State v. Jordan

• Decision Date: 01 November 1939
• Docket Number: 364.
• Citation: 5 S.E.2d 156,216 N.C. 356
• Parties: STATE v. JORDAN.
• Court: North Carolina Supreme Court

5 S.E.2d 156

216 N.C. 356

STATE v. JORDAN.

No. 364.

Supreme Court of North Carolina

November 1, 1939

Criminal prosecution tried upon indictment charging the defendant with the murder of one Dave Fowler.

Verdict Guilty of manslaughter.

Judgment Imprisonment in the State's Prison for a term of three years.

The defendant appeals, assigning errors.

J V. Wilson and Moser & Miller, all of Asheboro, and C. T Kennedy, of Thomasville, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Attys. Gen. for the State.

SEAWELL Justice.

Many exceptions appear in the record which offer no serious challenge to the correctness of the trial. We have not thought it necessary to discuss them in this opinion. Meriting more detailed consideration are three aspects of the trial involving exceptions on which the defense more strongly relies:

1. There was evidence on the part of the State tending to show that the defendant shot the deceased through the abdomen, without justifiable cause, and rebuttal evidence on the part of defendant tending to show that the shooting was upon defendant's own premises and in his necessary self defense, under a reasonable apprehension of death of great bodily harm.

Among the exceptions to the instructions relating to the right of self defense, we find the following: "Under the evidence in this case the Court charges you that the defendant was on his own premises; that Dave Fowler, the deceased, also was on the premises of the defendant; that the defendant had the legal right to require Dave Fowler to leave his premises and to use such force as was reasonably necessary to compel him to leave, and that, if Dave Fowler, the deceased, made an assault upon the defendant upon his own premises, the defendant would be under no duty to retreat to avoid a combat, but was legally entitled to stand his ground." Exception to this is upon the ground that it did not contain the further instruction that under such circumstances the person assailed would have the right to kill his adversary without retreating.

Where the subject of complaint is the omission, within the immediate focus of the objection, of something deemed essential, we are mindful of the fact that all the law cannot be crowded into a single sentence without danger to that vehicle of thought, and, so, we look further into the caravan for the missing item. In other words, on a test of its adequacy the charge must be taken as a whole, contextually. Collins v. Virginia Power & Electric Co., 204 N.C. 320, 168 S.E. 500; In re Will of Brown, 203 N.C. 347, 166 S.E. 72; Marriner v. Mizzelle, 207 N.C. 34, 175 S.E. 711; Beal v. Carolina Coal Co., 186 N.C. 754, 120 S.E. 333. In this instance we find no trouble with the charge after the exceptive brackets have been removed.

In the paragraph immediately preceding, we find: "A person has a legal right to use any means at his command when acting in self defense. He may injure, even kill, a person who wrongfully assaults him whenever it is necessary for him to do so in order to defend and protect himself from death or great bodily harm. He may also do so when it is not actually necessary if he believes it to be necessary and has reasonable grounds for that belief".

The right to kill an assailant, in apparently necessary self-defense, under a reasonable apprehension of death or great bodily harm, is not peculiar to the circumstance that the person so situated happens to be upon his own premises and, therefore, need not retreat, nor is it peculiar to the situation where one is suddenly subjected to a felonious assault, which gives him no opportunity of retreat, and is sufficiently stated in the formula generally covering the right of self defense, as contained in the charge considered as a whole.

Since there was no dispute about the fact that the defendant was at the time of the alleged assault and the killing upon his own premises, and under that score got the benefit of the charge that he need not retreat under any kind of an assault, it would seem to be supererogation to add to it that he would have the same right under a sudden felonious assault.

We have examined the other exceptive assignments of error pertaining to the subject of self defense in connection with the whole evidence and find no error upon this phase of the case.

2. Defendant's counsel objected on the trial to the introduction of the statements made by Dave Fowler, after receiving the fatal wound, as dying declarations. The objection is based upon the alleged insufficiency of the evidence to show that at the time the declaration was made the deceased was under sufficient apprehension of death.

