State v. Hardee

• Decision Date: 17 November 1926
• Docket Number: 321.
• Citation: 135 S.E. 345,192 N.C. 533
• Parties: STATE v. HARDEE et al.
• Court: North Carolina Supreme Court

135 S.E. 345

192 N.C. 533

STATE v. HARDEE et al.

No. 321.

Supreme Court of North Carolina

November 17, 1926

Appeal from Superior Court, Durham County; Daniels, Judge.

Joe Hardee and another were convicted of murder in the second degree, and they appeal. No error.

The defendants were indicted for the murder of one Robert Steele and were convicted of murder in the second degree. From the judgment pronounced they appealed, assigning error.

There is evidence tending to show the following circumstances About noon on Sunday, May 23, 1926, Clark, Moore, Andrews and the defendants went from Carboro to the home of the deceased in the city Durham. There Everett Hardee bought two bottles of liquor from the deceased and soon afterwards all were more or less under the influence of drink. Mrs. Steele wife of the deceased, was across the street at Victoria Brown's. Returning home, "she went into the house after these five men." She found them in the kitchen around a table on which there was a half pint of whisky. Moore and Clark were the first to leave. She knocked a glass from her husband's hand and Andrews cursed and struck her. She ran Andrews into the street, but he went back to the house and tried to get in at a window. She then struck at Andrews with a baseball bat and he moved on. She, her husband, and the defendants were at the front door. She started for a policeman and Everett knocked her down in the street and took the bat from her. The deceased caught Everett around the neck; Everett "slung him loose, hit his face with the bat, knocked him down, stepped across him, and stood over him and hit him in the head like he was mauling rails." Death resulted in a few days. There was evidence that Joe was present aiding and abetting.

Much of the material evidence for the state was contradicted by that for the defendants. There was evidence that Mrs. Steele assaulted the defendants with a pistol and a bat and that Joe, in self-defense, struck the deceased with the bat, and that Everett did not strike him at all. A minute account of the difficulty is not necessary to an understanding of the exceptions.

R. O Everett, of Durham, and Gattis & Gattis, of Hillsboro, for appellants.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty Gen., for the State.

ADAMS J.

The defendants assign for error the alleged failure of the trial judge to declare and explain the law of manslaughter. C. S. § 564. We have insistently adhered to the doctrine that, where a person is indicted for a crime, and under the bill he may be convicted of a lesser degree of the same crime, and there is evidence tending to support the milder verdict, the person charged is entitled to have the law with respect to the lesser offense submitted to the jury under a correct charge; also that a statement of the contentions or of certain phrases of the evidence accompanied with a mere enunciation of a legal principle is not a compliance with the statute. State v. Lee, 192 N.C. 225, 134 S.E. 458; Watson v. Tanning Co., 190 N.C. 840, 130 S.E. 833; Wilson v. Wilson, 190 N.C. 819, 130 S.E. 834; State v. Williams, 185 N.C. 685, 116 S.E. 736.

As there was some evidence of manslaughter, it was incumbent on the judge in his instructions to the jury to declare and explain the law applicable to this offense. C. S. §§ 564, 4639. It is apparent from the verdict that the jury accepted the state's contention as to the circumstances of the homicide; i. e., that Everett Hardee struck the fatal blow and that Joe Hardee was present aiding and abetting. In the charge manslaughter was defined, the burden of showing to the satisfaction of the jury circumstances to reduce the homicide from murder in the second degree to manslaughter was properly placed upon the defendants, and then the specific instruction was given that, if Everett Hardee saw the deceased approaching him with a drawn knife in a threatening attitude, and, being armed with a baseball bat himself, entered willingly into a fight with the deceased, both being armed with deadly weapons, and not in self-defense, and inflicted a blow with the bat which resulted in the death of the deceased, he would be guilty of manslaughter. It will be noted that the instruction carefully distinguishes the willingness to fight in the beginning from fighting in self-defense, as explained in other parts of the charge, and states the law as declared in State v. Harrell, 107 N.C. 944, 12 S.E. 439; State v. Crisp, 170 N.C. 785, 87 S.E. 511; State v. Wentz, 176 N.C. 745, 97 S.E. 420. The principle laid down in State v. Baldwin, 155 N.C. 496, 71 S.E. 212, Ann. Cas. 1912C, 479, and State v. Pollard, 168 N.C. 116, in reference to fighting willingly at any time up to the fatal moment, has no application. The jury was told further that, if Everett was guilty of manslaughter, and Joe was present aiding and abetting when the assault was made, he also would be guilty. Of these instructions the defendants cannot justly complain. There was no evidence to justify an application of the doctrine of cooling time. State v. Powell, 168 N.C. 134, 83 S.E. 310; State v. Robertson, 166 N.C. 356, 81 S.E. 689; State v. Jarrell, 141 N.C. 722, 53 S.E. 127, 8 Ann. Cas. 438.

Three prayers for instructions were tendered by the defendants, the substance of which, applicable to various phases of the evidence, was this: If Joe Hardee had reason to believe and did believe that it was the purpose of the deceased to take his life or to inflict great bodily harm, he had a right to protect himself and secure his own safety, and, if in doing so he killed the deceased with a baseball bat, he would not be guilty of any crime. His honor gave the several prayers but modified them by adding as a proviso that the defendant did not enter into the fight willingly and did not use more force than appeared necessary to repel the assault. The prayer as tendered might well have been refused, and the further instructions certainly deprived the defendants of no substantial right. To avail himself of the plea of self-defense the defendant must show that he is himself without fault. State v. Crisp, supra; State v. Kennedy, 169 N.C. 326, 85 S.E. 42, L. R. A. 1915F, 656; State v. Robertson, supra; State v....