State v. Johnson

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN, J.
• Citation: State v. Johnson, 176 N.C. 722, 97 S. E. 14 (N.C. 1918)
• Decision Date: 23 October 1918
• Docket Number: 273.
• Parties: STATE v. JOHNSON.

97 S.E. 14

176 N.C. 722

STATE v. JOHNSON.

No. 273.

Supreme Court of North Carolina

October 23, 1918

Appeal from Superior Court, Cumberland County; Devin, Judge.

Charles Johnson was convicted of murder in the second degree, and he appeals. No error.

In prosecution for murder in second degree, evidence of threats against deceased, made by defendant at various dates continuously and in progression from two years up to six months before killing, were admissible.

Sinclair & Dye and Rose & Rose, all of Fayetteville, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

BROWN J.

It appears in evidence that defendant, with his wife and little son, drove out to a tract of land belonging to him to gather wood and straw. In the wagon he carried an unloaded shotgun. Defendant met his brother, who had an ax in his hands apparently drawn on defendant, who went to his wagon and took out the shotgun. There was an altercation, in which defendant struck the deceased, John Henry Johnson, on the head with the gun barrel, from which blow he died shortly after.

1. The motion of defendant to direct a verdict for defendant was properly overruled. The defendant admitted that he had an altercation with deceased, in which he hit deceased in the head with the barrel of a double-barreled shotgun (unquestionably a deadly weapon, even when used in that manner), and killed him. It is true there is much evidence upon part of defendant that deceased was attacking him with a drawn ax, and that he struck in self-defense; but it is well settled in this state that, when the killing with a deadly weapon is proven or admitted, the burden of proof shifts to the defendant, and he must justify the homicide by satisfying the jury as to any matters of mitigation or excuse. If he fails to so satisfy the jury, they should convict him of murder in the second degree, as the law implies malice from the use of the deadly weapon. State v. Brittain, 89 N.C. 481; State v. Davis, 175 N.C. 728, 95 S.E. 48. Applying this established rule, the court could not direct a verdict for defendant, as he was tried only for murder in the second degree, and not for the capital felony. The misfortune of defendant is that the jury seems not to have credited his version of the affair.

The remaining assignments of error are directed to matters of evidence.

2. The declarations of defendant while under arrest were properly admitted. There is nothing in the record indicating that the declarations admitted were induced by threats, or any kind of compulsion or inducement. They appear to have been entirely voluntary upon part of defendant. The fact that he was in custody of an officer does not alone render them incompetent. State v. Bowden, 175 N.C. 794, 95 S.E. 145.

3. The defendant objected to evidence of threats against deceased made by defendant at various dates, varying from 6 months to 2 years before the killing. We might hesitate to admit evidence of threats to kill the deceased, made 2 years before the homicide, if they stood alone, without evidence of intermediate and recurring threats, although threats made 12...