State v. Killian

• Decision Date: 23 May 1917
• Docket Number: 531.
• Citation: 92 S.E. 499,173 N.C. 792
• Parties: STATE v. KILLIAN.
• Court: North Carolina Supreme Court

92 S.E. 499

173 N.C. 792

STATE v. KILLIAN.

No. 531.

Supreme Court of North Carolina

May 23, 1917

Appeal from Superior Court, Buncombe County; Adams, Judge.

John Killian, indicted with Andy Bates for murder of George Bates was convicted of manslaughter, Andy Bates being acquitted and Killian appeals. Affirmed.

A witness, who has testified to the character of another, may be cross-examined as to particular facts to attack his estimate of character, or to contradict him, or to test his accuracy.

W. P Brown and Jones & Williams, all of Asheville, for appellant.

J. S Manning, Atty. Gen., and R. H. Sykes, Asst. Atty. Gen., for the State.

WALKER J.

When the state closed its testimony, and rested its case, the prisoner, John Killian, moved that a nonsuit be entered under the statute. Gregory's Supplement, § 3265a. This the court refused to do, and the prisoner excepted. It is contended that when this motion was made there was no evidence against the prisoner, John Killian, and if this be correct, and he had rested his case there, we would have sustained his motion and reversed the lower court. He was not content to stop and risk his case upon the state's testimony, but himself introduced witnesses, and from their testimony, and other testimony in the case, we are of the opinion that there was some evidence of his guilt. It is perfectly clear that the deceased was killed either by Andy Bates, his father, or the prisoner, John Killian. The former testified that he did not cut his son, and there was some evidence tending to show that a knife was found near or at the place where the homicide was committed, which corresponded somewhat with one that John Killian had. There was other evidence tending to connect him with the act of killing, but it is needless to review all of it, as, if there was any at all, the motion was properly denied.

But the prisoner does not rely so much upon the absence of proof as to his guilt, as he does upon the position, taken by him in argument and his brief, that, notwithstanding the fact that he introduced evidence after moving for a nonsuit when the state rested, he is entitled to have his motion considered upon the evidence as it was at that time, and that he did not waive his motion, or the exception to its denial by the court, by introducing evidence in his own behalf, even if the latter does tend to establish his guilt. We cannot accept this construction of the statute. The latter provides that the prisoner, at the close of the state's evidence, when it has rested its case, may move to dismiss, or for judgment of nonsuit, and if the motion is allowed it shall have the force and effect of an acquittal, but if it is refused the prisoner may except, and if he introduces no evidence the case shall be submitted on the evidence introduced by the state, and he shall have the benefit of his exception on appeal to this court. But he shall not be prevented from introducing evidence after his motion has been overruled, and may again move for judgment of nonsuit after all the evidence has been concluded, and if this motion is also refused, upon consideration of all the evidence, he may except, and, if convicted, he shall have the benefit of his exception on appeal, and the motion, if allowed at the time, or in this court on appeal, shall in all cases have the force and effect of a verdict of "not guilty."

There would seem to be no doubt as to the meaning of this statute. The prisoner's counsel argued that it was not like the "Hinsdale Act" (Laws 1897, c. 109; Laws 1899, c. 131; Laws 1901, c. 594; Revisal of 1905, § 539), because that act provides expressly that, if the defendant introduces evidence, he waives any previous exception to the refusal of his motion to nonsuit upon the plaintiff's evidence; but, while the phraseology is different, the meaning of the two acts is substantially the same. It will be noted that the second motion, or renewal of the first, must rest upon a consideration of all the evidence in the case. This plainly excludes the idea that the state's evidence first introduced may be considered alone or separate from the entire mass. The object of the statute, in permitting the prisoner to introduce evidence after moving for a nonsuit, was to preserve to him a right which did not exist before the statute was passed. The present Chief Justice said in Prevatt v. Harrelson, quoting from Means v. Railroad Co., 126 N.C. 429, 35 S.E. 813:

"The rule now stands just as it did before the passage of chapter 109, Laws 1897, and the amendment of 1899, except that, under this legislation, it is discretionary with the defendant whether he will introduce evidence after the motion to dismiss, or not; while before these acts it was discretionary with the court whether it would allow the defendant to introduce evidence after resting his case and making the motion."

Justice Hoke said in State v. Andrews, 166 N.C. 349, 81 S.E. 416, referring to the statute under consideration (Gregory, Supp. § 3265a):

"The statute, as its terms import, was no doubt passed to enable a defendant to present the question of his guilt or innocence, on the state's testimony, as a legal proposition to the judge, and thus, if successful, avoid the risk of an adverse jury verdict, and if the ruling was against him, and no further evidence is offered, to preserve the point on appeal from a final judgment in the trial then pending, a course not open to him before its enactment"--citing State v. Moody, 150 N.C. 847, 64 S.E. 431.

And again, quoting the statute:

"The very statute under which defendant now endeavors to proceed is in full recognition of the principle. Thus, when the motion is made on the state's evidence, 'the case shall be submitted to the jury as in other cases, and the defendant shall have the benefit of his exception on appeal,' etc., and 'if further evidence is introduced, and the motion is renewed on the entire testimony, and refused, the defendant may except, and, after the jury shall have rendered its verdict, defendant shall have the benefit of the latter exception on appeal,' " etc.

It may further be said that, if the prisoner's contention is right, there would be no necessity of a second motion or exception, as, according to his own view, the point must be decided upon the state's evidence alone, which was introduced prior to his first motion. The statute did not contemplate such a procedure, but, on the contrary, requires us to review the whole of the proof, upon the last motion entered by the prisoner. We must not be understood as conceding that there was no evidence against the prisoner when the state rested, but to have assumed, for the sake of the discussion, that there was not.

The objection to the charge is without real merit. The judge, in opening his charge, told the jury that the burden of proof was upon the state, and that they must be satisfied of the guilt of the prisoner beyond a reasonable doubt before they could convict him. It was not necessary that he should repeat this rule of law every time he referred to any finding from the evidence, as he had sufficiently instructed them as to the burden and the quantum of proof, and this applied to his charge throughout. We should construe the charge as a whole. McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244; Kornegay v. Railroad Co., 154 N.C. 389, 70 S.E. 731; McNeill v. Railroad Co., 167 N.C. 396, 83 S.E. 704. We said in McCurry v. Purgason, supra:

"The * * * exception addressed to a portion of the charge of the court to the jury cannot be sustained. If we consider this excerpt from the charge alone, it is not subject to the criticism that it omitted any reference to the evidence, or to the rule as to its weight or preponderance, while instructing the jury as to the

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