State v. Kimbrell

• Decision Date: 24 November 1909
• Citation: 66 S.E. 208,151 N.C. 702
• Parties: STATE v. KIMBRELL.
• Court: North Carolina Supreme Court

66 S.E. 208

151 N.C. 702

STATE v. KIMBRELL.

Supreme Court of North Carolina

November 24, 1909

Appeal from Superior Court, Mecklenburg County; Councill, Judge.

C. B Kimbrell was convicted of an assault with a deadly weapon and appeals. Affirmed.

In prosecution for homicide, evidence of previous threats is admissible, if the killing was in self-defense, or the evidence is circumstantial.

The defendant was indicted and found guilty of an assault with a deadly weapon. The evidence of the state was to the effect that while Charles Thomas, prosecuting witness, was in the Driving Club in Charlotte, defendant came into the club, and without warning, provocation, or excuse, shot Thomas five times, inflicting upon him most serious bodily wounds. Two shots were fired after Thomas had fallen to the floor. The evidence of the defendant was that there had been a quarrel at the fair grounds the morning before the shooting between the defendant's brother, Charles Thomas, and Felix Thomas, in which Charles had offered defendant's brother Sam Kimbrell $10 to hit Felix, and had cursed defendant, who was not present. He further offered evidence that, before the shooting, Sam Kimbrell had communicated these facts to him and that, after having taken two drinks of beer with Charles Thomas, defendant started to leave the Driving Club, when Thomas grabbed him by the shoulder, and said: "Now, God damn you, I will settle with you." Whereupon defendant shot Thomas four or five times. Defendant then offered to prove by one John Ward, Jr., that a short time prior to the shooting Charles Thomas had said to him (witness) that defendant owed his (Thomas') sister $200, and that he would either have to pay it back or he would "fix him" if he crossed his path, and that this threat was communicated to the defendant prior to the shooting. Upon objection by the state, the court refused to allow the evidence to be received as substantive evidence, but only for the purpose of impeaching the witness Thomas. This was excepted to, and constitutes the only exception in the case.

T. L. Kirkpatrick, F. R. McNinch, and Burwell & Cansler, for appellant.

The Attorney General and Geo. L. Jones, for the State.

CLARK C.J.

The only question raised by this appeal is as to the competency of the evidence of previous communicated threats of violence made by the prosecutor against the defendant. The point has been settled by repeated decisions of this court that previous threats are not competent as substantive evidence except in cases of homicide. State v. Norton, 82 N.C. 628, cited and approved in State v. Skidmore, 87 N.C. 509; State v. Harrell, 107 N.C. 946, 12 S.E. 439; State v. Goff, 117 N.C. 762, 23 S.E. 355. There are many others to the same effect. The principle and the reasons given are stated so clearly in the above and other cases, and are so well known and adhered to, that we need only refer to these cases. All that is pertinent to show in c...