State v. Houston
| Decision Date | 03 May 1911 |
| Citation | 71 S.E. 65,155 N.C. 432 |
| Parties | STATE v. HOUSTON et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Long, Judge.
Charlie Houston and others were convicted of manslaughter, and they appeal. No error.
Where on the evidence self-defense was not in the case, a charge thereon was in defendant's favor and he could not complain of it.
Stewart & McRae and F. M. Redd, for appellants.
T. W Bickett, Atty. Gen., and Geo. L. Jones, Asst. Atty. Gen., for the State.
The defendants Houston, Byers, and Boyd were convicted of manslaughter. In this court they entered a demurrer to the evidence. It is settled by uniform decisions that an exception that the evidence is not sufficient to be submitted to the jury is waived if not taken before verdict. State v. Hart, 116 N.C. 976, 20 S.E. 1014; State v Kiger, 115 N.C. 746, 20 S.E. 456; State v Varner, 115 N.C. 744, 20 S.E. 518; State v Braddy, 104 N.C. 737, 10 S.E. 261; State v. Harris, 120 N.C. 577. 26 S.E. 774, and cases there cited; State v. Wilson, 121 N.C. 650, 28 S.E. 416; State v. Huggins, 126 N.C. 1055, 35 S.E. 606; State v. Williams, 129 N.C. 582, 40 S.E. 84, and numerous cases cited; Clark's Code (3d Ed.) p. 773. The reason is that the object of the law is to try cases on their merits, and, if there is reasonable ground for such motion, it should be made before the case is submitted to the jury in order that the court, if it sees fit, may in its discretion permit the opposite party to introduce further testimony.
Still less can any exception be taken in this court which was not assigned in the lower court with opportunity to the judge to rule upon it, save only: (1) Want of jurisdiction in the court that tried the cause. (2) That the complaint or indictment does not state a cause of action. McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513; Taylor v. Plummer, 105 N.C. 56, 11 S.E. 266; State v. Craige, 89 N.C. 475, 45 Am. Rep. 698; State v. Hardee, 83 N.C. 619, and numerous other cases cited; Clark's Code (3d Ed.) p. 777.
However, it has been held that, if in this court the Attorney General thinks that the interests of justice require that the demurrer be entered, we will permit it (State v. Wilcox, 118 N.C. 1131, 23 S.E. 928), as we would doubtless do in a civil case if the opposite party should waive the objection. But certainly such practice is not to be commended or encouraged. If there is not sufficient evidence to go to the jury, or other ground of exception, the point should be called to the attention of the judge on the trial below and in apt time, that he may have opportunity to correct the error, if any.
Taking the exception as duly entered, it cannot be sustained. There was evidence that the deceased was killed at a fish fry; that there was drinking and gambling going on and a big crowd present; that a fuss arose because the brother of deceased had stepped on the toes of the prisoner Houston. He apologized to Houston, but was told by his brother to apologize again, and, upon approaching Houston apparently for that purpose, the latter suddenly drew his pistol and fired. The witness added that: Another witness testified, "The pistols fired like a cane brake set afire." There was a good deal of other evidence, and there was some conflict in the evidence. But the testimony that Houston fired, and that the other two prisoners "joined in," and that "there were 15-20 shots fired," of itself is sufficient to show that there was evidence proper to go to the jury.
There were 17 exceptions taken on the trial and also assigned as errors on appeal; but in the brief of the prisoners there are only four set out, to wit, exceptions 1, 2, 11, and 17. "Exceptions in the record not set out in appellant's brief will be taken as abandoned by him." Rule 34 of this court (140 N.C. 666, 66 S.E. ix).
The first and second exceptions are that the judge charged the jury as to the principles of law applicable to self-defense. The prisoners contend...
To continue reading
Request your trial
-
Riley v. Stone
...of such latter exception on appeal to the Supreme Court." It was held that this statute did not apply to criminal cases ( State v. Houston, 155 N.C. 432, 71 S.E. 65), as which the former procedure still obtained. Thereupon the Legislature enacted chapter 73, Laws 1913, extending the statute......