State v. Johnson

• Decision Date: 31 December 1840
• Court: North Carolina Supreme Court
• Parties: STATE v. MADISON JOHNSON.

1 Ired. 354

23 N.C. 354

35 Am.Dec. 742

STATE

v.MADISON JOHNSON.

Supreme Court of North Carolina.

December Term, 1840.

When a deliberate purpose to kill or to do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown uot of the case, and goes for nothing, unless it can be shewn that this purpose was abandoned before the act was done.

There is no such thing in law as a killing with malice, and also upon the furor brevis of passion; and provocation furnishes no extenuation, unless it produces passion. Malice excludes passion. Passion presupposes the absence of malice. In law they cannot co-exist.

When the existence of deliberate malice in the slayer is once ascertained, its continuance, down to the perpetration of the meditated act, must be presumed, until there is evidence to repel it. There must be some evidence to shew that the wicked purpose had been abandoned.

This was an indictment against the prisoner for the murder of Henry Beasley. The prisoner having pleaded not guilty, the issue was tried at the Fall Term, 1840, of Wake Superior Court of Law, before his honor Judge HALL, when the jury found the prisoner guilty of the felony and murder in manner and form as charged in the bill of indictment. A motion for a new trial was made by the prisoner's counsel, on the ground that the jury were misdirected by the court. This motion having been overruled, and judgment of death having been pronounced by the court, the prisoner appealed to the Supreme Court.

The following is the case submitted to this court:

On the trial of the issue, one Ragan, a witness for the prosecution, deposed, that one night in November, 1839, he was at a shop in Raleigh kept by himself and one Aaron Johnson, the father of the prisoner. The prisoner, the deceased, one O'Brien and the witness were there. A quarrel arose between O'Brien and the prisoner, who struck O'Brien two blows. They were separated and the prisoner went out. When witness went to close the door, the prisoner came to the door. Beasley (the deceased) asked the prisoner what was the use of having such a fuss. Prisoner asked him if he took it up. He said he did not. Prisoner said he was not afraid of him, to which deceased replied by affirming that he was not afraid of prisoner. And thereupon prisoner immediately raised his arm, and a pistol fired. Prisoner immediately went away; the deceased also went out, exclaiming “I am a dead man.”

The death of the deceased from a wound then inflicted by the discharge of the prisoner's pistol was fully proved, and was admitted.

The prisoner examined one Pollard, who deposed that, on the night mentioned by Ragan, he went to the shop to buy some fish. The deceased, who was acting as an assistant or clerk in the shop, went with the witness into a back room of the shop to get the fish. When witness came in O'Brien and prisoner were quarrelling, and when witness and the deceased returned into the shop from the back room, they were still quarrelling; when the deceased told prisoner to behave himself. Prisoner asked the deceased if he took it up. Deceased said he did, and a smart quarrel ensued between them. After some time, prisoner said he would go to bed. Deceased said he should not. Prisoner said it was hard if he could not go to bed in his father's house, and took a candle and went into the back room, and was in the act of ascending the stairs, which led to a bed room above, when the deceased went up to prisoner, seized him by the collar, pulled him through the back room and shop to the front door, and pushed him out, kicking him at the same time. As this was done, witness (desirous of getting away from the fuss) got out of the shop and hastened away, and soon after heard the report of a pistol.

Several witnesses deposed that, within a few minutes after the pistol was fired, they heard the prisoner say that he had shot the deceased, that if it was to do again he would do the same thing, and if any person touched him he would shoot him likewise; and he hoped the deceased would die and go to hell.

Polly Mangum, examined for the State, deposed that, on the same day, the prisoner was at her house at dinner; said he had bought powder and shot, and intended to kill a man that night before the bell rung, and at the same time shewed a pistol. She said to him “Madison, why are you going to do so?” he replied “aunt Polly is it not a shame that I should have to work all day in the hot sun?” She then asked him whom he intended to kill; to which he replied “I name no names and value no law.” At the time of this conversation, the prisoner had been drinking but was in his senses.

This was all the material evidence, except to support and oppose the credit of the witnesses, Ragan and Pollard.

