State v. Merrill

• Citation: 13 N.C. 269
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1829
• Parties: STATE v. JOHN MERRILL.

13 N.C. 269

STATE

v.JOHN MERRILL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1829

FROM IREDELL.

1. Provoking language does not justify a blow, and if an instrument calculated to produce death be used, the slayer is guilty of murder.

2. Malice is presumed from the nature of the instrument and from the want of a legal provocation, and it is a matter of indifference whether the temper of the prisoner be mild or violent.

3. But as the State has no right to inquire into the temper of the prisoner unless it be put in issue by him, where proof was received of the prisoner's violent temper, it was held, per HENDERSON and HALL, that as this question may have affected the verdict, a new trial should be granted.

4. But RUFFIN, dissentiente, held that as the evidence, although improper, could not vary the result, it was useless to disturb the verdict.

The prisoner was charged with the murder of one Hoover, and on the trial before MARTIN, J., it appeared that the deceased had hired the prisoner to attend a still; that the prisoner had been drinking, and while under the influence of liquor was accused by the deceased of having stolen some cider; that the prisoner, upon this provocation, had seized

a weapon calculated to produce death, and with it had given the deceased a mortal blow. The counsel for the prisoner introduced witnesses who deposed that he, the prisoner, was a very weak man, but not insane. The prosecuting officer proposed to ask if he was not a man of violent temper; this question was objected to, but the objection was overruled by his Honor, upon the ground that it was competent for the State to prove the temper of the prisoner after he had offered evidence as to his understanding. The witnesses were directed to speak of their own knowledge, and not of the general character of the prisoner. It was then proved that the prisoner was of a violent temper.

His Honor informed the jury that malice aforethough was an indispensable ingredient to the crime of murder; that it meant awicked, depraved and diabolical temper, moving the party either deliberately to kill his fellow, or to kill without a legal provocation. That in cases where the prisoner had a right to use force, as in that of a parent correcting his child, the exact degree of force necessary to attain the object in view was not measured with golden scales, but that the like reason did not apply to the present case, as the prisoner had no right to use any degree of force. That if they believed the prisoner was moved to perpetrate the homicide by the provoking language of the deceased he was guilty of murder.

The prisoner was found guilty of murder, and judgment of death being awarded, he appealed to this Court.

HALL, J. It cannot well be denied that the circumstances attending the homicide set forth in this record, legally speaking, constitute a case of murder; and if so, it is contended with much strength of argument that the testimony offered in relation to the prisoner's violent temper ought not to influence the decision of the case, because if it had been proved that he possessed a mild and peaceable disposition it would still be a case of murder. I am not disposed to controvert this proposition. But in the consideration of this case it must be kept in view that by the Constitution of the State it is declared that no •freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, delivered in open Court.

Now if it could be reduced to a moral certainty that juries could and would at all times, in the discharge of their duties, strictly adhere to the law which defines murder the reasoning would be unanswerable. But, from the nature of things, this is not to be expected. It is the nature of man to lean in favor of an unfortunate criminal when he is

surrounded with a good character. Our feelings are too often indulged at the expense of the understanding, whether friendship or hatred be the food they feed upon. It is, therefore, of much importance that the rules of evidence should be strictly adhered to—one of which is that evidence of the prisoner's general character shall not, against his consent, and at the instance of the prosecutor, be given in evidence against him unless the nature of the charge renders it necessary. This, however, is not that case.

I am pretty well persuaded that it was not the object of the Judge to impugn this rule. The question, which I think a departure from it, was put upon the heels of one which was asked by the prisoner's counsel, which was intended to establish the fact that the prisoner, on account of weakness of mind, was not altogether an accountable being. The question asked respecting the violence of his temper related more to the qualities of the heart and the nature of disposition. I amof...