State v. Martin

• Decision Date: 31 December 1841
• Citation: 2 Ired. 101,24 N.C. 101
• Court: North Carolina Supreme Court
• Parties: STATE v. EDMUND MARTIN.

2 Ired. 101

24 N.C. 101

STATE

v.EDMUND MARTIN.

Supreme Court of North Carolina.

December Term, 1841.

The Court is not bound to lay down to the Jury an abstract proposition, but only to state the law as applicable to the evidence introduced.

If A., from previous angry feelings, on meeting with B., strikes him with a whip, with the view of inducing B. to draw a pistol, or believing he will do so, in resentment of the insult, and determines, if he does so, to shoot B. as soon as he draws, and B. does draw, and A. immediately shoots and kills B., this is murder.

It is not the duty of the State or of those who prosecute for it, to examine, on a criminal trial, all the witnesses who were present at the perpetration of a fact, or all the witnesses who had been sent to the Grand Jury. It is the province of the prosecuting officer, and not of the Court, to determine who shall be examined as witnesses on the part of the State.

An objection to a grand-juror comes too late after a plea to the felony.

A clerk of a court, to whom a certiorari has been directed, should make a return that “in obedience to that writ he has sent the annexed record;” and this should be made under his hand and seal of office.

A court may either sit without adjournment or it may adjourn from one day to another within the term allotted to it; but it is not necessary to state the adjournment on the record.

Where two or more are indicted, it is competent for the court to order a removal of the trial of one, on his application, to another county, without removing the trial of the others.

Where the record uses the past tense, as that, in the award of a venire facias, the Sheriff was commanded, or the indictment was found &c., this, though not strictly regular, has been for so long a time the practice in this State, that the Court will not pronounce it a fatal error.

Where two have been tried on an indictment, and the record sent to the Supreme Court sets forth only the verdict in the case of the one who appealed, and does not state the verdict in the case of the other, this is not an error of which the appellant can take advantage.

This was an Indictment for the wilful murder of William W. May, tried at Fall Term, 1841, of Richmond Superior Court of Law, before his honor Judge PEARSON. The indictment, which was against the defendant and two others, had been found a true bill at the Fall Term, 1841, of Anson Superior Court of Law. At this term, the defendants plead not guilty, and on affidavits respectively made by the present defendant and by Thomas Waddill, another defendant, the trial of these two was removed to Richmond Superior Court of Law. The Solicitor for the State then entered a nolle prosequi as to the other defendant, William Gatewood. The trial of the present defendant and Thomas Waddill came on before a jury at Richmond Superior Court of Law. The Solicitor for the State called Vincent Parsons, who swore that he never heard any threats and never knew of any unkind feeling in either of the prisoners towards May, the deceased. They both disapproved of the match between May and Julia Martin, the sister of the prisoner Martin. He never heard Waddill speak disrespectfully of May--heard him say he believed letters were passing between him and Julia--heard Martin say he was certain May had been writing letters to Julia. When he said this, witness could not perceive he was angry. Witness concerned himself but little with their family matters--he had married the mother of Martin--Waddill had married one of Martin's sisters.

