State v. Johnson

• Decision Date: 31 December 1855
• Citation: 48 N.C. 266,3 Jones 266
• Court: North Carolina Supreme Court
• Parties: STATE v. PETER JOHNSON.

3 Jones (NC) 266

48 N.C. 266

STATE

v.PETER JOHNSON.

Supreme Court of North Carolina.

December Term, 1855.

In a trial for murder, where the homicide is clearly established or admitted, it is not error for the Court to refuse to instruct the jury that they must be satisfied by the State, beyond a reasonable doubt, that the offense is murder and not manslaughter; for the killing being established against the prisoner, every matter of excuse, mitigation, or justification, must be shown by him.

In a case where it is proper to instruct the jury, that they must be satisfied, beyond a reasonable doubt, of the prisoner's guilt, it is not error for the Court to omit such instruction, if, in the argument, the rule has been properly laid down by the defendant's counsel, and admitted by the counsel for the prosecution.

Where a homicide was established by proof, and was admitted on the trial, the facts that the parties had been friendly a short time before, and that a lumbering, as of chairs, was heard about the time the blow was given, accompanied with the expression, “O Lordy” by the deceased, and replied to by the prisoner, “if you don't shut your mouth, I will kill you,” (the prisoner immediately afterwards, and always up to the trial, denying that he did the act,) were Held (Pearson, J., dissentiente,) not to be any evidence to mitigate from murder to manslaughter.

THIS was an INDICTMENT for the MURDER of one Dimond, tried before his Honor, Judge CALDWELL, at the last Term of Guilford Superior Court, to which it had been removed from the county of Rockingham.

Dr. McCain swore that he examined the wounds of the deceased on Tuesday. His skull was broken behind--shattered for some inches, by a blow that must have produced instant death. There were some small contusions on the face which had the appearance, from the crisped flesh, of having been done by a hot instrument. The wound on the back-part of the head seemed to have been made by a heavy, blunt instrument. The homicide occurred on the 25th of December, 1853.

Dr. Scales swore about the same.

Jesse F. Slade swore, that he was sent for to prisoner's house on Monday 26th of December, 1853; that he found the deceased on the floor, with the prisoner's coat under his head. He examined the back of the head, and found the skull greatly shattered, the skin on the face apparently burnt, and the hair singed. The prisoner's account was, that the deceased had got up and gone out of the house, and directly came back and said that somebody had killed him; that he caught prisoner in his arms and instantly died, adding, “and here he is as dead as hell.” The prisoner also said, that if he had killed him, he would have taken him off and covered him up in the leaves where the hogs could have eaten him up. The prisoner was under the influence of spirits, but not drunk. The witness examined, both in doors and out, for blood and marks of violence, but found none. The only blood seen, was where the deceased was lying on the floor. He found a heavy iron shovel in the house, and, in the opinion of the witness, the edge corresponded with the wound on the deceased. The prisoner, when charged with the killing, denied it, and bristled up for a fight.

David Wilson swore that he went to the prisoner's house on Sunday 25th December, 1853, about 12 o'clock; that no one was there but the prisoner; that the prisoner was drinking some; that after a time the deceased came, as he said, to buy some corn; that the deceased and the prisoner drank, and continued to drink until the former got very drunk, and lay down on the floor; that the prisoner was not drunk, but was perfectly rational. He stated that, late in the evening, Joseph Allen came, who staid some minutes, and left. The witness also left, some minutes thereafter. Before leaving, at the suggestion of Allen, the prisoner and witness put the deceased in bed. The witness said he left no one there but prisoner and deceased. He went to Mrs. Smithy's, about three hundred yard's from the prisoner's house. About one hour in the night he heard a noise at the prisoner's, and heard the deceased saying “O Lordy!” and the prisoner saying, “God damn you, if you don't shut your mouth I will kill you.” The noise then ceased, and in a few minutes he heard prisoner calling to the witness to come there. The witness said he went, and found the prisoner with his sleeves rolled up, and coat off, and the shovel in his hands.

