State v. Merrick

• Decision Date: 12 April 1916
• Docket Number: 274.
• Citation: 88 S.E. 501,171 N.C. 788
• Parties: STATE v. MERRICK.
• Court: North Carolina Supreme Court

88 S.E. 501

171 N.C. 788

STATE v. MERRICK.

No. 274.

Supreme Court of North Carolina

April 12, 1916

Clark C.J., and Allen, J., dissenting.

Appeal from Superior Court, New Hanover County; Daniels, Judge.

Thomas Merrick was convicted of murder, and he appeals. New trial ordered.

Under the statute, on indictment for murder there may be a conviction of murder in the first or second degree, or of manslaughter, as the facts may appear.

The evidence on the part of the state showed that, on August 31 1915, deceased was killed by a gunshot wound, intentionally fired by defendant. There was no testimony offered by defendant, and, on the facts in evidence, the jury rendered a verdict of guilty of murder in the first degree. Sentence imposing the death penalty, and defendant appealed, and pursuant to exceptions duly entered, among other things, made assignments of error in effect as follows:

(1) That the court, in its charge to the jury, entirely failed to present the question of manslaughter, when there were facts in evidence permitting an inference of manslaughter and properly requiring that this view of the case be considered by the jury.

(2) That the court, in its charge, entirely failed to give any explanation of the question or significance of "cooling time" in reference to its effect on the crime of manslaughter, when there were facts in evidence requiring that such question be referred to and properly explained.

(3) That the court, in its charge, affirmatively restricted the jury to the consideration of the questions of murder in the first and second degrees, when there were facts in evidence which permitted and required that the question of manslaughter should be also considered and passed upon.

(4) That the court, in its charge to the jury, presenting the issue, among other things, said: "So, gentlemen, the question for you, and the only question, according to the contentions of the state and defendant, is this: 'Did the defendant commit the act with deliberation and premeditation?' " thus confining the deliberations of the jury to the question of murder in the first and the second degrees, when there were facts in evidence tending to establish the crime of manslaughter and which should have been also submitted.

Wm. J. Bellamy, of Wilmington, and Burke H. Bridgers, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE J.

In general terms, "manslaughter" is said to be the unlawful killing of another without malice, an instance of the crime so defined being where one unlawfully kills another by reason of the anger suddenly aroused by provocation which the law deems adequate; anger naturally aroused from such provocation and the killing being done before time has elapsed for "passion to subside and reason to reassume her sway." In such case, the anger so aroused is held to displace malice, and will reduce the unlawful homicide to the grade of manslaughter. State v. Baldwin, 152 N.C. 822, 68 S.E. 148; State v. Hill, 20 N.C. 629, 34 Am. Dec. 396; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781. Speaking to this subject in Maher's Case, Christiancy, Judge, delivering the opinion, said:

"But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, then the law, out of indulgence to the frailty of human nature, or rather in recognition of the laws upon which human natureis constituted very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter."

And again, in same case:

"The principle involved in the question, and which I think clearly deducible from the majority of well-considered cases, would seem to suggest as the true general rule that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment."

In regard to the time to be allowed in the proper application of the principle, usually termed "cooling time," it is said to be the trend of the more recent decisions to hold that the question should be determined by the jury under the relevant facts of each case. Clark on Criminal Law, p. 228. But in this jurisdiction the rule has thus far prevailed that the question of cooling time is one of law for the courts, and only the existence or non-existence of the facts controlling its application in a given case is for the jury. State v. Moore, 69 N.C. 267.

These being the positions appertaining to the crime of manslaughter and more directly relevant to the question presented, it has been held with us in numerous cases, and the position is in accord with the authoritative decision elsewhere, that, where, in an indictment for murder, the law in this state permitting a verdict for a lesser grade of the crime, if there are facts in evidence tending to reduce the crime to manslaughter, it is the duty of the presiding judge to submit this view of the case to the jury under a correct charge, and his failure to do so will constitute reversible error, though the defendant may have been convicted of the higher offenses. State v. Clyde Kennedy, 169 N.C. 289, 84 S.E. 515; State v. Kendall, 143 N.C. 659-664, 57 S.E. 340; State v. White, 138 N.C. 704-715, 51 S.E. 44; State v. Foster, 130 N.C. 666-673, 41 S.E. 284, 89 Am. St. Rep. 876; State v. Jones, 79 N.C. 630; State v. Matthews, 148 Mo. 185, 49 S.W. 1085, 71 Am. St. Rep. 594; Baker v. People, 40 Mich. 411.

In Kendall's Case, supra, it was held:

"It is a principle very generally accepted that, on a charge of murder, if there is any evidence to be considered by the jury which tends to reduce the crime to manslaughter, the prisoner, by proper motion, is entitled to have this aspect of the case presented under a correct charge; and, if the charge given on this question is incorrect, such a mistake will constitute reversible error, even though the prisoner should be convicted of the graver crime, for it cannot be known whether, if the case had been presented to the jury under a correct charge, they might not have rendered the verdict for the lighter offense."

In Foster's Case, supra, the present Chief Justice, delivering the opinion, said:

"If it had been clearly explained to the jury what constituted murder in the second degree (of which, through his counsel, he had admitted himself to be guilty), it may be that the jury would have coincided with that view. But, in the absence of instruction on that offense, with only the issue of murder in the first degree placed before them, with instructions only as to that offense, with evidence of the homicide, it may well be that the jury held against the prisoner that he was guilty simply because not informed as to the constituent elements of the lesser offense."

And for this omission, a new trial was allowed, the prisoner having been convicted ed of murder in the first degree.

In State v. Jones, a conviction for the capital crime of murder, it was held error to exclude from the jury the view of manslaughter; there being evidence tending to establish such crime.

In the present case, there was no claim or suggestion of any previous animosity existent between the prisoner and the deceased, and the facts in evidence on the part of the state tended to show (the defendant offering no testimony) that the homicide occurred on August 31, 1915, in the city of Wilmington in the front room of the "Coca Cola plant" of A. B. Merritt, about 4 o'clock p. m.; that this plant consisted of house about 30 feet wide and 60 feet long, divided midway by a partition; that a door opened from the front to the back compartment, and a large door led into a back yard across which was a coal and wood plant operated by the same proprietor; that the defendant was a hand doing work in the woodyard when needed, but, on that afternoon, there was no work to be given him, and he was over in the Coca Cola apartment doing nothing and was sitting on a crate in the front compartment talking with one of the employés. So far as appears, he was there without objection, for the witness Parker, who seems to have had immediate charge, says that he had made no objection to the boy being there, and, while the proprietor testifies that "he had given Hudson authority," he does not say authority for what, and immediately adds:

"I had intended Parker to keep the boys away from the place, and had told Hudson to use his influence with Parker to keep them away."

The boy then was there without objection being made known to him and, while sitting down, as stated, talking to one of the hands, deceased, who drove a delivery wagon for the plant, came into the compartment and asked the defendant where his hitching rein was. Defendant replied, "It is my hitching rein." Hudson replied, "It's no such a damn thing," and, starting towards the boy, said: "You get out of here." The boy replied, "Mr. Hudson, you don't own this plant, and you have no right to put me out." Hudson, said to be a fine specimen of manhood, weighing 165 pounds, continued to advance, caught the boy, the defendant, and pushed or shoved him off the box, and, two of the witnesses say, struck him twice. The defendant, getting loose, ran into the back room, returned and got his hat, which had fallen off his head, went again into the back...