State v. Mosley

• Decision Date: 23 March 1938
• Docket Number: 722.
• Parties: STATE v. MOSLEY.
• Court: North Carolina Supreme Court

195 S.E. 830

213 N.C. 304

STATE v. MOSLEY.

No. 722.

Supreme Court of North Carolina

March 23, 1938

Appeal from Superior Court, Forsyth County; W. F. Harding, Judge.

Henry Mosley was convicted of murder in the first degree, and he appeals.

New trial ordered.

BARNHILL J., dissenting.

Criminal prosecution tried upon indictment charging defendant with the murder of one Clarence Black.

The defendant pleaded not guilty, and relies upon self-defense.

The state offered evidence tending to show that: On the afternoon of Easter Monday, 1937, the defendant shot one Clarence Black with a pistol, inflicting a wound from which he died almost instantly. The scene of the shooting was on the north sidewalk of 8th street, between Ridge street on the west and Highland avenue on the east, in front of a beer parlor, in Winston-Salem. Defendant, on returning from Greenville, S C., near midnight on Sunday, found Clarence Black in defendant's home with his wife. Black came out the front door passing defendant and left. Between 8 and 9 o'clock the next morning defendant went to the home of Mary Perkins on E. 8th street, where he was accustomed to visit. While there, in conversation with Robert Martin, he said that he was worried, that when he came home the night before Clarence Black came out and ran; that on being asked what he was going to do about it, defendant said, "I don't know what I might do"; that on being advised to "just give it up and not do anything about it," he said, "That is true. I am going to see him and have a talk to him. If he talks like a man, I ain't going to do anything. If he talks to me like junk, I am going to kill him." Then in the afternoon between 3 and 4 o'clock, Clarence Black and four others were standing in front of the beer parlor, the scene of the shooting, two next to the building and Black and two others at edge of sidewalk. Defendant came from Highland avenue on to and walked west down 8th street in "a slow gait with his head kind of down," his hands in his front pocket, an overcoat thrown around his shoulders and his body coat "buttoned up." Defendant walked between the two groups and asked to speak to Clarence Black. They took two or three steps to the west and engaged in a conversation in a low tone, about Black going to defendant's house. Shurley Brown, only eyewitness for the state, detailed that part of conversation he says he heard. His testimony differs from statement of defendant, hereinafter referred to, mainly in that he says that immediately before the shooting defendant cursed Black, and said, "You boys get out of the way," and that at that time Black was standing with his right hand in his front pocket and a cigarette in his left.

R. N. Carroll, police officer, testified for the state that defendant came in to police headquarters Easter Monday night and gave up. At that time he made a statement to the officer which was reduced to writing and signed. The officer testified that defendant said in substance: After describing the incident at his home on Sunday night, the defendant said that he saw Clarence Black the next afternoon about 3 o'clock at the beer parlor on E. 8th street, near A. Ridge Alley; that he had his pistol in his pants pocket when he saw him; that he called to Black and told him he wanted to talk to him. They stepped off 10 or 12 feet from the beer parlor; that he asked Black why he did not leave his wife alone; that Black told him he had not been bothering his wife; that then Black cursed him using a vilely vulgar epithet; that Black put his hand in his bosom; that he shot him twice at a distance of 10 feet, and he fell. The written statement was introduced in corroboration. In it defendant stated: "I then asked him why he kept messing with my old lady. He then went to cursing me and called me a-and several other names, and said that he did not go with my old lady. Clarence then commenced to back off with his hand in his bosom. I had my pistol in my right pants pocket and my hand on it. I pulled my pistol when he was about 10 feet away. I shot him twice and he fell."

Defendant offered no evidence.

Verdict: Guilty. Case remanded at fall term 1937 for correction of record to speak the truth as to verdict. 212 N.C. 766, 194 S.E. 486. Correction made to read: "Guilty of murder in the first degree."

Judgment: Death by asphyxiation.

Phin Horton, Jr., John C. Wallace, and Richmond Rucker, all of Winston-Salem, for appellant.

A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.

WINBORNE Justice.

The court below was of opinion that the evidence was sufficient to justify and to require submitting to the jury defendant's plea of self-defense. With this we agree. However, exceptions to the charge of the court with respect thereto reveals prejudicial error.

The intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. When the implication is raised by an admission or proof of the fact of killing, the burden is on the defendant to show to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it. State v. Robinson, N.C., 195 S.E. 824, and cases cited.

"Where a man is without fault, and a murderous assault is made upon him-an assault with intent to kill-he is not required to retreat, but may stand his ground, and if he kill his assailant, and it is necessary to do so in order to save his own life or protect his person from great bodily harm, it is excusable homicide, and will be so held." Hoke, J., in State v. Blevins, 138 N.C. 668, 50 S.E. 763, 764. State v. Robinson, supra, and cases cited.

The plea of self-defense or excusable homicide rests upon necessity, real or apparent. In State v. Marshall, 208 N.C. 127, 179 S.E. 427, 428, the principle is clearly stated: "The pertinent decisions are to the effect:

1. That one may kill in defense of himself or his family, when necessary to prevent death or great bodily harm. State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Bost, 192 N.C. 1, 133 S.E. 176; State v. Johnson, 166 N.C. 392, 81 S.E. 941; State v. Gray, 162 N.C. 608, 77 S.E. 833, 45 L.R.A.,N.S., 71.

2. That one may kill in defense of himself, or his family, when not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. State v. Barrett, 132 N.C. 1005, 43 S.E. 832.

3. That the reasonableness of this belief or apprehension must be judged by the facts and circumstances as they appeared to the party charged at the time of the killing. State v. Blackwell, 162 N.C. 672, 78 S.E. 316.

4. That the jury, and not the party charged, is to determine the reasonableness of the belief or apprehension upon which he acted. State v. Nash, 88 N.C. 618."

In State v. Cox, 153 N.C. 638, 69 S.E. 419, 421, it is said: "In order...