State v. Robinson
| Decision Date | 19 December 1924 |
| Docket Number | 579. |
| Citation | 125 S.E. 617,188 N.C. 784 |
| Parties | STATE v. ROBINSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Ray, Judge.
David Robinson was convicted of murder, and he appeals. New trial ordered.
Criminal prosecution, tried upon an indictment charging the defendant with murder in the first degree, a capital felony. Upon the call of the case for trial, the solicitor announced that he would not ask for a verdict of murder in the first degree but that he would ask for a verdict of murder in the second degree or manslaughter, as the evidence might disclose. The jury found the defendant guilty of murder in the second degree, and from the judgment pronounced thereon, he appeals.
Where defendant kills another with a deadly weapon, killing is presumed to be unlawful, and that it was done with malice and defendant then has burden of showing the legal provocation which will rob crime of malice and thus reduce it to manslaughter, or which will excuse it altogether on grounds of self-defense or excusable homicide.
Morgan & Ward and Alley & Alley, all of Waynesville, for appellant.
J. S Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
The defendant, town constable of the village of Hazelwood, in Haywood county, shot and killed Will Fletcher, a colored man employed on a work train of the Southern Railway Company, while undertaking to arrest the deceased for jumping on and off a moving train in violation of a town ordinance prohibiting such conduct. It was in evidence that the deceased had habitually violated this ordinance by getting on a passenger train as it would leave the station at Hazelwood, riding some distance, and then jumping off near a shanty car in which Fletcher and other employees were housed and which stood on a siding near where they worked.
On Easter Sunday, 1924, the defendant saw the deceased "swinging on the train." He went down to the shanty car, without any warrant for his arrest, and said to Fletcher, "Let's go see the mayor." Fletcher asked, "What for?" Defendant answered, "For catching the train." Fletcher said, "I can't go until the boss man comes back from Asheville." Defendant replied, "You will have to go now." Then Fletcher asked the officer to let him go into the shanty car and get his coat. A few minutes after entering the car, Fletcher came to the door and said: "I can't go now; the boss man ain't here." The defendant replied, "You will go," and as he started to enter the car, Fletcher fired one time with a revolver, the bullet entering the door facing just above the officer's head. The defendant shot four times in return, one shot striking Fletcher in the face and proving fatal.
Whether the defendant was justified in undertaking to arrest Fletcher without a warrant should be determined in accordance with the rules laid down in State v. Rogers, 166 N.C. 388, 81 S.E. 999, and State v. McClure, 166 N.C. 321, 81 S.E. 458. See, also, C. S. § 4544, and annotations.
The trial court instructed the jury that there was no evidence of manslaughter in the case, and that they would therefore convict the defendant of murder in the second degree or acquit him, under his plea of self-defense, as they found the facts to be. The jury convicted the defendant of murder in the second degree. We think there was error, to the prejudice of the defendant, in excluding from the jury's consideration the question of manslaughter.
It is a well-recognized rule of practice with us that where one is indicted for a crime, and under the same bill it is permissible to convict the defendant of "a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime" (C. S. § 4640), and there is evidence tending to support a milder verdict, the prisoner is entitled to have the different views presented to the jury, under a proper charge, and an error in this respect is not cured by a verdict convicting him of the crime as charged in the bill of indictment, for in such case it cannot be known whether the jury would have convicted of a less degree if the different views, arising on the evidence, had been correctly presented by ...
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State v. Robinson
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