The evidence pertinent to this injury is substantially as follows:

J. B. Coltrane testified for the State:

"I am a police officer in the City of High Point. This service station and dance hall is around eight or nine miles from High Point. On the night of the 19th of September I saw the deceased, Dave Fowler, at the Guilford General Hospital, High Point. That was at eleven o'clock. He was on the operating table. Mr. Lee and Dr. Slate, Dr. Stanton and two or three nurses were present with me. When we answered the call by the time we got to the hospital they had already strapped Dave down to his knees. His shirt was pulled up here and there was a wound approximately two inches to the left of his navel and maybe a quarter of an inch below. It was a bullet wound. I didn't see any other wound on him at that time. He was conscious then. I had known the deceased a couple of years. At this time, while the deceased was on the operating table, I heard Dr. Slate make a statement in the presence and hearing and to Dave Fowler. Dr. Slate is a practitioner of medicine.

"I asked Dr. Slate if the deceased was conscious at the time and if we might say something to him, and he said he was conscious. He said he wouldn't give ten cents for his life. He said he didn't think he would recover under any circumstances; and then he reached over and laid his hand on his, the deceased's abdomen, and said, 'Dave, you are in a bad way, go ahead and tell these officers anything that you want to; if you want to make a statement to them go ahead and make a statement.'

"When the doctor made that statement to him in our presence he said that he would make a statement; that he didn't have any prejudice against anyone. He said that Paul Jordan shot him and he shot him in his service station; that he was fixing to leave, was coming out the door, coming through the door, and Paul came around the counter and fired, just fired pointblank at him and hit him. Said that is all there was to it. Said he didn't know any reason in the world why he should have shot him.

"There were two doctors in the room when I went to the hospital. Dr. Slate was standing right by the table and Dr. Stanton was preparing himself for the operation. There were two or three nurses there, and the other officer."

D. S. Lee testified for the State:

"I am an officer at High Point. I was present on the night at the hospital with Mr. Coltrane. I was in the operating room at the time the deceased was there. Dr. Slate and Dr. Stanton and two or three nurses were going in and out. The deceased, Dave Fowler, was alive at that time. He was conscious.

"Dr. Slate was standing by the operating table and he laid his hand over on Dave and said, 'Dave, if you want to make any statement to these officers, go ahead and make it; I wouldn't give ten cents for your life.'

"He said he and Mr. Loman, Mr. Simpson, Pauline Pierce and Jewel Phillips were down at the station and they had started to leave and he had started out the door when Mr. Jordan fired pointblank at him and hit him in the stomach.

"I went to the hospital at 11 p. m. We went out to investigate the case. We had been called there by the doctor. Dr. Slate and Dr. Stanton and two or three nurses were there."

Dr. T. M. Stanton testified for the State:

"I am a practitioner of medicine.

"I am now connected with the Guilford General Hospital and was on the 19th of September, last year. This hospital is in High Point. I saw the body of Dave Fowler in the hospital on the 19th of September. It must have been between 10 and 11 o'clock. I examined the deceased. I found that Dave Fowler had a bullet wound on the left front of his abdomen about half way between his hip bone and his ribs. After I opened him up to find out the extent of the injury, it damaged four or five feet of the small intestines. I treated him. He remained in the hospital for several days. He died there. His death was caused as a result of this bullet tearing his bowels and he developed peritonitis. Dr. Slate was there with me on the night the deceased, Dave Fowler, was on the operating table. At that time he was in right much shock.

"I told him that he was severely wounded and in all probability wouldn't get well, and if he had any statement to make I advised him to make it.

"He said he was standing in the door of Mr. Jordan's filling station fixing to leave and Mr. Jordan shot him.

"That was the night of the injury, and he lived several days after that. He got along very well for several days, about three days, and knew about everything that was going on, then he died."

The reasons usually advanced in support of the universal practice of admitting dying declarations in evidence on homicide trials is part of the conventional learning of the profession. We do not care to make an unnecessary display of erudition. On that subject a collection of authorities may be found in State v. Stewart, 210 N.C. 362, 186 S.E. 488, and to these we refer. A study of these authorities convinces us that the public policy that has been strong enough to strike down the...