State v. Miller

• Decision Date: 21 March 1923
• Docket Number: 210.
• Citation: 116 S.E. 416,185 N.C. 679
• Parties: STATE v. MILLER.
• Court: North Carolina Supreme Court

116 S.E. 416

185 N.C. 679

STATE v. MILLER.

No. 210.

Supreme Court of North Carolina

March 21, 1923

Appeal from Superior Court, Lenoir County; Calvert, Judge.

Jim Miller was convicted of murder in the first degree, and he appeals. Affirmed.

Under the rule that, when a killing by accused is established, he has the burden of proving that it was without malice or he is guilty of second degree murder, and that it was not unlawful or he is guilty of manslaughter, where accused offered no testimony, an instruction as to the presumption of malice and unlawfulness cannot be said to have allowed the jury to infer accused was not entitled to its benefit, being applied by the court to the facts and circumstances.

The prisoner was prosecuted for the murder of one John Sutton. The homicide occurred on September 29, 1922, about 7 p. m. The deceased, believing the prisoner had stolen corn from his field, got Arthur Sutton, his cousin, to take him in his car in pursuit of the prisoner, who was driving a one-horse wagon along the public highway in the direction of Kinston. The car soon overtook him, and the deceased went to the side of the wagon and asked the prisoner what he had in it. The answer was, "It is none of your business." The deceased then pushed back some hay that was in the wagon, laid his hands on some corn that had been underneath the hay, and asked the prisoner where he got it. The prisoner said "From Dary Williams," and the deceased replied "No, you got it out of my field." The deceased then directed Arthur Sutton to drive on to Kinston and get an officer. After Arthur left, the deceased got in the wagon with the prisoner and told him to go on. The deceased sat in the wagon at the left of the prisoner. After the car had gone, the prisoner, with the deceased by his side, went on towards Kinston. After going about 200 or 300 yards on the road, they got into the highway leading towards Kinston and went about 150 or 200 yards further when the prisoner drew a pistol from his pocket and fired four shots at the deceased. Three shots took effect, and death followed almost instantly. Soon afterwards the body of the deceased was found in the road. The deceased at the time had on overalls, and had no weapon about his person. When his body was examined by the coroner, a knife was found in the pocket of the deceased, but it was not open.

After the homicide, the prisoner escaped and was afterwards arrested in Baltimore, and brought back to Kinston for trial. Sheriff Taylor testified that the prisoner made a voluntary statement and admitted that he had shot and killed the deceased with a pistol. In this statement the prisoner said that, after the deceased got into his wagon, they engaged in an "argument" and that the deceased had his knife and "made a grab at him, and he shot him, and he fell off the wagon." He also said that the deceased "whacked him across the shoulder" and cut his shirt but not his flesh.

After the homicide was committed, the prisoner drove his wagon back of Duff Humphrey's house in the woods, where it was afterwards found. In the wagon there were about 18 gallons of whisky and a small quantity of corn.

The prisoner was convicted of murder in the first degree, and from the judgment and sentence of death, he appealed to the Supreme Court.

John R. Denton, of Kinston, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

The gravity of the judgment pronounced has called for a close and careful scrutiny of the entire record, to the end that the prisoner's exceptions be judicially determined and his legal rights fully protected. Such inspection we have endeavored to bestow, and have been unable to discover in the trial any error that will warrant referring the case to another jury or interfering with the judgment of the court.

The circumstances attending the homicide are free from complication. The prisoner was driving his wagon on the highway. He was overtaken or met by the deceased and charged with larceny. The deceased got in the wagon and took a seat on the left side of the prisoner. An "argument" followed, and the prisoner fired four shots in rapid succession, killing the deceased, whose body soon thereafter was found in the road. No novel question is presented, and no extended discussion is required.

Exceptions 1, 4, 5: The prisoner's objection to evidence tending to show the contents of the wagonbed--hay, whisky, and a little corn--is without merit. When the deceased and Arthur Sutton overtook or met the prisoner, the deceased displaced a part of the hay and found corn which he said had been stolen from his field. If evidence when offered is competent for any purpose, it should not be excluded; and here the evidence objected to was competent, not only on the question of the prisoner's motive in firing the fatal shots, but on the question of his premeditation and deliberation. It tended to disclose conditions, all of which were known to the prisoner and some of which were known to the deceased, during the time that intervened between their meeting and the commission of the homicide. State v. Goff, 117 N.C. 756, 23 S.E. 355; State v. Rose, 129 N.C. 575, 40 S.E. 83; State v. Wilcox, 132 N.C. 1143, 44 S.E. 625.

Exceptions 2, 3: Arthur Sutton testified that, after going in search of the officer, he returned to the scene of the homicide and examined the body of the deceased, not very closely, it is true, and found that he was not armed; and C. T. Savage testified that when he went there he found nothing. To the admission of these statements exceptions were entered of record. The prisoner told the sheriff that the deceased while in the wagon assaulted him with a knife--that the deceased "had his knife and made a grab at him and he shot him." He did not say the deceased had a pistol. The court was alert to permit the jury to consider any evidence of an assault upon the prisoner by the deceased with a knife, and instructed them in the law both of manslaughter and of self-defense. Since the prisoner did not pretend that the deceased had a pistol. in what way could the admitted evidence be prejudicial? In any event it was immaterial; and, as Chamberlayne pertinently remarks:

"Even where the higher court feels that error has been committed in admitting certain evidence, it will not, as a rule, find prejudice where the evidence admitted was entirely irrelevant, i. e., immaterial. It is obviously difficult to predicate prejudice upon the admission of irrelevant evidence entirely without probative effect." Modern Law of Ev. § 174.

And substantially the same proposition has been approved in our decisions time after time. Carter v. Railroad, 165 N.C. 249, 81 S.E. 321; Penland v. Barnard, 146 N.C. 379, 59 S.E. 1109; Hosiery Co. v. Cotton Mills, 140 N.C. 452, 53 S.E. 140.

Exceptions 7, 8: Exception was taken to his honor's definition of deliberation and premeditation which was...