State v. Lipscomb

• Decision Date: 05 April 1904
• Citation: 47 S.E. 44,134 N.C. 689
• Parties: STATE v. LIPSCOMB.
• Court: North Carolina Supreme Court

47 S.E. 44

134 N.C. 689

STATE v. LIPSCOMB.

Supreme Court of North Carolina

April 5, 1904

Appeal from Superior Court, Granville County; Cooke, Judge.

Archie Lipscomb was convicted of murder in the first degree, and he appeals. Affirmed.

In a prosecution for murder, the court instructed that, defendant having admitted that he killed deceased with a deadly weapon there was not in evidence any facts or circumstances sufficient to rebut the presumption of malice from such killing with a deadly weapon, and that defendant was guilty at least of murder in the second degree. Held that, the jury having found that defendant killed deceased intentionally and willfully, and with premeditation and deliberation, the instruction, if erroneous, was not prejudicial.

The defendant was indicted in the superior court for the murder of Caswell Merrett, and, having been convicted of murder in the first degree, appealed.

Mary Merrett, a witness for the state, testified: "I am the wife of the deceased, Caswell Merrett, who was about forty years old. He lived on W. L. Umstead's place, in this county. Arch Lipscomb lived about one-quarter of a mile from us. On Friday night, the 10th of January, it being dark and cloudy, and about one hour after dark, Arch Lipscomb came to our house. He came in. My husband was sitting near the fireplace, near the bed, and I was plaiting my hair. My husband was sitting about 12 or 15 feet from the door. Arch came in and sat down in the corner. Arch and my husband got to arguing about the Scriptures. They did not seem to be angry, and Caswell said something Arch did not like. I do not remember what. Arch jumped up and said, if his best friend was going back on him for somebody else, that was all right. And he stepped out of the door at once and came back, and before I had turned my head he had shot. He did not have the gun in the house, but got it outside of the door. Caswell was sitting down, with his legs crossed, and his head hanging down. He had not gotten up from the chair. It was a shotgun and the load went into my husband's throat, and he died at once, without ever speaking. I went up the lane and hallooed for Mr. Umstead, and he came. My husband was still sitting in the chair, but dead. As soon as Arch shot, he left there. There was a lighted lamp on the table near Caswell and the shot broke that to pieces. There are two rooms in our house. They had just a religious argument about the Bible but I never heard my husband making threats. I did not have anything against the defendant, and I have not got anything against him now."

W. P Wheeler, a witness for the state, testified: "I arrested the defendant next morning after the killing, and, without any word of inducement or threat, he told me he killed the deceased. He said the deceased had threatened him and his wife's life and they were afraid of him, and that he carried his gun over and shot him and killed him that night. I never heard that deceased and his wife were 'conjurers' until after the killing. I did not know of any ill feeling between the parties. The defendant did not try in any way to escape. He was dressed up when I got him, and said he was waiting for the officers."

The defendant, in his own behalf, testified: "I shot and killed Caswell Merrett on the night of January 10th last. I left home about one-half hour by sun to go hunting. I went down on Mr. Williams' land and Mr. Eugene's [[[Umstead's]; and then, when I got to the deceased's house, I set my gun down by the door and went inside the house. Caswell Merrett had before been threatening mine and my wife's life several times. He said he had given my wife three weeks in the way he was going to do, and that was to kill her--I understood it. I have seen him run up and take hold of her with both hands. I was afraid of the deceased. He and I got to talking together at his house that night, and we both seemed to get mad. I thought he was a conjurer, and I am afraid of a conjurer. It was not my intention to kill the deceased when I left home. I went hunting. I went up and hallooed at his house. He hallooed out and invited me in. I went in. I had been before that time so wrought up on account of the threats he had made that I could not work in my field. We first commenced talking about arithmetic, and then we got on the Scriptures. I arrived at the deceased's house about dark, and remained about an hour, and then shot him, and left immediately. I did not like the way he had been fooling around my wife. It looked like he had been trying to get between me and my wife. During Christmas my wife was at his house, and she said he caught her in his arms and hugged her. I did not kill any birds that hunt."

Mary Lipscomb, a witness for the defendant, testified: "I am the wife of the defendant. I was at home that afternoon. I was sick in bed, and had been for about a week. Arch left home before night. He did not tell me what he was going out for. The deceased sometimes visited us."

Eugene Umstead, a witness for the defendant, testified: "I live near the parties. My attention was first attracted when, a little before ten o'clock, my attention was directed to Caswell Merrett's house by his wife's hallooing. When I reached the house, Caswell was sitting up in the chair, dead, with his legs crossed, and his head fallen to one side, and his hand hanging down by his side."

There was evidence to the effect that the general character of the defendant is good.

"The court instructed the jury as to what constituted murder in the first and second degrees and manslaughter, and also instructed them fully as to the law of malice, explaining to them the difference between general malice and particular malice, and further instructed them that, to constitute murder in the first degree, there must exist on the part of the slayer towards the deceased express malice, and that, in order to convict the prisoner of murder in the first degree, the jury must be satisfied beyond a reasonable doubt that he slew the deceased with particular or express malice, and that he did it with premeditation and deliberation. The court also called the attention of the jury to the evidence, and gave the contentions of the parties."

First exception: There was no exception to the charge of the court, save to the following instruction: "The defendant having admitted that he killed the deceased with a deadly weapon, there was not in evidence any facts or circumstances sufficient to rebut the presumption of malice from such killing with a deadly weapon, and that the defendant was at least guilty of murder in the second degree." The jury rendered a verdict of murder in the first degree. The defendant moved for a new trial for error in the charge as above pointed out by his exception. The motion was overruled, and the defendant excepted.

Second exception: "The defendant then moved to set aside the verdict, and for a venire de novo, on the ground that it had been discovered since the verdict that B. F. Blackwell, one of the jurors in the case, was under 21 years of age. The court found as a fact that the said juror would not be 21 years old until next July, and that the fact was unknown to the defendant or his attorney, or the solicitor of the state, or any other officer of the court. The court also overruled this motion of the defendant, and the defendant excepted. The court then pronounced judgment upon the verdict as contained in the record, and the defendant appealed to the Supreme Court, and was allowed to appeal without giving security."

The Attorney General, for the State.

WALKER, J. (after stating the case).

There was no exception taken to the charge so far as it related to murder in the first degree. In this respect the instructions of the court to the jury were full and explicit, and sustained by all of the authorities. State v Gilchrist, 113 N.C. 673, 18 S.E. 319; State v. Fuller, 114 N.C. 885, 19 S.E. 797; State v. Norwood, 115 N.C. 789, 20 S.E. 712, 44 Am. St. Rep. 498; State v. McCormac, 116 N.C. 1033, 21 S.E. 693; State v. Gadberry, 117 N.C. 811, 23 S.E. 247; State v. Covington, 117 N.C. 834, 23 S.E. 337; State v. Thomas, 118 N.C. 1113, 24 S.E. 431; State v. Dowden, 118 N.C. 1145, 24 S.E. 722; State v. Rhyne, 124 N.C. 847, 33 S.E. 128; State v. Spivey, 132 N.C. 989, 43 S.E. 475; State v. Cole, 132 N.C. 1069, 44 S.E. 391. There was ample time for deliberation and premeditation by the defendant, according to any rule that has been laid down upon the subject. No particular time is...