State v. Moore
| Decision Date | 14 March 1923 |
| Docket Number | 140. |
| Citation | 116 S.E. 161,185 N.C. 637 |
| Parties | STATE v. MOORE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Grady, Judge.
Julius Moore was convicted of murder in the second degree, and he appeals. New trial ordered.
Where defendant killed deceased in an altercation which occurred at a dance held in a warehouse belonging to defendant's employer, and the court properly charged that defendant could not rely on perfect self-defense if he was at fault in provoking the difficulty, evidence on defendant's behalf that he was employed as a watchman, and that the brother of the owner had told defendant to keep down all disorder, was admissible as tending to negative malice and as presenting defendant's claim that in approaching the people engaged in a quarrel and asking them to desist, he had reasonable ground to believe he was acting within the range of his duties.
The state did not insist on a conviction of murder in the first degree, and "defendant was put on trial for murder in the second degree, or manslaughter." There was conviction of murder in the second degree, and from judgment on the verdict defendant excepted and appealed, assigning errors.
Albion Dunn, of Greenville, for appellant.
J. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
There was evidence on the part of the state tending to show that on the night of December 24, 1920, there was a dance for colored people in the warehouse of J. N. Gorman in said county attended by deceased, and the prisoner, and others; that about 8:30 p. m., there was a fuss going on between Rosa Davis and her husband, and during this altercation the deceased and the prisoner became also involved in a quarrel and prisoner shot and killed the deceased; that fatal shot was fired when the deceased was down and helpless or just as he was rising up, and the killing was without any adequate provocation or legal excuse.
There was evidence for defendant tending to show: That he was an employee of Mr. J. N. Gorman, who had let them have the warehouse for the dance. That, hearing the quarrel between Davis and his wife over near the piano, defendant went over and spoke to the persons there with the view of quieting the fuss. That Mr. Gorman had the side doors of the warehouse fastened and James Grimes, who is said to have started the row, and his brother-in-law, Arthur Marshburn, and principal witness for the state, asked to get out by the side doors. That defendant told them they would have to go out by the front door. That Grimes took offense at witness' speech and asked what in the hell he had to do with it, and said And Marshburn, the brother-in-law, said: "Rush him, James, and cut his damn throat." That James came on defendant with a knife, and that defendant backed away as much as 70 or 75 feet and shot once into the floor in front of deceased in the hope of stopping him. He coming on, deceased and defendant came together and both fell. That defendant jumped loose from deceased and was cut on the finger with the knife, and as he came on again, defendant shot and killed deceased, and that it was necessary to do it to save himself. That the pistol used was one belonging to the warehouse, and had been given to defendant by Mr. Gorman something like half an hour before the homicide.
In the course of defendant's evidence, he was asked as to what were his duties as employee of Mr. Gorman. On objection, the...
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