State v. Gilchrist
| Decision Date | 14 November 1893 |
| Citation | 18 S.E. 319,113 N.C. 673 |
| Parties | STATE v. GILCHRIST. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Richmond county; Connor, Judge.
Daniel Gilchrist, convicted of murder, appeals. Affirmed.
There was evidence that the prisoner and the deceased, Frank McKay had some difficulty a short time before the homicide, and that prisoner had made threats against deceased. There was evidence tending to show that prisoner killed deceased by waylaying him on the road on which deceased was returning from his work at night; that prisoner concealed himself behind some trees on the side of the road, and, as deceased was passing by, knocked him on the head with an axe, killing him instantly. This was the only evidence as to the manner of the killing. The prisoner asked the court to instruct the jury that there was no evidence of murder in the first degree. This was refused, and the court instructed the jury that the prisoner was guilty of murder in the first degree or nothing. The only evidence in regard to the time of the killing was that it was committed on a Thursday night, in February, 1893. The indictment charged the offense to have been committed on the 9th of February, 1893. Thursday was the 9th of February. The jury rendered a verdict of guilty in manner and form as charged in the indictment. The prisoner moved for a new trial, upon the ground that the jury, in their verdict, did not determine whether the homicide was murder in the first or second degree, and for error in that the court refused to give the instruction asked for. The motion was refused, and the prisoner excepted. A motion in arrest of judgment was also made, because the jury did not determine in their verdict whether the homicide was murder in the first or second degree. Prisoner excepted, and appealed from the judgment.
Act Feb. 11, 1893, dividing murder into two degrees, includes, in the first, all murder perpetrated by any kind of willful deliberate, and premeditated killing, and in section 3 declares that the existing form of indictment is not altered but the jury shall determine the degree in their verdict. An indictment following the form authorized in Laws 1887, c. 58, presented that the accused with force and arms, feloniously, willfully, and with malice aforethought, did kill and murder, etc. The evidence showed murder in the first degree or nothing, and the court so charged. The verdict was guilty of the felony and murder in the manner and form as charged. Held a good conviction of murder in the first degree.
The Attorney General, for the State.
The bill of indictment was drawn under the form authorized in chapter 58 of the Laws of 1887, and reads as follows "The jurors for the state, upon their oath, present that Daniel Gilchrist, late of the county of Richmond, with force and arms, at and in said county, on the 9th day of February, A. D. 1893, feloniously, willfully, and with malice aforethought, did kill and murder one Frank McKay, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." At the time of the passage of the act of 1887, there were no degrees in the crime of murder in this state, but on the 11th day of February, 1893, an act was passed "to divide the crime of murder into two degrees, and define the same." This act read as follows: ...
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