State v. Rollins
| Decision Date | 21 November 1893 |
| Citation | 18 S.E. 394,113 N.C. 722 |
| Court | North Carolina Supreme Court |
| Parties | STATE . v. ROLLINS. |
Murder—Evidence—Res Gestj — Impeachment of Witness—Character of Deceased—When mat be Shown—Rescue of Prisoner—.Excessive Force in Resisting—Instructions.
1. On a murder trial, in which defendant pleaded self-defense, a witness for defendant, near whose house the homicide occurred, testified that on the night of the homicide she heard men quarreling, and a man threatening to cut another's throat. She cried "Murder, " and two or three men came to her. Held, that evidence that she told the men a man's throat was being cut at her door was properly excluded.
2. A witness for defendant testified that on the night of the homicide he ran towards the place, hearing shots in that direction. He saw defendant and some more men in front of a house, and saw defendant take hold of one of them. Witness kept going towards defendant, and saw the blaze of a pistol, and he had thenreached the place where defendant was standing. Held error to exclude evidence of what defendant said to witness at the time, such evidence being a part of the res gestae.
3. Evidence that one who testified as an eyewitness to the homicide was "very drunk" at the time of the homicide is competent, as going to his credibility.
4. Though defendant set up the plea of self-defense, it was not competent for him to show that deceased was a man of violent character, where he did not know the character of deceased for violence.
5. Where a person is lawfully under the arrest of a police officer, and another attempts to rescue him, the officer, in resisting such arrest, is justified in the use of excessive force, if he acts in good faith and without malice.
6. Where the rescue of a prisoner lawfully in the custody of an officer is attempted, and the officer, in resisting the attempt, uses such force as causes the death of the person attempting the rescue, there is no presumption of law that the officer acted without malice and in good faith, and the burden is on him to show matter either of excuse or in mitigation.
7. Where a person submits to arrest, and a rescue is attempted, the officer has not authority to resist such rescue, and to use such force as is necessary to prevent the rescue, if the original arrest was unlawful.
8. Where a prisoner is lawfully in the custody of an officer, and a rescue is attempted, the officer may arrest the person attempting the rescue, and may use such force as is necessary.
9. Where the killing is admitted to have been done by defendant, an instruction that if the facts of the homicide are in doubt "and the jury are unable to say how the deceased came to his death, and under what circumstances, the jury will render a verdict of 'Not guilty, ' is inapplicable to the facts.
10. in such case, it was proper to refuse to charge that "if there is a reasonable hypothesis, supported by the evidence, which is consistent with the prisoner's innocence, then it is the duty of the jury to acquit, " in that all matters of excuse or mitigation devolve on defendant, where the killing is proved.
11. Though the court cannot single out witnesses, and charge the jury that they must make a designated finding if they believe such witnesses, it may properly charge that if the jury believe a certain state of facts, as deposed by certain witnesses, then a certain law is applicable to such facts, the attention of the jury being thereby directed, not to the credibility of the witnesses, but to the facts.
12. The court charged that an officer may arrest without warrant for a breach of the peace committed in his presence, but that he must, unless a known officer, notify the person that lie is an officer, and if he fail to do so, especially on demand, the arrest is illegal, and may be lawfully resisted by the person arrested, or third persons, and that the person making the arrest, slaying any one of those resisting it, would be guilty of murder, unless excessive force was used by those resisting, and then he would be guilty of manslaughter. Held a correct proposition of law, and not objectionable as expressing an opinion that defendant was or was not a known officer.
13. The court charged that where the arrest is made legally, by a lawful officer, he may use the amount of force necessary to prevent an escape or rescue, and no more, and if he use excessive force, and death results, he is guilty of manslaughter, but if excessive force is used, and he intentionally slays the person resisting arrest, or the person attempting the rescue, he is guilty of murder. Held, that the omission to furl her charge that what would be excessive force in an individual, in an ordinary encounter, might not be so in an officer resisting the escape or rescue of a prisoner, was not error, when such further instruction was not asked.
Appeal from superior court, Durham county; H. R. Bryan, Judge.
Wayland P. Rollins was convicted of the felonious slaying of Sandy Jones, and appeals. Reversed.
Defendant was a policeman of the town of Durham, assigned to special duty in a locality called "Smoky Hollow, " just beyond the corporate limits of the town; the locality being inhabited, for the most part, by lewd women. On the evening of the homicide, he was drunk, and called, in company with Dick Happer, at a house of ill fame kept by Nan White. "While in Nan White's room, deceased and his brothers, John and Charles, stopped at the house. As to the circumstances connected with, and leading up to, the homicide, John Jones testified for the state that he went upon the porch, and knocked at the door, and was told by the woman that he could not come in. He knocked again, and defendant came up the steps, and took him by the arm, advising him that he was under arrest. Witness asked him to show his authority, and defendant did not do so. Happer took witness by one arm, and defendant took him by the other, and deceased came up, and told them to turn witness loose, saying that he would take charge of him. This defendant refused to do, and, on being asked by witness to show his authority, pulled out his pistol, and shot deceased. Before defendant shot, deceased took witness by his left arm, and tried to get him out of defendant's hands. Witness and deceased then ran off in different directions, and deceased died an hour after. Dr. A. Cheatham was called, and testified that deceased died from a pistol wound in the stomach. After introducing witnesses to testify to the good character of John Jones, the state rested.
Dick Happer testified in behalf of defendant that, on the night of the homicide, he and defendant visited Nan White's house. Defendant went into her room; and witness, into another room. Witness heard some one kicking at the door about 15 minutes after. Witness heard a voice say, "it takes a damn good man to carry me up town." Then he heard defendant say, "Well, you will have to go." Witness went out, and found deceased and his two brothers and defendant on the porch. One of them asked defendant to show his authority, and defendant said "Here is my authority, " and showed his badge. At defendant's request, witness took John Jones' hand, and they started up town, deceased and Charles Jones following them. Witness heard some one running up behind them, and, looking back, saw deceased and Charles right behind them. Deceased grabbed defendant on the shoulder, and said: Charles also seized defendant, and a struggle ensued. One of them said, "Cut his damn throat." Defendant fell, and deceased struck him, witness at the same time having his
arms around deceased's waist Charles had defendant by the throat, and said, "Cut the damn son of a bitch's throat" Then a pistol was fired twice, and deceased said, "The damn son of a bitch has shot me twice." Defendant called out "Help, " or "I'll give up, " and witness ran for a policeman, and told him that defendant had tried to arrest some men in Smoky Hollow; that they had jumped on him, and the policeman had better go there quick. Mrs. Brandon's house was the closest house to the shooting.
Nan White testified that, while Rollins was in her room, some men came on her front porch, and kicked the bottom of her door. She stepped into the hall, and told them that she was sick, and that there was no one to see them, and asked them to go away. The kicking continued, and she requested defendant to go out and take them away. The kicking at the bottom of the door was so severe that one of the panels was broken loose.
Mrs. Mary Brandon testified, in substance: Defendant asked witness, "What did you say to those that came to your door?" The state objected, and the answer was ruled out. The defendant excepted. Defendant stated the purpose of the question to be to show that she said to those that came up that they were killing a man at her door; that they were cutting a man's throat at her door, —and insisted that it was competent as a part of the res gestae, and that it tended to corroborate witness in what she now says. Witness had not been attacked.
Jim Potts, a witness for defendant, testified as follows: ...
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