pursued me out of the door. I then turned round, hearing foot-steps hurrying behind, and as I did so, received a blow on the head from the scantling, at the same time throwing up the gun to ward it off, but with no intention of firing it. The blow caused both barrels to explode, and the gun was broken. The son fired several times at me while this was going on. I I went out of the drug-store with the gun, before Brittain entered it, and my sole purpose was to carry it to my room, and not to use it in any difficulty between us.”

There was other evidence, but the...