State v. Lilliston
| Decision Date | 28 May 1906 |
| Citation | 54 S.E. 427,141 N.C. 857 |
| Parties | STATE v. LILLISTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Ward, Judge.
Robert H. Lilliston was convicted of murder, and he appeals. Affirmed.
Where on a prosecution for murder, it appeared that defendant shot after decedent who assaulted defendant, was fleeing, an instruction that self-defense exists where one is suddenly assaulted, and in the defense of his person, where an immediate and great bodily harm would be the "apparent" consequence of waiting for the assistance of the law and "there is no other means of escape," he kills the assailant, is not erroneous.
Argo & Shaffer and J. N. Holding, for appellant.
The Attorney General, for the State.
It was in evidence that the prisoner, Lilliston, and one Clark, were two ""fakirs" who had been attending the Raleigh Fair, and on Thursday and Friday nights they, with others, were at a house of ill fame engaged in gambling and drinking, and that a difficulty sprung up there on Friday night between these men over charges of cheating. On Saturday, 21st of October, they went to the railroad station in Raleigh to take the train to leave the city, and there in the crowded reception room they engaged in shooting at each other; the next room, separated only by a glass partition being occupied by ladies and children. It is admitted by the prisoner that Clark fired two shots, and then ran out of the east door, and that Lilliston fired five shots; and these two men, who showed this contemptuous defiance of law, and of the lives of so many peaceable people who were entitled to the protection of the law in their lives and persons, escaped unharmed, while one bystander was killed, another seriously wounded, and others narrowly escaped. If they fought willingly in such a place, the reckless disregard of law amounts to malice, and, if any bystander was killed, both were guilty of murder, one as principal and the other as aiding and abetting. The homicide occurred in a crowded waiting room. The doctrine is well settled that 21 Am. & Eng. Enc. (2d Ed.) 153, and cases cited in the notes.
The jury have acquitted Clark; and Lilliston, convicted of murder in the second degree, presents in substance three grounds of alleged error in the conduct of the trial by the learned and impartial judge. He contends that the judge should have told the jury that there was no evidence against him either of murder in the second degree or manslaughter. It is admitted that Clark stood towards the southeast, and fired north-westwardly two shots, one of which struck above the ticket office. Mr. Horton testified that he dropped behind the radiator, and was struck on the buttock (which was exposed) by Clark's second bullet which entered, he says, from the side Clark was on, and which could not have come from the direction where Lilliston was at that time. Of the five shots fired by Lilliston, the location of four found embedded in the building are admitted. The state contends that Lilliston's other ball was the one found in the body of Smith, the deceased. There was evidence, if the jury believed it, that Lilliston dodged behind Smith, and that in the excitement Lilliston, the lodgment of whose other balls showed that he was firing wildly, shot Smith. The prisoner contended that this was not true; also, that it was Lilliston's ball that struck Horton; and, further, that a man named Arnold shot Smith. Only seven balls were traced, including those lodged in the bodies of Smith and Horton. All these matters were purely issues of fact for the jury, and not for the court. The court, in the words of the prisoner's prayer, charged the jury that The prisoner admitted that Smith was not killed by Clark. The bullet did not come from that side. He offered evidence tending to show that he fired in self-defense only, and there was evidence to the contrary, both that he began the difficulty, that he engaged in it willingly, and continued firing while the other man was running. These questions of fact were ably presented to the jury by counsel of great skill and long experience. There was evidence, as the judge properly held, to submit the case to the jury and their finding is not reviewable by us. Had the judge who tried this cause and heard the witnesses and could judge from their bearing as to the weight to be given their evidence, felt any doubt of the correctness of the verdict, it was in his power and it would have been his pleasure to set it aside. He refused to do so.
The prisoner also excepts to the following excerpt from his honor's charge: ""Another principle of law is where, in an indictment for murder, the state has satisfied the jury beyond a reasonable doubt that the prisoner slew the deceased intentionally with a deadly weapon, nothing else appearing, the law presumes that the defendant is guilty of murder in the second degree, and the burden of proof shifts to the defendant to satisfy the jury, not beyond a reasonable doubt but to simply satisfy them, that he was excusable or that the crime is for a lesser offense, to wit, manslaughter, which is, as I told you, the unlawful and felonious killing of a human being with malice aforethought; that is to say, that the defendant is called on to satisfy the jury of the existence of such facts and circumstances as will rebut the presumption of malice raised by the use of a deadly weapon, and reduce the grade of the offense from murder in the second degree to manslaughter, or to go further and satisfy the jury of the existence of such facts and circumstances as will justify the killing on the plea of self-defense--that is, that the prisoner had reasonable apprehension and did apprehend that it was necessary for him to shoot in order to protect his own life or save himself from great bodily harm." This charge is to be construed with the context, and, reading it in connection with the whole charge, we do not find any reversible error. State v. Tilly, 25 N.C. 424; State v. Boon, 82 N.C. 649; State v. Holman, 104 N.C. 867, 10 S.E. 758; State v. Gentry, 125 N.C. 735, 34 S.E. 706.
The prisoner further excepts to the following paragraph of the charge: "Self-defense exists where one is suddenly assaulted and in the defense of his person where an immediate and great bodily harm would be the apparent consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills the assailant." This paragraph is quoted from 1 Wharton, Crim. Law (9th Ed.) § 306. We see no ground for criticism of the word "apparent." It is favorable to the defendant. Had it been omitted, and the word "actual" had been used, the prisoner would have excepted. Nor do the words "and there is no other probable means of escape" improperly restrict the right of self-defense upon the circumstances of this case. The judge did not restrict self-defense to cases of sudden assault; but the prisoner contended that this was a sudden assault, and the judge charged that in such cases the right of self-defense exists if there is apparent danger from "waiting for the assistance of the law and there is no other probable means of escape." In State v. Kennedy, 91 N.C. 578, it is said: "There may be cases, though they are rare and of dangerous application, where a man in personal conflict may kill his assailant, without retreating to the wall." This is cited and approved in State v. Gentry, 125 N.C. 733, 34 S.E. 706. The doctrine of State v Blevins, 138 N.C. 668, 50 S.E. 763, and State v. Hough, 138 N.C. 663, 50 S.E. 709, is not in point here. Those cases hold that where a man is murderously assaulted, without fault on his part, he is not required to retreat to the wall, but may stand his ground and kill to save his own life;but to confer such right it must appear that the assault upon him was sudden, fierce, and continuous. But here this was not true, for Clark fired only twice, and then ran, and the prisoner testified that he fired himself five times, commencing when Clark was near the radiator in the center of the large room, and that he fired the last as Clark went out the east door. This evidence of Lilliston tends to show that Clark was not firing, but running, trying to escape. There was much other evidence to the same purport. In such state of facts the law is thus laid down in State v. Hill, 20 N.C. 629, 34 Am. Dec. 396: "Even if the prisoner had not begun the affray, but had been assaulted in the first instance, and then a combat had ensued, he could not excuse himself as for a killing in self-defense, unless he quitted the combat before a mortal blow was given, if the fierceness of his adversary permitted, and retreated as far as he might with safety, and had then killed his adversary of necessity to save his own life." Here, though, "the fierceness of...
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