The Attorney General admited that if the testimony of Pollard was true, the prisoner was guilty of but manslaughter, but he insisted that Pollard ought to be discredited, and Ragan should be believed, and that upon his evidence the prisoner was guilty of murder.

The prisoner's counsel commenced his address to the jury, by admitting that, if Ragan's evidence was true, the prisoner was guilty of murder; and stated to the jury that the whole case therefore depended on the question, whether Ragan or Pollard should be credited, as upon the case as stated by the latter, it was but manslaughter. The presiding Judge here interrupted the counsel, and said he should instruct the jury, if they were satisfied that the prisoner had previous malice against the deceased, and went to the shop on the evening of the homicide, with an intent to provoke a quarrel and revenge himself, he was guilty of murder, although Pollard's statement should be true.

The prisoner's counsel insisted that, in order to make this ease one of murder, supposing Pollard's statement to be true, it must appear that the prisoner sought the provocation he received, or that he did not act under its influence; that his being at enmity with the deceased did not make it necessary that he should take more from him than from a stranger or a friend; that the provocation proved by Pollard would reduce the crime to manslaughter, if committed on a friend or stranger, and would have the like effect, when the person killed was an enemy, if he acted under the provocation; that, if the prisoner went to the shop to bring on a quarrel as a pretence for killing, still he would not be guilty of murder, if he did not bring on the quarrel, but acted in truth upon the provocation then received, and would not so have acted but from the provocation. And the prisoner's counsel further insisted that the provocation proved by Pollard was a sufficient and adequate motive for the prisoner's conduct, to which it was to be referred, unless by some proper evidence it was shewn that he did not act from that motive, but from something deemed malice, or proof of malice. And the counsel contended that, in this case, there was no evidence, proper to be left to the jury, that the deceased was the object of the prisoner's threat, supposing Pollard's statement true, nor that he had malice or ill will against him, nor that he sought or brought on the quarrel, nor that he acted but from the provocation proved by Pollard.

The Judge, in leaving the case to the jury, after directing them that on Ragan's evidence, the prisoner would be guilty of murder, and that the provocation stated by Pollard was sufficient in law to reduce the killing to manslaughter, instructed them nevertheless, that, although they should believe Pollard's evidence to be true, yet if, connecting the testimony of Polly Mangum with the other evidence in the cause, they could collect the fact that the deceased was the object of the threat deposed to by her, and that the prisoner went to the shop with the intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, then the killing was murder, notwithstanding the facts proved by Pollard.

Attorney General for the State .

Badger for the prisoner .

The opinion of the majority of the court was delivered by

GASTON, Judge.

After an anxious consideration of this case, the court is unable to find any grounds, on which to pronounce the judgment, rendered against the prisoner, crroneous.

The only error alleged is, because of misdirection of the presiding Judge in his instructions to the jury. It has not been questioned, nor can it be questioned, but that it is the duty of a judge, who presides at the trial of a cause, whether civil or criminal, to correct every misrepresentation of law made to the jury, although admitted to be law by the parties or their counsel. He does not preside merely as a moderator, to enforce order and decorum in a discussion addressed to a body, with whose deliberations he has no concern, and over whose judgment he is to exercise no influence; but he is an integral part of that mixed tribunal, which is to pass upon the issue, and, while he is forbidden to give to the jury “an opinion whether any fact is sufficiently proven,” he is bound to declare and expound to them the law arising upon those facts. Rev. Stat. c. 31, s. 136.

It is the duty of the Judge, who presides at the trial of any cause, whether civil or criminal, to correct any misrepresentation of law made to the jury, although admitted to be law by the parties or their counsel.

The alleged error is supposed to be, partly in the instructions actually given, and partly in declining to adopt, as a modification of those instructions, certain positions, for which the prisoner's counsel contended on the trial.

The instruction given, to which objection has been taken, is that part of his Honor's charge, wherein, after stating that the provocation, testified to by Pollard, was sufficient in law to reduce the killing to manslaughter, he added, “that, nevertheless, if, connecting the testimony of Polly...