State v. Miller
| Decision Date | 04 April 1893 |
| Citation | 17 S.E. 167,112 N.C. 878 |
| Parties | STATE v. MILLER. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Iredell county; Boykin, Judge.
William S. Miller was indicted for murder. From a conviction, he appeals. Reversed.
Where the whole evidence, taken in its most unfavorable aspect to defendant, shows the killing to be only manslaughter, it is error to refuse an instruction that defendant is not guilty of murder, though the state, at one of the earlier stages of the trial, may have made out a prima facie case of murder.
R. Z Linney, for appellant.
The Attorney General, for the State.
The court was asked to instruct the jury, in substance, that in the most unfavorable aspect of the testimony for the defense the prisoner was not guilty of murder. In refusing this request we think there was error which entitles the prisoner to a new trial. The attorney general contends that upon the admission that the killing was done by the prisoner with a pocketknife, which was a deadly weapon, the state having shown prima facie that the prisoner was guilty of murder, and shifted the burden of proof upon him, it was not the province of the judge in any event to tell the jury that they were not at liberty to find him guilty of murder, no matter what were the subsequent developments of the testimony, but that the jury should have been left with appropriate instructions as to the law, to determine upon a consideration of the whole of the evidence whether the killing was done under such provocation as would mitigate it to manslaughter or justify or excuse it.
Collating from the testimony of the various witnesses that most prejudicial to the prisoner, and putting the whole into a connected narrative, it would present about the following state of facts: The prisoner was returning in a cart, with the witness C.J. Yount, from Sharon Church, when they overtook at the cross roads the witnesses George Douglass and Will Stewart, and, after the four had been engaged in conversation three or four minutes, the deceased, Jack Wilfong, came up on horseback in a fast gallop or rack, and passed to a point about 27 feet beyond the cart in which the prisoner and beyond the cart in which the prisoner and Yount were sitting, when he jumped off his horse. Deceased had "whooped" or yelled twice very loud as he approached them, and as he jumped from his horse, he said either, "I'm a son of a bitch, and I'm loose," or, according to other witnesses, "You are a son of a bitch," (his horse having dodged as he came up,) whereupon the prisoner, Miller, getting out of the cart and taking a position at the shaft, replied, "Don't call me a son of a bitch," or "You had better not call me a son of a bitch." Wilfong then threw off his coat and came down to the wheel of the cart. Douglass said to Miller, as deceased was coming down, "He was talking to his horse." C.J. Yount, who was in the cart, said "Jack, were you talking to your horse?" Wilfong said, "Yes." Miller again said, "You had better not call me a son of a bitch." Miller repeated this language several times. When this was said, both were at the cart; Miller near the shaft, and Wilfong at the wheel. Wilfong then said: Miller said he had no pistol. Wilfong said, Miller said he did not. Wilfong said "You are a God damn liar if you say you have not." Wilfong then went towards Miller, saying, "You are a God damn liar if you say you have no pistol or razor." Wilfong advanced on the prisoner as he said this, and prisoner retreated, walking backward, until the deceased overtook and knocked or pushed him down. As Miller was backing, the deceased was saying, Miller, as he was backing, said in reply "Jack, I am your friend," or according to another witness for the state: Deceased said, The witness Stewart, who walked off as Wilfong began to advance, testified that Miller's hand was then open, and that he had no knife in it then. According to the testimony of the third eyewitness of the encounter, who was examined for the state, deceased said, on first approaching the cart: and stated towards Miller, saying, as stated by the other witnesses, "You have a pistol or a razor," and that Miller said then, and was backing when he said it. The only one of the three witnesses present who testified at all as to the matter stated that as Miller backed he had his hands at his side. All the witnesses testified that deceased knocked or threw prisoner down, and then the sound of licks was heard in rapid succession, until the witness Stewart pulled deceased off Miller, and found that he was cut and bleeding. The deceased struck the prisoner a number of blows with both hands, and both seemed to be striking at each other while on the ground. Deceased was carried to the house of Douglass near by. A witness then looked and saw Miller at the cart. He said he had no pistol or razor, and the witness found in his vest pocket a small knife, and in the pocket of his pants a larger one. Miller said he was not hurt badly, but was wiping his face with his handkerchief. According to all of the witnesses deceased was a very powerful man, larger than the prisoner, and, when drinking, was considered violent and dangerous. Both deceased and prisoner had been drinking on that night. It was in evidence that a physician examined prisoner afterwards, on the next day, and saw no external bruises or injury on his face. The deceased was slightly stabbed in the left cheek, and cut to the bone on the left side of the chin. His clothing cut, and the skin grazed on the left shoulder. His index finger was cut as if by catching the knife, and having it drawn through the hand. The fatal wound was on the right arm, the knife having been...
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