Prisoner said to him, “Here is Dimond dead as hell and I have killed him.” Witness went out and brought in some wood, when the prisoner struck at him, and said he thought it was a dog. He gave the wood to prisoner, and while he was putting it on, witness felt the pulse of the deceased. He also raised the head and saw a stream of blood on the floor, as long as his arm. There was nothing under the head of the deceased. Witness said he was frightened, and left the house suddenly. No one was there but the prisoner and the deceased. The prisoner was then under the influence of spirits, but was rational. Next morning, in company with others, witness went to the prisoner's house, and found him still under the influence of spirits; heard the prisoner say, “there was his good coat under his head, and he would not give it for the damned man.”

Joseph Allen swore that he was at the prisoner's house on Sunday evening; found David Wilson, the prisoner, and the deceased there; the latter was drunk on the floor, and the prisoner drinking, but not drunk; witness told them to take the deceased up and put him to bed, which they did; he did not recollect who did it. He staid but a short time there, and left about three-fourths of an hour by sun. Witness was sent for next morning, and went to the prisoner's house. Prisoner said to him, “Here is Dimond dead as hell, but I did not kill him.” Witness asked him who did, to which he replied, “he killed his own self.” He, prisoner, said to the witness, that the deceased went out of the house, was gone a short time, and returned crawling; that he caught him (prisoner) by the arms and said somebody had killed him, and fell instantly dead. Prisoner further said, that he “wished Dimond had broke his damned body before coming there.” Prisoner was under the influence of spirits, but was rational. Prisoner further said that “he had sat up with the deceased until the candle went out, when he went to bed; and that if his friends did not come and take him away he would throw him to the hogs;” that “there was his best coat under his head which he would not give for Dimond.” Witness further stated, that the coat which the prisoner was wearing on Sunday was under the head of the deceased, who then had on another coat. He then looked for blood but found none, except where the deceased was lying, which had run some six inches. He saw the shovel which was large and heavy. He examined the wound, and found the face as if it had been struck with a hot instrument. The back of the skull was broken, and witness believed it had been done with the shovel. He found a horse of the prisoner hitched near the house, some six yards off, which horse was a very vicious one. Witness had never seen the prisoner and deceased together before, and did not know that they were acquainted. The character of the prisoner, when sober, was peaceable; but when drunk he was a violent and outrageous man, and would as soon strike a friend as a foe; there was no doing any thing with him; he seemed frantic; but never had seen him when he did not know right from wrong.

Mrs. Smithy swore that she lived some 200 yards from the prisoner; that on the evening of the homicide, about an hour after dark, she was sick in bed in a back room; that she heard a “lumbering” up at the prisoner's house; she did not know what it was, but heard the prisoner once saying, “if you don't shut your mouth I will kill you;” the noise ceased after a little, and in a few minutes she heard the prisoner calling David Wilson to come there, who went and returned in a few minutes. She also stated she saw the prisoner on Sunday morning and he was drinking. She said the “lumbering was something like chairs.”

Joseph Smithy swore that he was at Mrs. Smithy's on the evening of the homicide; that about an hour in the night he heard a voice up at the prisoner's house, and then the voice of the deceased saying “O Lordy!” He also heard the voice of the prisoner saying “if you don't shut your mouth I will kill you.” The voice ceased, and the prisoner then called David Wilson to come there. He thought Mrs. Smithy's was a quarter of a mile from the prisoner's house.

Edward R. Windsor testified that he was at the prisoner's house next morning after the homicide; heard the prisoner say “I wish I had broke your damned body instead of your head,” or “I wish your damned body had been broke instead of your head, before you came here;” he did not remember which. Prisoner said “as deceased started out of the house he fell, and then fell against the house two or three times, then came in and said somebody had struck him, seized the prisoner and said he was a dead man; and that if his friends did not take him away he would throw him to the damned hogs; he would not give his coat for the damned man.”

Zachariah Groom swore that he heard prisoner say on the morning after the homicide, “I wish I had broke his damned body instead of his head;” that he first said “he wished whoever had killed him had broke his damned body instead of his head.”

It further appeared that the prisoner continued drinking on Monday, and became more and more intoxicated during the day.

Upon this evidence, the counsel for the prisoner moved the Court to charge the jury, that if the prisoner were under the influence of spirits, so as to have been frantic at the time of the homicide, the jury ought to acquit. The Court declined so to charge, and told the jury that his drunkenness would not excuse; that if he knew right from wrong, he...