State v. Horn

• Decision Date: 07 May 1895
• Citation: 21 S.E. 694,116 N.C. 1037
• Court: North Carolina Supreme Court
• Parties: STATE . v. HORN.

21 S.E. 694

116 N.C. 1037

STATE .

v.HORN.

Supreme Court of North Carolina.

May 7, 1895.

Manslaughter.

In a prosecution for murder there was evidence that defendant had made threats against the life of deceased, but that subsequently, on the day of the homicide, the men were on friendly terms, and that the immediate provocation to the crime was the shooting of defendant's brother by deceased. Held, that the jury should have been instructed that, if they found these facts, defendant could be convicted of manslaughter only, since, after the reconciliation, the law would presume the crime to be due to the new and sudden provocation, not to previous malice.

Appeal from superior court, Robeson county; Brown, Judge.

Henry Horn was convicted of murder, committed in 1882, and appeals. Reversed.

French & Norment and Herbert McClammy, for appellant.

The Attorney General, for the State.

FURCHES, J. We do not think defendant's exceptions to the reply of the court to the questions asked the court during the argument of the case to the jury can be sustained. We do not know whether they are excepted to as being out of time or as being erroneous. But we do not think they can be sustained on either ground. If the exceptions are put on the question of time, it would seem they were made in response to questions addressed to the court by defendant's counsel; and it may fairly be inferred that the counsel for defendant wished to know the views of the court at that time, that he might the better know how to direct his argument, and that the court so understood him; and, whether this was the object of counsel or not, it is a reasonable inference to be drawn from the questions, and we do not think defendant has any just ground for complaint Nor do we think these exceptions can be sustained upon the ground of error in law, as, in our opinion, there was evidence in the case involving murder, manslaughter, and excusable homicide. It was admitted that the defendant killed the deceased, David Butler, with a pistol. This threw the burden on the defendant. The state then offered two witnesses, whose testimony tended to show previous threats and express malice on the part of defendant; and, while these were denied by defendant, he offered evidence tending to show that, after the alleged threats (which the state insisted showed express malice), the deceased and the prisoner had talked the matter of John Horn over; that prisoner had assured the deceased that he had nothing to do with that trouble, telling the deceased that they had always been friends, and that he did not want any trouble with the deceased. And the court, in the case on appeal, states that "no one testified that Henry Horn was not friendly with Butler on the day that Butler was killed, or that Henry Horn had ever done or said anything to show that he was unfriendly with Butler, except as it may appear as herein recited"; evidently referring to the testimony of Campbell and Gaddy. And defendant insisted that if it should be found by the jury that defendant had made the alleged threats, it also appeared that he (defendant) had become reconciled and was friendly with the deceased on the day of the homicide,...