State v. Moore
| Decision Date | 30 June 1873 |
| Citation | 69 N.C. 267 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. CHAS. MOORE and MARY MOORE. |
The question of “cooling time,” is a question of law to be decided by the Court, and not a question for the jury.
If such a question be left to the jury, and they decided it as the Court should have decided it, this error is no cause for a new trial.
The separation of two persons engaged in fist-fight, which eventually terminates in a homocide, to jusiify a verdict of murder, must be for a time sufficient for the passions excited by the fight to have subsided, and reason to have resumed its sway. Hence, Where one witness testified that the prisoner was “absent no time,” and another, that after the first fight he started to go home, and looking back the parties were again fighting: Held, There was not such sufficient cooling time as to justify a verdict of murder.
INDICTMENT for murder, tried before Logan, J., at Spring Term, 1873, of the Superior Court of MECKLENBURG county.
Prisoners were indicted for the murder of one Robert Smith, and having severed in their trial, Charles Moore was tried and convicted.
It was contended for the prisoner that the crime committed was manslaughter. The evidence for the State was substantially as follows:
Sarah Ann Davidson testified, that she lived a short distance from the prisoner on the same side of the alley; the prisoner lived on the opposite side of the alley, and opposite the house of the witness. When the fight took place witness was opposite prisoner's house, and the deceased was going along the street towards the house, and when opposite the gate the prisoner said, “Who is that?” Deceased answered, “It is me.” Prisoner said, “What do you want?” Deceased replied, “I dont't want you, but want to see Mary (living with prisoner as his wife). Prisoner then said, “You were listening to my conversation.” Deceased replied, “That he was doing no such thing.” Prisoner replied, “You are a damn'd liar;” to which deceased said, “You are an infernal liar.” Curses followed. Deceased was in the street, and said to prisoner, “If you come out and curse me I will hit you.” Prisoner went out, he and deceased continued to quarrel, prisoner alleging that the deceased was eaves-dropping, and deceased denying it all the while; then they both went together fighting; were not long engaged in a fight when they stopped; prisoner's so-called wife called him into the house; he went in, but remained (in the language of the witness), “absent but no time.” Deceased was still in the street; witness walked off; heard deceased say that prisoner had killed him; the parties were still close together; deceased then went home; he was stabbed in the left side; it was about 8 o'clock, P. M., and cloudy; witness saw no knife; deceased and prisoner were not friendly; they did not visit.
On her cross-examination the witness testified: At first the parties did not appear mad; witness heard all the talk; they made considerable fuss; heard prisoner say to deceased, “I will report you to the Mayor.”
Jane Smith, a daughter of deceased, testified that when she went out they were fighting, she tried to get deceased home; went between them and tried to separate them; deceased walked off; prisoner said, “If you hit me again I will sicken you;” Mary Moore, prisoner's wife, said, “Let them fight,” and pushed the prisoner to deceased and they went together fighting; deceased jumped away, and said, “Charley has killed me;” deceased went home and fell in the door; he was stabbed in the left side and lived an hour and a half.
Other witnesses were examined for the prosecution, but no new facts were elicited. The prisoner offered no evidence, but through his counsel asked his Honor to charge the jury:
That if the jury are satisfied that the parties upon a sudden quarrel got into a fist-fight, and the prisoner before separation gave the fatal stab, it would be manslaughter.
That a mutual combat with fists is a legal provocation, and reduces a slaying by a deadly weapon (not shown to be unusual), to manslaughter.
That the evidence discloses that there was not sufficient “ cooling time,” between the fights.
Other instructions were asked, but as the case in this Court turned upon the last, they are not necessary to an understanding of the decision.
In answer to the last instructions his Honor charged the jury that if parties engage in any affray, or there is other legal provocation, and they...
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State v. Merrick
...courts, and only the existence or non-existence of the facts controlling its application in a given case is for the jury. State v. Moore, 69 N. C. 267. These being the positions appertaining to the crime of manslaughter and more directly relevant to the question presented, it has been held ......
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State v. Merrick
...for the courts, and only the existence or non-existence of the facts controlling its application in a given case is for the jury. State v. Moore, 69 N.C. 267. being the positions appertaining to the crime of manslaughter and more directly relevant to the question presented, it has been held......
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Ross v. State
... ... Fahnestock v. State, 23 Ind ... 263. The true rule, upon reason and authority, is that there ... can possibly be no premeditation save in case there has been ... time for passion to cool and reason to regain control ... McCann v. People, 5 Cr. Def., 1089; State v ... Moore, 5 Cr. Def., 1107 (69 N.C. 267); Rogers v ... People, 15 How. Pr., 558; People v. Johnson, 1 Park ... Cr. Rep., 219; People v. Clark, 7 N.Y. 385; ... Horrigan & T. Cas. Self Def., 199; Whart. on Homicide, 35; ... Whart. Cr. Law, 922. And as showing that the degree of ... homicide does ... ...
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State v. Collins
...minutes may be sufficient for passion to subside and reason to resume its sway. State v. Norris, 2 N. C. 495 (430), 1 Am. Dec. 564; State v. Moore, supra; State v. Savage, 78 N.C. 520; State Williams, 141 N.C. 827, 53 S.E. 823. In State v. Merrick, supra, the question of cooling time fixed ......