State v. Kennedy

• Decision Date: 28 April 1915
• Docket Number: 393.
• Citation: 85 S.E. 42,169 N.C. 326
• Parties: STATE v. KENNEDY.
• Court: North Carolina Supreme Court

85 S.E. 42

169 N.C. 326

STATE v. KENNEDY.

No. 393.

Supreme Court of North Carolina

April 28, 1915

Appeal from Superior Court, Stanly County; Lane, Judge.

Walter J. Kennedy was convicted of manslaughter, and he appeals. Affirmed.

In prosecution for murder, instruction as to the weight to be given a dying declaration held proper.

It was proved that on March 7, 1914, about 5 p. m., at Oakboro in said county, Johnnie Morton was shot and mortally wounded by Walter Kennedy and died of the wound about four days thereafter.

There was evidence on the part of the state tending to show:

That Kennedy and one Pointer, a lightning rod agent, were driving by the store of deceased where the latter and Wm. Osborne and several others then were, and received the impression that some one in the store cursed Pointer, referring to him as a "damned old lightning rod agent." That the buggy was stopped and Pointer, going in the store, inquired who cursed him repeating the charge. Some one said, "No such talk was in here;" and Kennedy replied, "You can't bluff me; some of you said it;" and the two walked out Kennedy going into a barber shop near by. That, shortly thereafter, Columbus Morton, who had been in the barber shop went into his brother's store and told him he could go and be shaved, as the brother could mind the store for him and Johnnie walked into the barber shop, and, as he was about to take his seat in one of the chairs, Johnnie said, "Kennedy, there was a mistake about that cursing;" and Osborne said, "Yes, Walter, there was a misunderstanding;" when Kennedy said, "You can't scare me," or "bluff me," and slapped Morton in the face, and Morton put his hand on Kennedy's shoulder and said, "Why, Walter, what do you mean?" and Kennedy shot him in the body under the arm, inflicting the wound of which he died.

Connor Smith and Finley Hinson, eyewitnesses of all or a part of the occurrence, and the dying declaration of the deceased were in substantial accord as to this version, and the account received confirmation from the declaration of Kennedy, telling how the bullet entered and ranged. The course of the ball also was in support of the position of the state that the pistol was fired and the wound inflicted while the parties were in an upright position.

One of the state's witnesses testified that Kennedy had his pistol out when he first slapped the deceased in the face, and it was argued by the state that the bruises found on the knees of Kennedy, after the killing, were caused in the struggle which occurred when the father and brother of the defendant took the weapon away from him.

The evidence of the defendant tended to show:

That, after the talk at the store, defendant went into the barber shop to get a shave, and, while he waited for the water to heat, Osborne came in and said, "Kennedy, I don't like to be accused of a thing I'm clear of;" and Walter said, "Mr. Osborne, I haven't accused you of anything you didn't do," etc.; and he said, "You accused me of cursing Pointer, and I didn't do it;" and Walter said, "I don't say you are the man," etc. Osborne replied, "I'm not the man; I never fought any, but I'm not like the man who can't." Then Johnnie came in and said, " 'Walter Kennedy, you are trying to run my business;' and I replied, 'I am not, and I don't want to run any such business as you run, and you can't run mine.' And when I said that he struck me, right up here on the head (witness indicates on head). I kinder dodged down, and he knocked me back against the partition right at the back of the stove. That partition is between where we were and the little back room, and there are some curtains hung up there. He knocked me against that partition, and then his brother, Lum Morton, come in. He is the one that was on the stand here yesterday. And Lum Morton said: 'Damn him, let me get hold of him, and I'll fix him;' and he caught me in the collar and jerked me to my knees; both of them beating me in the back of the head and shoulders, he striking my right shoulder. And I said, 'Boys, get off of me,' three or four times, and I said, 'If you don't, I'll shoot you off,' and they wouldn't do it, so I drew my gun and fired. They bruised my shoulder and back of my neck; my head was sore, and my knees were scarred up and skinned. I hurt my knees on the floor. I would rear up and try to get up with them, and they would press me back to the floor, and that is how my knees got bruised. My clothes were cut, on the left side. I asked them three or four times to get off. Lum Morton caught hold of me in the collar. It tore my collar loose in the hole. My clothes are there in that suit case. Both of my coats were cut. My coat and overcoat, too. My collar was torn, and my coat and overcoat were cut. It cut through the overcoat. I did not see the knife. I felt it when he cut my coat. I felt my coat pulling from me, and kinder zip zip; sorter that way. (Collar, cravat and overcoat were exhibited in court, and witness showed the torn and cut places on same.) I shot John Morton to save my own life. I thought they were going to kill me. They would not get off of me. When the gun fired they left me. They run out when the pistol fired, and my brother was the first man that came to me, and he said, 'Don't shoot any more.' His name is Vander. He took my gun, and said, 'Don't shoot any more;' and I said, 'Here, take my gun, and keep them off of me.' I told him that, and handed him my gun, and I walked out of the door. John Morton run out. I never did see him, but where they say he fell a good many were rushing up around there."

The testimony of the father and brother of the defendant was in substantial support of defendant's account. Cuts on his coat and bruises on his knees were proved to have been shown not long after the occurrence; certainly that same night or early next morning.

His honor charged the jury, fully reciting the positions of the parties and much of the evidence.

There was verdict of guilty of manslaughter. Judgment on the verdict and defendant excepted and appealed, assigning for the error a portion of his honor's charge, as follows:

"Now, the law is that if a person by his own conduct, either by word or acts calculated and intended to provoke a difficulty, induces or provokes another to assault him, and a combat ensues, and the person who provokes another to assault him fights willingly and wrongfully, he is at least guilty of manslaughter, unless, before delivering the fatal blow or act, he has in good faith abandoned the difficulty, and retreated as far as he can with safety, and then only can he be heard to plead self-defense, if he has been at fault in bringing on the difficulty."

And the refusal to give the following prayer in reference to the dying declarations of the deceased:

"The admission of dying declarations is the exception to the general rule of evidence, which requires that the witness should be sworn and subjected to a cross-examination. The solemnity of the occasion may reasonably be held to supply the place of an oath, but nothing can fully supply the absence of a cross-examination. Such declarations should be received with much caution on account of the absence of such cross-examination, and the jury in this case, in passing upon the credibility of the alleged dying declaration in this case, should take into consideration that the deceased was not subjected to a cross-examination."

J. C. Brooks, of Marshville, F. I. Osborne, of Charlotte, R. L. Smith, R. E. Austin, G. D. B. Reynolds, and A. C. Huneycutt, all of Albemarle, and J. J. Parker, of Monroe, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE J.

In State v. Brittain, 89 N.C. 481, and in reference to defendant's first exception, this court held:

"Where a prisoner makes an assault upon A, and is reassaulted so fiercely that the prisoner cannot retreat without danger of his life, and the prisoner kills A, held, that the killing cannot be justified upon the ground of self-defense. The first assailant does the first wrong and brings upon himself the necessity of slaying, and is therefore not entitled to a favorable interpretation of the law."

And, in support of the position, Ashe, Judge, delivering the opinion, quotes from Lord Hale, as follows:

"If A assaults B first, and upon that assault B reassaults A, and that so fiercely that A cannot retreat to the wall or other

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