State v. McAfee

• Decision Date: 15 December 1890
• Citation: 12 S.E. 435,107 N.C. 812
• Parties: STATE v. McAFEE.
• Court: North Carolina Supreme Court

12 S.E. 435

107 N.C. 812

STATE v. McAFEE.

Supreme Court of North Carolina

December 15, 1890

Indictment for assault and battery tried at February term, 1890, of the criminal court of Mecklenburg county, before MEARES, J. The state introduced H. C. Severs, a justice of the peace, as a witness, who testified that he lived about a mile from Charlotte, his house being situated near a public road. About 8 o'clock at night, on a Saturday in July, 1890, he was informed by one Watts that the defendant was beating his wife, and about to kill her, and that he and his son went out to the road and heard persons talking in a loud tone down the road. They were coming up the road in the direction of witness' house. It was dark, and witness could not see the persons who were talking loud, but, when they approached to within 40 feet of him, he heard a blow given as with a stick, and a woman's voice cried out very loud, as if in distress. In a few minutes thereafter, the defendant and his wife came along the road, and the defendant had a stick in his hand, and was cursing and talking violently, and his wife was crying in a loud voice. Witness went up to the defendant and told him to consider himself under arrest, and immediately the defendant drew back his stick and told witness to stand back, that he had done nothing to be arrested for, and would not be arrested. The defendant held the stick uplifted, and in a position as if he intended to strike the witness; and witness, believing he was about to strike, got out of defendant's way, and defendant and his wife then walked on down the road. The stick was the limb of a sycamore tree, four or five feet long, and one or two inches in diameter. Witness did not see the defendant strike his wife. When he told defendant to consider himself under arrest, he was about to take hold of him in order to arrest him, but before he could do so the defendant lifted the stick, and assumed a striking position, and ordered him to stand back. Defendant is well acquainted with witness, and knew that witness was a justice of the peace. Witness had not issued any warrant, and did not profess to have any warrant in his possession at the time of the attempted arrest. William Severs, a son of the above-named witness, was introduced, and corroborated the statement of his father. The defendant introduced one Watts, who testified that he was walking along the road in company with defendant and his wife and sister, and, when they were near a bridge about one quarter of a mile from Sever's house, he saw the defendant push his wife two or three times, and slap her, but did not see him strike her with a stick; that he went up to Sever's house, who is a magistrate, and told him that defendant was beating his wife. The defendant testified in his own behalf that, while going along the road on the night in question, he pushed his wife two or three times merely in play, and she fell into a ditch, and then began to cry. He denied that he struck her with a stick, and stated that he did not strike her at all. When he got in front of Sever's house, Severs was standing in the middle of the road, and told him to consider himself under arrest, and he replied that he had done nothing to be arrested for. He walked around Severs and passed by him, and Severs never moved from his position. He neither raised his stick nor threatened to strike Severs. He had one or two drinks that evening. Maria McAfee, wife of defendant, testified that defendant did not strike her with a stick that night. She said he did not hurt her, and that she cried because her feelings were hurt. She did not think he was angry with her but that he had been drinking. She went home and stayed with her husband that night.

The defendants' counsel asked the court to instruct the jury (1) that there was no evidence that the prisoner assaulted Severs, the prosecutor; (2) that no person without a warrant could make an arrest unless he was present at a riot, rout affray, or other breach of the peace, and he could only make the arrest then when it was necessary to prevent or suppress the same; (3) that there was no evidence that there was any riot, rout, affray, or any breach of the peace committed by the defendant; (4) that there was no evidence that, if a breach of the peace was committed by George McAfee (defendant,) it was done in the presence of the prosecutor. The court refused the first, third, and fourth instructions but gave, in substance, to the defendant the full benefit of the second prayer for instructions. On the question which was raised as to what constitutes a presence in law, the court told the jury that an officer of the law had no power to arrest a person on a charge of assault and battery, or other breach of the peace, without a warrant,...