State v. Quick
| Decision Date | 01 April 1909 |
| Citation | 64 S.E. 168,150 N.C. 820 |
| Parties | STATE v. QUICK. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Richmond County; Long, Judge.
Cary Quick was convicted of manslaughter, and he appeals. Affirmed.
A witness who has testified as to the character of accused may be asked on cross-examination for the purpose of testing the witness' conception of good character, and not to prove bad character by affirmative evidence of specific acts whether a person who carries a concealed weapon and drinks whisky in a barroom on Sunday is considered a man of good character.
Morrison & Whitlock, A. S. Dockery, John P. Cameron, and W. M. Kelly for appellant.
Attorney General Bickett, for the State.
The defendant was tried for murder in the second degree and convicted of manslaughter. It appears from the evidence set out in the record that this defendant, with Lone Knight, Ebb Quick, and Lauder Quick, had an altercation with Jule Combs at the latter's saloon in Richmond county, over the price of a pint of gin. There were several pistol shots fired, and Combs was wounded and in consequence thereof died.
1. The defendant excepts to the ruling of the court below admitting the dying declarations of the deceased. There can be no question that the declarations are pertinent and material, as they tend to prove that all the defendants were participants in an unjustifiable assault upon the deceased at the time he was shot. The wife of the deceased testified concerning her husband's condition: On cross-examination witness stated that her husband The deceased was shot about 6 or 7 o'clock p. m., on Sunday November 11, 1906, and died at 12 o'clock that night. Under our precedents we think it was proper to admit the declarations of the deceased as dying declarations. State v. Pearce, 46 N.C. 251; State v. Whitt, 113 N.C. 716, 18 S.E. 715.
2. Witness Adams for defendant testified that his general character is good. On cross-examination by the solicitor the court permitted the following question: "Witness is asked if he thinks that a man who would visit a barroom on Sunday afternoon, carrying concealed on his person a pistol, and remain at the barroom drinking whisky, etc., would entitle such a person to be considered a man of good character." We see no objection to the question. The evident purpose was to test the witness' conception of what constituted good character and not to prove a bad character by affirmative evidence of specific acts. Assuming that it was objectionable in form, it was harmless, as the defendant had already testified as a witness in his own behalf, and admitted the very facts embodied in the inquiry.
3. The defendant excepts to the instructions of the court placing the burden of proof upon the defendant to justify the killing of the deceased, contending that the burden of the issue never shifts from the state to satisfy the jury, beyond a reasonable doubt, upon the entire evidence in the case, of the defendant's guilt. For this position the learned counsel cite Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562, and Board Education v. Makeley, 139 N.C. 31, 51 S.E. 784, and insist that the rule upheld in those cases is applicable here. We do not think those precedents have any application in an indictment for homicide. The position of counsel is one of the propositions laid down by Judge Wilde in his dissenting opinion in the well-known case of Commonwealth v. York, 9 Metc. 93, 43 Am. Dec. 373, and was taken by counsel before this court, in State v. Willis, 63 N.C. 26. But the proposition was repudiated in that case, and the doctrine reiterated that in all indictments for homicide, where the intentional killing is established, or admitted, the law presumes malice from the use of a deadly weapon, and the defendant is guilty of murder (now in second degree), unless he can satisfy the jury of the truth of facts which justify his act or mitigate it to manslaughter. The burden is on the defendant to establish such facts to the satisfaction of the jury, unless they arise out of the evidence against him. This rule has been uniformly adhered to by this court in indictments for homicide, and it was reiterated in the recent case of State v. Worley, 141 N.C. 764, 53 S.E. 128, where the cases are cited. The defendant, Cary Quick, was examined in his own behalf, and not only admits the intentional killing, averring that he did it in self-defense, but states that be fired at the deceased four times. His honor's ruling was in accord with the unvarying precedents in this state, which have ever followed the common law. 1 East, P. C. 279. The exception cannot be sustained.
4. The defendant contends that the court erred in instructing the jury "that, if the jury found there was a mutual affray between deceased and Cary, into which they both willingly entered, and during the progress of the fight Cary shot and killed deceased in the transport of passion aroused by the fight, but without malice, it would be no more than manslaughter; but, if Cary had satisfied the jury that he was without fault in entering the fight, and that he fired the fatal shot in self-defense agreeably to the principles governing this defense set out hereafter to acquit him." We see nothing in this instruction of which the defendant can reasonably complain. The charge of the court is very full and presented clearly and fairly to the jury the defendant's plea of self-defense and the evidence in support of it. Suppose the court erroneously submitted to the jury a view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the state, and not to him. His plea of self-defense had been fully and fairly presented to the jury, and rejected by them as untrue. What then was the duty of the jury, if there was no evidence of...
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