State v. Lawhorn
| Decision Date | 28 February 1883 |
| Citation | 88 N.C. 634 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. SYLVESTER LAWHORN. |
INDICTMENT for assault and battery, removed from Lenoir county, and tried at Fall Term, 1882, of DUPLIN Superior Court, before MacRae, J.
The defendant is charged with an assault and battery with intent to kill, committed upon one Bryan.
As made by the evidence offered for the prosecution, the case is as follows: The parties accidentally met in the streets of Kinston, the defendant being partially intoxicated. Upon learning who the defendant was, Bryan asked him how he had come out in his difficulty with one Cox, to which he replied by asking “what have you got to do with it? what is Cox to you?” Bryan told him that Cox was a friend of his, but that he had only inquired of him from a desire to know how their difficulty terminated. The defendant then began to curse Bryan, and upon his turning to leave, caught him by the shoulder and jerked him back, saying: “I want to know who in the hell you are, and what you've got to do with Cox?” and upon being answered as before, drew his pistol. Bryan said to him that he did not fear his pistol, but that he should avoid a difficulty as far as he could; whereupon the defendant accused him of having drawn a knife, but was assured that it was not so, and that he only had a small knife, with which he had been whittling. At the suggestion of a friend present, Bryan put up his knife, when the defendant began again to abuse him. A policeman come up, and learning what had transpired, laid his hand upon the defendant, and told him to consider himself under arrest. The defendant then said, “I don't intend to be imposed upon by any such d--d son-of-a-bitch,” which Bryan said he could not stand, and struck the defendant, who immediately shoved him back, and shot him in the side with the pistol.
As made for the defendant, the case is as follows: The defendant passed two men in the street whom he did not know. After he had gotten some ten steps beyond them, he heard them talking low to themselves, and then one of them, who turned out to be Bryan, called to him so that he turned back. Bryan then said to him, “do you want to whip Cox,” to which he replied, “no, whenever I get ready to whip any one I'll do so.” Bryan then declared that Cox was his friend, drew a knife, and said he would use it on the defendant if he fooled with him, or said he wanted to whip Cox. The parties then quarreled and cursed each other, Bryan having his knife in his hand and the defendant having his hand on his pistol. The policeman interfered, caught hold of the defendant and pushed him back, and told him to consider himself in arrest. He again cursed Bryan, and upon being stricken by him, shot him with the pistol. Defendant afterwards found that his coat had been cut with a knife. The defendant was examined as a witness in his own behalf, and upon his cross-examination was required to say, notwithstanding his objection, that he had been twice indicted for fighting and once for fornication and adultery; to which he excepted.
One Walters was examined, and testified that just before the difficulty between the parties occurred, he saw the defendant in conversation with two colored men, and, as he turned off from them to cross the street, heard him say that he “would shoot some d--d white-livered son-of-a-bitch before he slept.” This was objected to by the defendant, but admitted as tending to show the reckless state of his mind; to which he excepted.
Amongst other instructions asked for the defendant, the court was requested to say to the jury that if they should believe that the defendant, when he was held by the policeman and assaulted by Bryan, had reasonable grounds to believe that Bryan had a knife, and apprehended death or great bodily harm, he had a right to use a pistol or other weapon necessary to his defence. This was refused, and the defendant excepted.
The court charged the jury that if the defendant first used language to the prosecutor calculated to provoke a breach of the peace, so that the prosecutor struck him, and he then shot the prosecutor, he would be guilty; that if the defendant called the prosecutor a d--d son-of-a-bitch,...
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