State v. Pollard
| Decision Date | 14 October 1914 |
| Docket Number | 153. |
| Citation | 83 S.E. 167 |
| Parties | L.R.A. 1915B,529, 168 N.C. 116 v. POLLARD. STATE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Daniels, Judge.
S. M Pollard was convicted of manslaughter, and he appeals. Reversed, and new trial granted.
Instruction hypothesizing facts showing a right to self-defense, and also that accused was willing to enter into the fight with deadly weapons and immediately drew his pistol, and charging that such facts would make accused guilty of manslaughter held erroneous.
Manning & Kitchin, of Raleigh, Harry Skinner, Jarvis & Wooten, and Julius Brown, all of Greenville, L. G. Cooper, of Henderson and F. G. James & Son, Moore & Long, and N.W. Outlaw, all of Greenville, for appellant.
Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.
The prisoner was indicted in the court below for the murder of T H. Smith, and convicted of manslaughter. Sentence having been pronounced, he appealed to this court. The deceased was chief of police at Farmville, N. C., and was shot by the prisoner at the latter's store in Farmville, on January 17, 1914, it being Saturday night. There was evidence tending to show that there had been some ill feeling between the two men, on account of the fact that the deceased had been watching the prisoner's place of business and had threatened to prosecute him for gambling on his premises and selling liquor, and that deceased was very angry with and had threatened to kill the prisoner. They had an altercation the Saturday night of the week before the homicide was committed. It was shown that the deceased was a man of violent temper and dangerous, to the knowledge of the prisoner. On the night of the homicide, the deceased entered the prisoner's store and was ordered out, prisoner saying to him, "I have told you to keep out of my place of business, and I wish you would get out." In order to better understand the occurrences at the time of the shooting, it is well to give a brief description of the drug store. The store stands on the corner of the street, and the entrance to the store is at the corner. On the left as one enters there is a row of show cases; then in front of the door near the wall there is another row of show cases, on one of which stands the soda fountain and on the other stands the cigar case, with a space of about two feet between the two; then near the wall parallel to the first row of show cases is the third row of show cases. Smith entered the store at the door and walked first where some young men were punching a punch board near the soda fountain; one of them asked him to take a punch, and he said, "No, I am not taking any chances to-night," and then turned and walked in the direction of the third row of show cases. When Smith entered the store, defendant was standing behind his counter near the soda fountain, where the young men were punching; about this instant some customer called for a package of cigarettes, and defendant walked down behind the counter to the cigar case to wait on the customer. While defendant was standing behind the cigar case, Smith walked from the door up to within six or seven feet of where defendant was standing. Defendant said to Smith, "I have told you to keep out of my place of business, and I wish you would get out." Smith replied, "I am not going anywhere, you damn son of a bitch," and then threw his right hand to his right hip, putting his left foot a little forward. This position placed Smith partly facing and partly sidewise to the defendant. When defendant saw Smith throw his right hand to his hip pocket, he fired the fatal shot, believing, as he says, that his own life was in danger. When defendant fired, Smith was near enough to him to reach out his left hand and catch hold of the pistol in defendant's hand. A struggle then ensued for the possession of the pistol, and while the struggle was going on, the second shot was fired, which went in the floor behind the counter, defendant remaining all the time behind the same. When Smith entered the store, he had his hands in his pants pocket, so nearly all the witnesses say, but he had his right hand out of his breeches pocket just before the shooting took place, according to those who were looking at him at the time. This was the defendant's contention, as stated in his brief. The prisoner introduced testimony to show that he acted strictly in self-defense and for the protection of himself against a threatened assault by Smith, which would have endangered his life. Smith had two pistols; one in his right overcoat pocket, and the other in his left hip pocket. As he was being taken from the store after the shooting, he fired at the prisoner with one of these pistols, but did not hit him. The prisoner contended, and offered proof to show, that just before he fired the fatal shot Smith had placed himself in a hostile and menacing attitude, which at once inspired him with the fear or apprehension that he was about to attack him with one of his pistols, and for this reason he shot him, knowing his violent character, and that he had threatened to kill the prisoner. There was a vast deal of evidence bearing more or less upon the pivotal question whether the prisoner fired in self-defense or because of his animosity toward Smith, or whether he entered into the altercation willingly. The state contended that the pistol was fired by the prisoner without any legal provocation, though the solicitor announced that he would not prosecute him for murder in the first degree, and that the prisoner was, at least, guilty of manslaughter, as he entered into the fight willingly.
This brings us to an instruction of the court, which we think was erroneous and entitles the prisoner to a new trial. It is this:
"If you should find from the evidence that the defendant, Pollard, saw the deceased Smith when he came in the store, and saw that his face was red and that he appeared to be mad, and that he, defendant, then walked from the position he occupied to the cigar case to wait upon a customer, and that the deceased saw the defendant there and approached him and came in about six or seven feet from him, and the defendant told deceased to get out, and the deceased replied, 'I am not going anywhere, you damn son of a bitch,' and turned and carried his right hand to his hip pocket, and the defendant believed the deceased was about to draw his pistol for the purpose of assaulting the defendant with it, and that the defendant was willing to enter into a fight with the deceased with deadly weapons, and immediately drew his pistol and shot and killed the deceased, defendant would be guilty of manslaughter, and this would be so if the manner and appearance of deceased were such as to cause defendant to believe that Smith was armed with deadly weapons, and that he was about to harm him with them."
It will be seen, at a glance, that the learned presiding judge has blended the doctrine of self-defense and that of manslaughter in one instruction, without proper discrimination between the two, and he used an expression which was manifestly calculated, though of course not intended, to mislead the jury as to the true nature of manslaughter, and to produce confusion in their minds. Every man who is induced to act in his self-defense by reason of a threatened and deadly attack upon himself, in a sense, and a very genuine sense, is willing to enter into the fight, for every man may fairly be supposed to be willing to defend his life and limb against one who threatens either by a demonstration of force. What his honor intended to say, we assume, was this: That if the prisoner justifiably fought upon a principle of self-defense, they should acquit, for he had said this before in his charge, but if he did not and entered into the fight willingly, but with legal provocation, he would be guilty of manslaughter. This he did not say. The very same kind of instruction, now under consideration, was given by the court in State v. William Baldwin, 155 N.C. 494, 71 S.E. 212, Ann. Cas. 1912C, 479, and met then with our condemnation. In that case, Justice Hoke said, with reference to it:
The judge charged:
If he had fought willingly, and with legal provocation, which was not sufficient, though, to acquit or to reduce his assault to self-defense, he would still be guilty of...
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