State v. Gray
| Decision Date | 02 April 1913 |
| Citation | 77 S.E. 833,162 N.C. 608 |
| Parties | STATE v. GRAY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Union County; Peebles, Judge.
Moore Gray was convicted of manslaughter, and appeals. Reversed and new trial ordered.
Where the evidence showed that decedent and others attempted to enter accused's house in the night without cause and fired a pistol outside, and that decedent threatened to shoot accused, held, that it was error to instruct that the killing was justifiable on such facts only if the jury should find that one of the men outside was armed with a pistol.
This was an indictment for murder. At the commencement of the trial, the solicitor stated that he would not ask for a verdict of murder in the first degree, but for murder in the second degree or manslaughter, as the jury might find the facts to be. The defendant admitted killing the deceased with a deadly weapon, but pleaded that the killing was done in the necessary defense of himself, his family, and his habitation.
The defendant testified in his own behalf as follows: "My name is J. Moore Gray. I am 57 years old. I am the defendant in this case. Deceased was killed at my house on the night of Saturday, September 28th. I had been at work that day at Mr Myer's lumber shop. I went home about dark, and went to bed between 9 and 10 o'clock. My wife, my two daughters Minnie Gray and Ethel Knight, were there. My two little girls, Belle and Lila, five and seven years old, were there. Mr. William Tarlton was there, too. He had come to call on my daughter Minnie. Deceased and three other men came to my door between 11 and 12 o'clock. I have since learned that the other three men were Glenn Wolfe, Earl Helms, and John West. They came to the door and tried to get in. They began cursing and kicking at the door. Minnie came and woke me up. She said get up, that there were some men trying to break in. I got up and started to the door. I could see deceased through the glass of the front door. He was taller than the rest, and had a rag tied around his head. As I stepped out into the hall, I saw the flash of a pistol, and heard it shoot. Deceased shot the pistol. I could see it in his hand. I went to the door and told the men to leave. I had no gun at that time. Deceased said he was coming in. I said, 'Go on away.' He said, 'Stick your old soap gourd out here, and I'll put light holes through it.' He said, 'G-- d-- you, I'm coming in there after you.' He had been kicking at the door. He was out there cursing. He said 'I'm coming in at the G-- d-- window.' He ran towards the window in direction of Charlotte, and I heard glass fall. Some of my folks pushed bed against window. He said, 'G-- d-- you, you have darkened that hole, but I'll come in another.' He then started towards the other window-- the one towards Monroe. As he passed the front door, he kicked it. I had stepped back, and got my shotgun when he went to kick out the window towards Charlotte. He then went to the other window (towards Monroe), and was raising his foot to kick it out, and I threw up my gun and shot. I didn't take aim. I cracked front door open to shoot. He was cursing and raising his foot to kick out the window when I shot. This was the window on the east end of porch. I had no ill feeling against deceased. I did not know him, and had never seen him before. I shot him to keep him from coming in my house and killing me He was out there, cursing and swearing that he was coming in, and was going to shoot light holes through my head if I poked it out. There were three other men with him. My little children were crying and screaming. I had ordered these men to leave a number of times. I asked them to leave before I got the gun. I was afraid they would kill me or some of my folks, or do us some bad harm. I was not mad at deceased. I was afraid of him and the other men with him. I saw four men standing at the door when I got up. I could tell deceased was the man doing the cursing, for he was taller than the rest, and had a rag tied around his head. Deceased was not running when I shot. He was raising his foot to kick out the window. I did not shoot deceased because I was mad. I was too scared to be mad. After I shot, I went back in the front room. I loaded my gun, and laid it on the bed. The other fellows ran when I shot, but I didn't know but that they would come back and try to do something to me. I have never been in court before in my life. there was other evidence corroborating the defendant, and evidence on the part of the state contradicting him.
The defendant, among other things, requested his honor to charge the jury as follows: "If the jury find from the evidence that the defendant shot the deceased while the deceased was manifestly intending and endeavoring in a violent manner to enter the habitation of defendant, for the purpose of assaulting or offering personal violence to him, or to any member of his family being therein, then the killing would be justifiable, and the jury should find the defendant not guilty." "The court charges you that when a man is in his own home, and has done nothing to provoke assault,...
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