State v. Garrett

• Decision Date: 30 June 1863
• Citation: 60 N.C. 144,84 Am.Dec. 359
• Court: North Carolina Supreme Court
• Parties: STATE v. WILLIAM B. GARRETT et al.

60 N.C. 144

84 Am.Dec. 359

STATE

v.WILLIAM B. GARRETT et al.

Supreme Court of North Carolina.

June Term, 1863.

Where a defendant in a State's warrant, charging a misdemeanor, put himself in armed resistance to the officer having such warrant, and the officer, in an attempt to take defendant, slew him, without resorting to unnecessary violence, it was held that he was justified.

The principle of self-defense does not apply to the case of one who puts himself in the posture of armed defiance to the process of the State.

One to whom a State's warrant is specially directed, is bound to show it, and read it, if required; but where the defendant, in such warrant, had notice of the process, and was fully aware of its contents, and had made up his mind, beforehand, to resist its execution, it was held that the officer did not become a trespasser ab initio, by refusing to produce his warrant on demand.

THIS was an indictment for MURDER, tried before SAUNDERS, J., at the Fall Term, 1862, of Buncombe Superior Court.

The defendant, William B. Garrett, and the other defendants, ten in number, were put upon their trial for the murder of Uriah C. Burns.

Sarah Burns, the widow of the deceased, was sworn on behalf of the State, and testified that on Tuesday, 2nd of June, 1862, Garrett came to the other side of the creek near where she lived; that her husband had gone into his field with his gun; that she heard Garrett call to him and tell him he had a warrant against him; that deceased asked to see the warrant or hear it read, both of which Garrett refused, but demanded that the defendant should submit; that the deceased proposed to send his daughter to read it, which also was refused by Garrett; that deceased then told Garrett, he had no right to arrest him, but if the sheriff or coroner would come with the warrant he would submit; that on the next day Garrett and the other prisoners, with a half dozen other persons, came to the house of the deceased, all armed; that when getting within two hundred yards, they arrested John Burns, the son of the deceased; that deceased, herself and their daughter, went out to see what was the matter. The deceased having his gun, met the party in the lane, where Garrett again told him he had a warrant against him, but refused to show, or read it; the deceased again told him that he and his party were his enemies, and they were a d--d set of tories, and he would not be arrested by them; that none but the coroner had a right to arrest him, as he was a deputy sheriff; that Garrett and all his party presented their guns, but she cried out for them not to shoot, to which Garrett replied, he would not shoot if Burns would not; that Bob Burchfield was 150 yards off and came up after her husband was killed; that when her husband was shot he had one foot on the fence and muzzle of the gun down and not pointed. The solicitor for the State here rested the case.

The prisoners' counsel then produced the States' warrants on which Garrett acted; they were in proper form, and on the back of them was a regular deputation, these were for an assault and battery on Adeline Burns, and to hold them to the peace in behalf of the said Adeline Burns, and were against Uriah C. Burns and his wife and son and daughter.

Adeline Burns was then introduced for the defendants, who stated that the deceased, his wife and son, committed a violent assault and battery on her person, and she applied to a justice of the peace for warrants, and having obtained them, she offered them first to one and then to another deputy sheriff of the county, who refused to take them; she then applied to Garrett, who refused to take the papers unless he was regularly deputed by the sheriff, which was done; she further stated, that she witnessed what passed at the creek between Garrett and Burns, on which Garrett informed Burns of the warrants in his hands, but he declared he would not submit; that no one had a right to arrest him but a coroner or sheriff.

James Wiggins testified to the issuing of the warrants, the deputation and that the justice swore Garrett to execute them faithfully; that on meeting at his house the night before, Garrett gave the posse, summoned by him, certain instructions touching the execution of the warrants, which it was proposed to prove, but being objected to by the solicitor for the State, the Court refused to admit it for the present.

Reuben Hodge testified, that the deceased advanced to the lane where Garrett and his guard were; that he had his gun, his wife an axe, and his daughter a knife; that the deceased pointed his gun at the parties three times as he went to the fence; that he presented it in getting on the fence; that he heard the cry, “don't shoot,” and heard no one say, “shoot.”

S. P. Miller testified, that he was at Wiggins' the night before, and told Burns they were coming to arrest him, when he declared he would not be arrested by them; that the party first arrested John; that when witness first went to the parties, in the lane, Garrett and Burns had their guns pointed at each other; that Garrett said, “if you wont shoot I wont;” who pointed first, witness could not tell; they then lowered their guns; Burns then turned towards Sam. Birchfield, who was about ten yards off, and said, “I will get you,” at the same time advancing towards the fence with his gun pointed towards Birchfield, who then got behind some bushes; that as Burns was in the act of getting over the fence with his gun in left his hand, and not pointed at any one, he heard Morris say, “damn him, shoot him, or he will shoot some of us;” that on the instant, Birchfield fired and Burns fell....