State v. Jtmmerson

• Decision Date: 14 April 1896
• Citation: 118 N.C. 1173,24 S.E. 494
• Parties: STATE. v. JTMMERSON.
• Court: North Carolina Supreme Court

24 S.E. 494

118 N.C. 1173

STATE.

v.JTMMERSON.

Supreme Court of North Carolina.

April 14, 1896.

Homicide—Malice—Murder—Accessory—Death in Pursuit op Unlawful Object — Instructions— New Trial —Newly-Discovered Evidence—Discretion.

1. From a killing with a deadly weapon malice is presumed, and defendant must prove the circumstances relied upon to rebut the presumption.

2. Where defendants were in joint pursuit of an unlawful object, viz. to annoy deceased, by taking from him his hat, threatening to kick him, etc., and one, in pursuance of that common object, strikes the deceased with a rock, causing his death, both are guilty of murder in the second degree, though the other had no intention of inflicting upon deceased any bodily injury the commission of which might result in death.

3. The use of the words "to devil, " without explanation, in an instruction that defendant, though he was present at the time the fatal blow was struck by his co-defendant was not guilty unless there was a common purpose between them "to devil" deceased, is not ground for reversal, where, in a preceding instruction, such words were explained to mean to annoy deceased by taking from him his hat, threatening to kick him, etc.

4. Refusal of a new trial for newly-discovered evidence is discretionary with the trial court.

5. Refusal to permit defendant to submit newly-discovered evidence to the jury before verdict is discretionary with the trial court.

6. That the transcript does not show the names of the grand jurors by whom the indictment was found is not ground for reversal.

Appeal from superior court, McDowell county; Bryan, Judge.

James Jimmerson was convicted of murder, and appeals. Affirmed.

J. B. Batchelor, for appellant.

The Attorney General, for the State.

MONTGOMERY, J. The defendants, James Jimmerson and A. L. Finley, were indicted and tried jointly for the murder of L. H. McNish. The case, on appeal on the part of Jimmerson, was agreed upon and signed by the solicitor of the district and the counsel of the defendant. It contained the statement that the deceased was a "tramp." The testimony showed that he was a brave, kind-hearted, and jovial Irishman. In the darkness of night, in a strange place, without an acquaintance, he was wounded unto death by the defendants, without the least provocation or excuse, in or near a vacant lot about the courthouse, in Marion. The morning after he was wounded, he was carried to the examination before the justice of the peace, and, upon seeing the defendants, said: "Oh, boys! Ain't you sorry? But I'll forgive you." He deserved a better fate.

There was strong evidence going to show a combination and conspiracy between the defendants to commit an unlawful act, and, in the course of it, the deceased received a wound inflicted by one or the other of the defendants, both being present, from which he died. The testimony tended to show an agreement between the defendants to engage in the pursuit of an unlawful object, —to worry and annoy and to assault the deceased, by taking his cap from him, by chasing him about the streets, by throwing missiles at him (like bottles), by cursing him, and in various other ways annoying him. There was not a scintilla of proof offered with the view to reduce the crime charged in the indictment (murder) to manslaughter. It the killing with a deadly weapon is proved or admitted, nothing else appearing, malice is presumed; and the defendant must show and prove to the satisfaction of the jury all matters and circumstances which he relies upon for excuse or mitigation to rebut the presumption of malice. His honor instructed the jury to...