State v. Miller

• Decision Date: 25 September 1929
• Docket Number: 89.
• Parties: STATE v. MILLER.
• Court: North Carolina Supreme Court

149 S.E. 590

197 N.C. 445

STATE v. MILLER.

No. 89.

Supreme Court of North Carolina

September 25, 1929

Appeal from Superior Court, Bertie County; Clayton Moore, Special Judge.

Percy Miller was convicted of murder in the first degree, and he appeals. No error.

In prosecution for murder of officer by prisoner while resisting arrest, evidence held to sustain verdict of murder in first degree.

Criminal prosecution, tried upon an indictment charging the defendant with a capital felony, murder in the first degree.

Verdict Guilty of murder in the first degree.

Judgment Death by electrocution.

Defendant appeals, assigning errors.

Philip A. Escoffery, of Durham, for appellant.

D. G Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY C.J.

There is evidence on behalf of the state tending to show that on Sunday afternoon, February 10, 1929, the prisoner, Percy Miller, a colored man, shot and killed Patrick White, chief of police of the town of Windsor, Bertie county, while the latter, in the discharge of his duties as an officer, was attempting to arrest the prisoner or to prevent his forcible escape from custody. The defendant, on a number of occasions, sometimes when drinking and at others when sober, and once while at a still, had threatened to kill any officer who attempted to arrest him, and several times the deceased was singled out as the object of his threats: "The first time the s--o--b policeman (Patrick White) arrests me, I am going to kill him." And again: "If Sheriff White comes up here (to the still), I would shoot hell out of him." Dewey Smithwick, knowing that a warrant was out for the defendant, asked him "if they wouldn't get him if he went around town now." His reply was: "I would like to see anybody try to arrest me. I will kill the first s--o--b that does." These threats were communicated to the deceased. About eight or nine minutes before the homicide, the defendant was in the street, in front of Boone's Café, apparently under the influence of an intoxicant, with a pistol in his hand, flashing it around, saying that he wanted to kill somebody--some s--o--b. There were no eyewitnesses to the homicide, but from the number of shots heard, the prisoner and the chief of police were apparently engaged in a gun battle, in the middle of the street, when the fatal shot was fired. The deceased was shot in the heart and died instantly. His pistol was found four steps back of his body. A few minutes before the shooting, the officer was seen holding the defendant by the arm or shoulder, while the prisoner seemed be in a resisting position.

The prisoner, who testified that he was not drinking on the day in question, tendered a plea of murder in the second degree, but this was not accepted by the state. The appeal, therefore, presents the single question as to whether the evidence tending to show premeditation and deliberation is sufficient to warrant a verdict of murder in the first degree. We think it is. State v. McClure, 166 N.C. 321, 81 S.E. 458; State v. Durham, 141 N.C. 741, 53 S.E. 720, 5 L. R. A. (N. S.) 1016; State v. Kale, 124 N.C. 816, 32 S.E. 892.

That the prisoner had premeditated upon the killing, "thought of it beforehand," is amply shown from the threats made against the officer; and where one with a previously fixed purpose to kill, formed while sober, deliberately brings on a difficulty, or voluntarily intoxicates himself, in order to carry out his previously fixed design, and under such circumstances kills his intended victim, the law will not excuse him or mitigate his offense, but pronounces his crime murder in the first degree. State v. Benson, 183 N.C. 795, 111 S.E. 869; State v. Murphy, 157 N.C. 614, 72 S.E. 1075.

It is in evidence that the officer was within his rights in arresting or attempting to arrest the defendant. State v. Robinson, 188 N.C. 784, 125 S.E. 617. And it is the law of this jurisdiction that forcible resistance to the execution of legal warrants, or lawful arrests, will not be sanctioned. State v. Phillips, 119 Iowa, 652, 94 N.W. 229, 67 L. R. A. 292, and note.

Speaking to the subject in Holloway v. Moser, 193 N.C. 185 136 S.E. 375, 377, 50 A. L. R. 262, it was said: "As against those who defy its decrees and threaten violence to its officers, the law commands that its writs be executed, peaceably, if they can; forcibly, if they must. State v. Garrett, 60 N.C. 144, 84 Am. Dec. 359. An officer, in making an arrest or preventing an escape, either in case of felony or misdemeanor, may meet force with force, sufficient to overcome it, even to the taking of life, if necessary. State v. Dunning, 177 N.C. 559, 98 S.E. 530, 3 A....