Philip Henry swore that, on the Sunday before the election in May last, he went to Mrs. Martin's and delivered Julia a letter from May--that while there, Martin charged him with carrying letters from May to Julia, and said that whoever carried his letters was as damned a rascal as May; that if May ever came upon the premises he would kill him, he had money enough to pay for it. On the night before the election May staid with witness at his father's. The next morning they went to May's house to breakfast; while there they loaded two pistols belonging to witness; May carried one, witness the other. The pistol May had was an ordinary pocket pistol--the barrel about two inches and a half long--it shot with force--once shot a ball through an inch plank at the distance of fifty yards. May said he was going to the election to show his independence--he was not afraid of Martin, and, if attacked by him, would defend himself. They called by for Capel and then walked to the election; each had a hickory walking stick. Capel had no pistol. The election was held on the 13th of May last, at the house of one Smith, in the County of Anson. Witness and May acted as clerks of the election--were called on after they got on the ground--Waddill was the superintendent of the election--Waddill and May spoke as usual--there was no exhibition of hostile feeling on the election ground. A short time before the polls were closed May and Gatewood took a walk. After the polls were closed, witness, May, Capel, William Smith, and Samuel Smith, started home, all walking. They had got about one hundred and fifty yards, and were in Smith's lane, when they heard horses coming, and, looking round, saw Martin, Waddill, Gatewood, and Whitlock, coming in a walk or a trot. Martin rode up first. They divided to let him pass--witness, May, and William Smith, turned to the left, Capel and Samuel Smith to the right. Martin rode past and immediately turned his horse across the road in front of May--Waddill, Gatewood, and Whitlock rode up abreast and stopped, the head of Waddill's horse being near the tail of Martin's--the lane fence was on the left, and so they were hemmed in by Martin's horse in front, Waddill's on the right, and the fence on the left. As soon as Martin stopped he said, “May, I understand you came here to-day to make an attack on me.”--May said, “who is your author?” Martin said, “a respectable man.” May said, “who is he?” Martin said, ““Gatewood.” May said, “did I tell you so, Mr. Gatewood?” Gatewood said, “Yes.” Martin said, holding a whip in his hand, “I have a mind to horse-whip you.” Waddill said, “What does he say? God d--n him, whip him.” May looked at Waddill and said, “You would, eh?” Waddill got out a pistol, his little son, William, who was behind him, having tried to prevent him, he cocked it and held it up over May, the muzzle not being pointed at him, and said, “Damn you, I have a mind to shoot you.” May opened his breast and said, “Here is an open breast, shoot.” Whitlock came up and took little William, who was crying, off the horse, and put him on the ground. Waddill drew back his pistol, and witness did not see it again, and turning to witness said, “You are as damned a rascal as May.” Whitlock said to witness, “Do'nt mind what he says.” Witness said, “I can take that from you.”

Waddill said, “Damn you, I can whip you.” Waddill looked towards where May was standing, and said something, witness could not tell what--but witness looked and saw Martin standing near May, with a pistol presented near his face--it fired instantly. May fell, and died in twenty-five or thirty minutes--the ball entered his left eye near the temple. The whole took place in a very short time. May, when shot, stood a few paces from witness, with his back to him, and nearly between witness and where Martin stood when he fired. Witness did not see May's pistol until he was on the ground, when it was lying between his right arm and side--did not notice whether it was cocked or not. As soon as May fell, Waddill, who was still on his horse, said, “Edmund, you have killed him.” Martin said, “Why then did he draw his pistol on me first?” and then said, “What shall I do?” Waddill said, “““Go home.” Martin said, “Follow me,” and got on his horse and rode off. Waddill then said, “This is an unfortunate affair; I little expected it.” Witness suggested that Martin should be arrested. Waddill said, “Yes, arrest him.” Witness started back to the election ground to get help. Upon cross-examination, witness said he took the pistol to the election, because he expected Martin would be there, and was determined not to be imposed on--he was too young to vote. Capel did not vote. Witness had agreed to go with May and help steal Julia. Witness was the nephew of Mrs. Parsons. Through Smith's lane was the way for Martin, Waddill, and Gatewood to go home.

Thomas Capel was next called by the State and sworn. He described the affair as Henry did, with this difference--he was on the outside of the horses, while Waddill and May were talking; Martin got off of his horse on the outside from May--did not fasten him--had a whip in his hand--witness saw no pistol. Witness said, “Martin, you ought not to interfere with May--he has given you no provocation.” Martin replied, “You are all d____d rascals,” and walked between the tail of his horse and the head of Waddill's, his back to witness--Waddill was then abusing Henry. Martin took the small end of the whip in his left hand, walked up to May, and gave him a light tap with the butt end on his breast. May put his hand in his pantaloons pocket and got his pistol to his hip. Martin very quickly presented his pistol and fired. May fell to the ground, and died without speaking. He was shot in the left eye. Witness did not see where Martin drew his pistol from--did not think May had got his pistol higher than his hip when May fired--between the tap of the whip and report of the pistol could have counted 1, 2, 3. Witness being asked by the prisoner's counsel, with a view to impeach him, if he had not said, at the burial of May, that, if Martin had not fired as quick as he did, he would have been a dead man in a second, did not recollect saying so. Witness had agreed to go with May and see him married.

William Smith for the State. He described the affair as Capel did, with this difference--he was on the inside with May and Henry, but,...