State v. Freeman

• Decision Date: 20 November 1900
• Citation: 37 S.E. 206,127 N.C. 644
• Parties: STATE. v. FREEMAN et al.
• Court: North Carolina Supreme Court

127 N.C. 644

37 S.E. 206

STATE.

v.FREEMAN et al.

Supreme Court of North Carolina.

Nov. 20, 1900.

AFFRAY—FRIENDLY ENCOUNTER—BURDEN OF PROOF—APPEAL.

1. Where the counter case of the state in a criminal cause has not been served, or the acceptance of service acknowledged thereon, and has not been filed for more than a month after the state has accepted service of the case of the defendants in an appeal by the latter, it will not be considered.

2. A friendly scuffle on a public highway does not constitute an, affray.

3. Where defendants who were indicted for an affray on the public highway admitted that they had a friendly scuffle, but swore that they were not angry, it was error to instruct that, as the defendants admitted that they had engaged in a scuffle, the burden of proof was on them to show that the scuffle was friendly.

Appeal from superior court, Montgomery county; Shaw, Judge.

Robert Freeman and others were indicted for an affray, and from a judgment of conviction certain defendants appeal. Reversed.

Douglass & Simms, for appellants.

The Attorney General, for the State.

FURCHES, J. The defendants, Robert Freeman, Bud McKenzie, Henry Freeman, and Sam McLeod, were indicted for an affray. It seems from the record that all four of the defendants were put on trial, and the jury, "for their verdict, say they find the defendants guilty of simple assault. Judgment: Defendants fined fifty dollars each, and each pay one-fourth of the costs. (State accepted a verdict of not guilty as to defendants Sam McLeod and Henry Freeman.)" And it seems that the defendants Henry Freeman and A. A. McKenzie appealed. It also appears from the record sent up that defendants' counsel made up a statement of the case on appeal, service of which was accepted by the solicitor on the 18thday of April, 1900. There also appears to be a counter case made by the solicitor, which was never served, nor was service accepted by defendants or their attorneys, but on the back of which is marked, "Filed May 28th, 1900."

The counter case not having been served or acknowledged, and not having been filed until the 28th of May, more than a month after service was accepted by defendants, the counter case on appeal was too late, even if we were to hold that the word "Filed" of itself was sufficient to comply with the statute (section 550 of the Code). We will therefore have to be governed by the case made by the defendants; and, as we have to be governed by the defendants' statement of the case, we will say that, while there Is some difference In the statement of facts in the two cases, there is very little difference In that part of them upon which our opinion is based. The "case" states that "all the evidence In the case tended to show that the defendants were under the influence of liquor, and while returning from a fishing party along the public road, in company with various other parties, engaged In a friendly scuffle, when the defendant A. A. McKenzie caught his foot under a pole and fell, and the defendant W. R. McKenzie also fell over the same pole, and fell on the defendant McKenzie. ...