State v. Pasour

• Citation: 111 S.E. 779,183 N.C. 793
• Decision Date: 03 March 1922
• Docket Number: 436.
• Parties: STATE v. PASOUR.
• Court: United States State Supreme Court of North Carolina

111 S.E. 779

183 N.C. 793

STATE v. PASOUR.

No. 436.

Supreme Court of North Carolina

March 3, 1922

Appeal from Superior Court, Gaston County; Ray, Judge.

Joe Pasour was convicted of second degree murder, and he appeals. No error.

The indictment charged the defendant with the murder of Eli Pasour, his father. The state prosecuted only for murder in the second degree or manslaughter. The jury returned a verdict for murder in the second degree, and, from the judgment pronounced, the defendant appealed.

The defendant admitted that he shot and killed the deceased with a pistol, and introduced evidence tending to show self-defense.

In a prosecution for murder, testimony concerning statements made by defendant's brother relative to certain marks or scratches on the body of the deceased, was competent in contradiction and impeachment of the brother's preceding testimony.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

Both before and after he had introduced evidence, the defendant moved to dismiss the prosecution as in case of nonsuit, and duly excepted to the court's denial of his motion. The exceptions therefore require a consideration of the entire evidence. C. S. § 4643; State v. Killiam, 173 N.C 792, 92 S.E. 499. The defendant admitted that he fired the fatal shot, but testified that he acted in self-defense. The intentional killing of a human being with a deadly weapon implies malice and, nothing else appearing, constitutes murder in the second degree. When this 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 excuse the homicide or to reduce it to manslaughter. State v. Capps, 134 N.C. 627, 46 S.E. 730; State v. Barrett, 132 N.C 1005, 43 S.E. 832; State v. Quick, 150 N.C. 820, 64 S.E. 168; State v. Yates, 155 N.C. 450, 71 S.E. 317; State v. Orr, 175 N.C. 773, 94 S.E. 721; State v. Brinkley, 183 N.C. 720, 110 S.E. 783. For these reasons the defendant's own testimony necessarily forestalled his motion to dismiss the action.

A witness for the state was permitted to testify, over the defendant's objection, concerning statements made by the defendant's brother, Morris Pasour, relative to certain marks or "scratches" on the body of the deceased. The defendant's exception which was duly entered, is without merit. The evidence...