State v. McDowell

• Decision Date: 12 November 1901
• Citation: 39 S.E. 840,129 N.C. 523
• Parties: STATE v. McDOWELL.
• Court: North Carolina Supreme Court

39 S.E. 840

129 N.C. 523

STATE v. McDOWELL.

Supreme Court of North Carolina

November 12, 1901

Appeal from superior court, Robeson county; McNeill, Judge.

James McDowell was convicted of murder in the second degree, and he appeals. Reversed.

Where the court states to the jury in its general charge every reasonable contention of the state, it is error to give an entirely new charge, at the state's request, commencing "The prisoner is charged with murder in the first degree," and then follow it with a powerful summing up for the state, as it is calculated to prejudice the minds of the jurors.

Wade Wishart, W. D. Bizzell, and R. E. Lee, for appellant.

McLean & McLean and The Attorney General, for the State.

FURCHES C.J.

The prisoner was indicted for the murder of one Harlee Leak convicted of murder in the second degree, sentenced to 10 years in the penitentiary, and appealed; and, this being a court of errors, we can only consider the errors of law presented by the record.

There are several exceptions to the ruling of the court upon the evidence, none of which can be sustained.

The witness James Jenkins was asked by the state: "Was it light enough for defendant to have seen deceased as he passed out of the house, and know who he was?" To the question the prisoner objected, and, upon his objection being overruled, excepted. This exception is put upon the ground that the question "involved the expression of an opinion by the witness," and State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037, is cited as authority for this contention. But we do not think McLaughlin's Case sustains the exception. In that case two statements of the evidence were made, and the witness was asked and allowed to testify that in his opinion they were substantially the same. This was purely a matter of opinion, and invaded the province of the jury. Not so in this case, which was a statement of what he knew by sight, and not what he believed by the exercise of his mind and powers of reasoning.

The next exception is to the exclusion of what the prisoner said to James Jenkins after the shooting. This exception cannot be sustained, as it does not appear to be a part of the res gestæ, nor does it appear to be as to a conversation between the witness and Jenkins, about which Jenkins had testified.

Another exception is to the evidence of Sheriff McLeod at the time he arrested the prisoner. It appears that the sheriff and three other men went to the house of the prisoner about 11 o'clock the night the deceased was killed, for the purpose of arresting him. The door was closed, and the sheriff pushed it open, and he and the three persons with him, acting as his deputies, went in, and found the prisoner standing near the foot of the bed. They drew their pistols, and told him that he was their prisoner and to throw up his hands, which he did, and asked what was the matter. The sheriff replied: "You know what is the matter. You have killed Harlee Leak." To this the prisoner replied "that he had not done anything of the kind. He said he had not had his pistol. It had been home with his wife. He didn't seem to know much about the shooting." The evidence was received over the objection of the prisoner, upon the ground that it was not a confession obtained through fear. But the prisoner contended that it should not have been admitted, under the rulings of this court in the cases of State v. Dildy, 72 N.C. 325, and State v. Davis, 125 N.C. 612, 34 S.E. 198. It does not seem to us that either of these cases sustains the exception. In the case of State v. Davis the defendant was arrested by one Conrad, and while under arrest Conrad said to him "that he had worked up the case, and he had as well tell all about it." At first the defendant denied any knowledge of the alleged stolen articles, but afterwards said that another person had brought them to his house, and this evidence was held to be incompetent. But Davis' Case differs from this in two respects. In that case the defendant was induced to make the confession by being told by the officer that he "had worked up the case, and he had better tell all about it," while in this case nothing of the kind was said to the prisoner, but he volunteered to say what he did. But a greater distinction is that in this case there was no confession. The prisoner denied all knowledge of the killing, and it is difficult to see how this could be considered a confession of the crime.

There are other matters shown by the record which have given us trouble. It appears from the evidence offered by the prisoner that other shots were fired than those fired by the prisoner and from different directions. There is also evidence tending to show that, if the deceased was killed by the prisoner, he would have been shot in the back, while the evidence is that he was killed by a shot from the front. It is also in evidence from the sheriff and others with him at the time of the arrest that the prisoner's pistol, freshly fired, was a 32 Iver & Johnson pistol. This evidence was undisputed and uncontradicted. G. W. Waddell took the witness stand, with his scales, and, in the presence of the court and jury, proceeded to weigh the bullet that killed the deceased, and to weigh one taken from the prisoner's pistol by the sheriff. The bullet that killed the deceased weighed 105 grains, and the bullet taken from the prisoner's pistol by the sheriff when he arrested the prisoner weighed but 85 grains; and the witness Waddell testified that the bullet which killed the deceased could not have been shot out of a 32 Iver & Johnson pistol. This evidence was uncontradicted. And we find that at the request of the prisoner the court charged the jury "that, if you find from the evidence that the deceased came to his death by a bullet which could not have been fired from an Iver & Johnson 32 cal. pistol, you should acquit the prisoner." But they found him guilty. We suppose they did not believe this undisputed testimony of the witness Waddell. The prisoner asked several instructions, all of which were given but one, and that one should not have been given. The state asked several special instructions, all of which were given and excepted to by the prisoner; and the "case" states: "His honor, after having stated to the jury in his general charge every reasonable contention of the state, gave the following special instructions asked by the state: '(1) The prisoner, Jim McDowell, is charged in the indictment with murder in the first degree. Under the indictment the jury may find a verdict of murder in the first degree or the second degree or manslaughter, or not guilty, accordingly as the jury may find the facts to be from the evidence produced upon the trial. If the state has satisfied you beyond a reasonable doubt that the prisoner slew the deceased with a pistol, as contended for by the state, then the law presumes that the prisoner is guilty of murder in the second degree, and the burden shifts to the prisoner to satisfy the jury, not beyond a reasonable doubt, but simply to satisfy the jury of such mitigating circumstances as are sufficient in law to mitigate and reduce the murder in the second degree to manslaughter.' This instruction was given, and prisoner excepted. '(2) If you find beyond a reasonable doubt from the evidence in this case that the prisoner slew deceased with a pistol, and if the prisoner has failed to show to the satisfaction of the jury such mitigating circumstances as in law would reduce the killing to manslaughter, then the jury should find a verdict of murder in the second degree.' Given. Prisoner excepted. '(3) The first thing for you to decide is, did the prisoner slay the deceased, as is alleged by the state? And the state relies on the following testimony to sustain its contention that the prisoner actually slew the deceased: The evidence of Dave Sammons, who was with the deceased at the time he was shot; Jim Jenkins, who was with the prisoner at the time he fired the pistol; John Leak, who testified as to threats on the afternoon before the killing; of Mary Faulk, who testified as to hearing three shots in the direction of Jim Jenkins' house, and who also testified that he examined pistol found in possession of prisoner after the killing, and which had been recently shot; of Sheriff McLeod, who examined the pistol found in the possession of prisoner; of Jim French, who was immediately behind the prisoner when he fired the pistol; and other evidence tending to show that the shot which struck Harlee was fired from the direction of Jim Jenkins' house, in which...