State v. Lambert
| Decision Date | 31 October 1885 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JACKSON LAMBERT. |
This was an indictment for MURDER, tried before Gilmer, Judge, at Spring Term, 1885, of SWAIN Superior Court.
The case, on motion of the prisoner, had been removed from Jackson county to Swain county for trial.
On the trial, one Jones, examined as a witness for the State, testified substantially, that on the evening of the homicide, ten or a dozen persons met at his father's house, which was near a public road, and some of them had liquor, and the most of them were drinking; that he found deceased at the house, apparently under the influence of liquor; that outside of the fence in front of the house, and about seven feet from the gate, there was a wagon bed lying, distant eight or nine steps from the house; that two or three minutes before the homicide, witness saw the prisoner in the wagon bed; the deceased started to leave about dark, and witness accompanied him to the gate to fetch deceased's mule; that getting outside the gate, he and deceased being together, the prisoner who was still in the wagon bed, asked, “who are you?” Deceased answered, “it is us.” Prisoner, with an oath, said, “wait until I get my pistol, and I'll show you who ‘us' is,” and fired. Deceased sat down on the walk, and witness, pausing a moment to see if there would be any more firing, went on rapidly to the stable, and as soon as he reached the stable, heard another shot fired, went back to where he left deceased, and found him at the same place. He was carried into the house, and it was found that he was shot in the left hip, and he died the next night about two o'clock. Witness swore positively that it was the prisoner who did the shooting; that he recognized him by his voice, and the blaze of the pistol shot.
The State introduced a number of other witnesses, tending to corroborate the witness Jones, and the dying declarations of the deceased.
The prisoner, on the cross-examination of one of the State's witnesses, proposed to prove that the deceased was a revenue officer, and that Bragg Jones, a State's witness, and one of the persons present at the house during the afternoon and night of the homicide, was a dealer in illicit whisky, for the purpose of showing a motive on the part of Bragg Jones to commit the murder charged against the prisoner, the State's witnesses having testified to facts tending to show, that until that day the prisoner and the deceased were strangers to each other, and that evening had been introduced, and took a drink together, and parted apparently in a friendly manner.
The Solicitor objected to the evidence. It was rejected by the Court, and the prisoner excepted.
The prisoner offered himself as a witness in his own behalf; he denied the shooting, and said he was not present when it occurred; and proposed to prove that Bragg Jones was a blockade distiller and prisoner had bought liquor from him, and that evening Jones told him that he was keeping and selling illicit liquor, and would sell prisoner some, if he would keep it a secret from the revenue officers. The evidence was objected to by the Solicitor, disallowed by the Court, and the prisoner again excepted.
It was also in evidence that before deceased left the house, one of the persons present, in going out at the gate, found prisoner lying in the walk, and came near stepping on him, and prisoner got up and went to and got in the wagon bed.
The prisoner asked the following instructions to the jury:
1st. That if the prisoner was there, and they should so find, and fired the fatal shot, from the effects of which Wilson died--(which shot was without motive)--the offence would only be manslaughter, and they should so find.
2d. That if they should find that the prisoner was there, and that there was no malice, though he should have fired the pistol in a heedless and incautious manner, it would only be manslaughter.
3rd. That if the witnesses for the State, by their conflicting testimony, shall leave a reasonable and real doubt on their minds, as to which of them had told the truth, then they should discard their testimony in making up their verdict altogether, and determine the case as if they had not testified.
4th. That if the prisoner was present at the place of shooting, and shot the deceased under the influence of sudden passion, produced by the treading on him while lying on the ground, it would only be manslaughter and not murder.
The Court refused to give these instructions to the jury, and charged them in substance, that the fact of a killing with a deadly weapon being proved or admitted, the burden of showing matter of mitigation is then on the prisoner, unless it arises out of the testimony produced against him. That in this case, it being admitted that the deceased came to his death by a gun-shot wound, at the hands of some one, the jury was to find whether the prisoner did the shooting, and if they were satisfied beyond a reasonable doubt that he did, then there being no matter of excuse offered in evidence, or tendered by the prisoner, who absolutely denied the shooting, it was their duty to find the prisoner guilty of murder.
The jury found the prisoner guilty of murder.
After verdict, prisoner moved for a new trial on the ground of the errors alleged in the exceptions taken on the trial, and on the further ground that one of the jurors who acted in the case, was under twenty-one years of age and not a freeholder.
In the selection of the jury, this juror had...
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