State v. Pollard

• Decision Date: 14 October 1914
• Docket Number: (No. 153.)
• Citation: 83 S.E. 167,168 N.C. 116
• Parties: STATE. v. POLLARD.
• Court: North Carolina Supreme Court

83 S.E. 167

168 N.C. 116

STATE.

v.POLLARD.

(No. 153.)

Supreme Court of North Carolina.

Oct. 14, 1914.

1. Homicide (§ 300^*)—Instructions— SelfDefense — Entering into Eight Willingly.

Where, on a trial for homicide, there was evidence that accused had been informed of a deadly threat against him by deceased, and had also heard of deceased's violent temper, that by his threatening attitude when he approached accused just prior to the killing he had determined to execute his threats, and that such was the impression reasonably made upon accused by his conduct, it was error to charge that if accused saw deceased when he came into accused's store, and that he appeared mad, and if deceased approached accused and was told to get out and refused to do so, calling accused an offensive name, and turned and carried his right hand to his hip pocket, and if accused believed he was about to draw his pistol to assault him, and if accused was willing to enter into a fight with the deceased with deadly weapons, and immediately drew his pistol and killed deceased he would be guilty of manslaughter, though the manner of deceased were such as to cause accused to believe that deceased was armed with deadly weapons, and that he was about to harm him with them, since a person may be willing to defend his life, and entering into a fight willingly does not defeat the right to exercise self-defense if the party fights exclusively in his own defense and employs no excessive force.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]

2. Homicide (§ 116*)—Self-Defense—Acting upon Appearances.

A party claiming to have killed another in self-defense is entitled to have the jury judge his conduct by the circumstances as they reasonably appeared to him at the time of the homicide, as it is the reasonable apprehension of danger by him to be found by the jury that excuses his act.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*]

3. Homicide (§ 109*)—Self-Defense—Effect of Previous Malice.

That accused, who was suspected by deceased, a chief of police, of illegally selling liquor and gambling, harbored malice towards deceased because of real or imagined persecutions did not deprive him of his right to defend himself against a dangerous assault by deceased.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 13S, 139; Dec. Dig. § 109.*]

4. Homicide (§ 116*) — Self-Defense — Necessity of Waiting for Hostile Act.

A person before exercising the right of self-defense is not bound to wait for his adversary to execute his threats or put himself in a condition to do so, if he has reason to believe that it is his adversary's intention to slay him or do him great bodily harm.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*]

5. Criminal Law (§ 673*) — Instructions — Evidence Admitted for Limited Purposes.

Where evidence admitted in a criminal case, though competent when confined to its proper limits, was calculated to prejudice accused by an improper use of it by the jury, the jury should have been carefully instructed as to its legitimate bearing on the case, and strictly cautioned not to be influenced by it, except in so far as it was relevant to the issue.

[Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.*]

Clark, C. J., dissenting.

Appeal from Superior Court, Pitt County; Daniels, Judge.

S. M. Pollard was convicted of manslaughter, and he appeals. Reversed, and new trial granted.

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 Biekett and T. II. Calvert, Asst. Atty. Gen., for the State.

WALKER, J. 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 policeat 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 side wise 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 sec ond 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...