State v. Merrick
| Decision Date | 18 October 1916 |
| Docket Number | 273. |
| Citation | 90 S.E. 257,172 N.C. 870 |
| Parties | STATE v. MERRICK. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Stacy, Judge.
Thomas Merrick was convicted of murder, and he appeals. Affirmed.
An instruction that "if you find that the defendant was actuated, and actually committed the act in the heat of passion, that is, in anger and under such circumstances as if his reason had been dethroned," immediately followed by "or he did not think calmly and deliberately and premeditatedly with malice aforethought, then that would reduce his crime from the highest degree," held full and explicit as to cooling time.
Burke H. Bridgers and William J. Bellamy, of Wilmington, for appellant.
The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.
The prisoner was convicted of murder in the first degree, and on appeal (State v. Merrick, 171 N.C. 788, 88 S.E 501) a new trial was granted, two judges dissenting. A second trial was had in accordance with the opinion of this court and the prisoner has been again convicted of murder in the first degree.
It was not denied that the deceased was shot and killed by the prisoner at about 4 p. m. August 31, 1915, at a bottling plant in Wilmington. The circumstances are detailed and reviewed in the opinion and the dissenting opinion on the former appeal and need not be repeated.
It was in evidence that the prisoner and the deceased had a dispute about a wagon rein, and some words, and, the prisoner refusing to leave when ordered, the deceased caught him by the neck and pushed him towards the front door. When he did so, the prisoner's cap fell on the floor near the door and he turned and went to the back of the building. The deceased then went to work unloading his wagon at the front. The prisoner in the meanwhile came back in about three minutes, picked up his cap, and again went off to the back part of the building. There is evidence that he said, "I will get you yet." In another "about three minutes" the prisoner came back a second time with his gun, opened the breach, and put in a cartridge, and, as the deceased was setting down a case, the prisoner threw his gun to his shoulder, cursing the deceased, fired, and the deceased fell.
The prisoner then threw down his gun and ran out the back way.
The evidence is that the deceased said nothing when the prisoner came back with his gun and had nothing in his hand. The prisoner was not working in the plant that day and had no business there, and the deceased had been authorized to keep those not employed out of the plant. The deceased did not advance towards the prisoner at the time he fired and said nothing to him.
The facts are so simple, and the case has already been so thoroughly discussed in the former opinion, that it is not necessary to elaborate the exceptions, of which only one indeed requires any discussion. One James Holmes testified that he worked at the plant and saw the prisoner and the deceased there. He also said:
He further testified that he does not know The witness stated that he was 16 years of age, and that on the former trial, the year before, he had testified that he was 12.
The prisoner made no objection or exception to the above testimony, but at the conclusion of this witness' testimony prisoner's counsel moved to strike out the testimony of James Holmes "by reason of the fact that it was vague, indefinite, immaterial, insufficient, and uncertain as to time." The motion was properly denied. An objection to testimony not taken in apt time is waived. State v. Downs, 118 N.C. 1243, 24 S.E. 531; State v. Braddy, 104 N.C. 737, 10 S.E. 261,
When testimony has thus been admitted without objection, the granting or denying a motion to strike it out rests in the discretion of the court. State v. Lowry, 170 N.C. 730, 87 S.E. 62; State v. Lane, 166 N.C. 333, 81 S.E. 620; State v. Efler, 85 N.C. 585. The prisoner's counsel further contends in his brief that the witness was incompetent by reason of infancy and incapacity. But that was a matter which should have been raised before the court by a motion that the trial judge should pass upon the competency of the witness to testify and his decision would not be reviewable. Not having done this, it must be assumed that the judge was satisfied of the maturity and mental competency of the witness. State v. Tate, 169 N.C. 373, 85 S.E. 383; State v. Stewart, 156 N.C. 636, 72 S.E. 193; State v. Edwards, 79 N.C. 648; State v. Manuel, 64 N.C. 601; State v. Perry, 44 N.C. 330.
The second assignment of error is to the refusal of the court of a motion to set aside the verdict, but this rested in the discretion of the trial court. State v. Johnson, 161 N.C. 264, 76 S.E. 679; State v. Millican, 158 N.C 617, 74 S.E. 107. The third assignment of error has been waived, and the fourth is to an alleged error in summing up the statement of the state's contentions. The counsel not having made this objection at the time so the judge could...
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...198 N.C. 82, 150 S.E. 678; State v. Miller, 197 N.C. 445, 149 S.E. 590; State v. Steele, 190 N.C. 506, 130 S.E. 308; State v. Merrick, 172 N.C. 870, 90 S.E. 257; State v. Cameron, 166 N.C. 379, 81 S.E. State v. McClure, 166 N.C. 321, 81 S.E. 458; State v. Daniels, 164 N.C. 464, 79 S.E. 953;......
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... ... years prior to the homicide does not make such evidence ... incompetent as a matter of law. As the judge told the jury, ... the remoteness goes only to the weight of the evidence and ... not to its competency. 8 R.C.L. 187. State v ... Merrick, 172 N.C. 870, 90 S.E. 257 ... In ... State v. Johnson, 176 N.C. 722, 97 S.E. 14, Brown, ... J., said (page 15): "We might hesitate to admit evidence ... of threats * * * made 2 years before the homicide, if they ... stood alone, * * * although threats made 12 months prior ... ...
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State v. Freeman, 14
...engendered by provocation which the law deems adequate to depose reason. State v. Merrick, 171 N.C. 788, 88 S.E. 501; State v. Merrick, 172 N.C. 870, 90 S.E. 257. Indeed, defendant does not make that contention. He now asserts that the killing was either unintentional or in self-defense. Ho......
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State v. Hawkins
... ... Merrick, 172 N.C. 870, 90 S.E ... 257; State v. Payne, supra ... In ... State v. Johnson, 176 N.C. 722, 97 S.E. 14, Brown, ... J., said [page 15]: "We might hesitate to admit evidence ... of threats to kill the deceased, made 2 years before the ... homicide, if they stood alone, ... ...