State v. Rollins

• Decision Date: 21 November 1893
• Citation: 18 S.E. 394,113 N.C. 722
• Parties: STATE v. ROLLINS.
• Court: North Carolina Supreme Court

18 S.E. 394

113 N.C. 722

STATE v. ROLLINS.

Supreme Court of North Carolina

November 21, 1893

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: "You damn son of a bitch! You shan't carry my brother off." 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: "I live on East Main street, near where Reams avenue runs into it. I live on left-hand side of street. No fence around my house. None in front. A wire fence at the side. The night of the homicide, I was at my house, and heard some men coming from towards the railroad. They were coming towards town. There was cursing going on among them. Just as they got to the fence at my house, the cursing was loudest. I heard a man say, 'I'll cut his throat.' Then a pistol fired, and then, right straight, another. Some one said: 'I will cut his G___d d___n throat. I'll cut his head off.' I opened front door, and shut it. Went to back door, and hollowed 'Murder' four or five times. Two or three came to my back door. Jasper Phipps was the only one I knew." 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: "I was in Smoky Hollow the night of the homicide, at Lilly Bennett's, about three hundred and fifty yards from Mrs. Brandon's,--back of Nan White's. Heard two pistol shots. Sounded as if shot in a box or house. Heard some one, in a woman's voice, hollow 'Murder.' I saw Mrs. Brandon in her door, hollowing 'Murder.' She continued till I got there. I ran around to the front door. Saw defendant and Jasper Phipps, and some more men in front. I went on after them. Pretty soon, Rollins overtook one, and caught hold of him. Phipps was in front of Rollins, a little bit. By that time, had gotten out of my sight. I kept going towards Rollins. Saw the blaze of a pistol. By that time, I had gotten up to Rollins." Defendant then asked, "What did Rollins say to you as you ran up, between third and fourth shots?" State objected. Defendant stated that he expected to prove that defendant said, "Catch hold of this man. He has tried to kill me," and insisted on its competency as a part of the res gestae. The answer was excluded, and defendant excepted. "I don't know who fired those last two shots. I could see the blaze, but it was too dark for me to see who shot. Rollins did not. I caught hold of the man that Rollins had. It was Charles Jones. Phipps was standing near, with John Jones." The defendant asked, "What was John Jones' condition?" The state objected. The defendant stated that he expected to prove that he was very drunk, to contradict John Jones, to impeach his credit as a witness, and as a circumstance corroborating defendant's contention of self-defense. The answer was excluded, and defendant excepted.

J. W. Bradford testified, in substance, that he was chief of police of Winston; that he knew the deceased, Sandy Jones, and knew his general character. The defendant offered to prove by this witness that the deceased, Sandy Jones, was a man of most violent and dangerous character. The state objected. The defendant insisted on its competency, there having been introduced evidence going to establish self-defense, and, further, as a circumstance going to show whether the said deceased introduced the knife into the difficulty, the evidence on this point having been circumstantial. The evidence was excluded on the ground that it was not shown that the defendant knew deceased, or his character, and that the evidence of the homicide is not circumstantial, and defendant excepted.

The following instructions were requested by defendant, and their refusal duly excepted to. "If the jury shall believe that the said John D. Jones was under lawful arrest, and in the custody of the defendant, and that the deceased, Sandy Jones, and Charles Jones, either or both of them, attempted to rescue the said John D. Jones from such custody, then the defendant, in resisting such attempt, would be protected in the use of such force that a jury would ordinarily consider excessive, if the defendant was acting in good faith, and was free from malice. If the jury believes that the said John D Jones was under lawful arrest, in the custody of the defendant, and that the deceased, Sandy Jones, or Charles Jones, both or either of them, attempted to rescue said John D. Jones from such custody, then the law presume that in resisting such rescue the defendant acted in good faith, and free from the influence of malice. If the jury shall believe that John D. Jones submitted to arrest by the defendant, and submitted to remain in the custody of the defendant, and after the defendant and the said John D. Jones walked together for the distance of twenty or thirty yards, and if the jury believe that the deceased, Sandy Jones, or Charles Jones, or both or either of them, attempted then to rescue the said John D. Jones from such custody, the defendant had the power and authority to resist such rescue, even though the original arrest of John D. Jones was unlawful, and to use such force as was necessary to prevent such rescue and escape. If the jury shall believe that after John D. Jones was arrested by the defendant, if the same was lawful, the deceased, Sandy Jones, or Charles Jones, both or either of them, assaulted the defendant, then the defendant had the power to arrest said Sandy Jones or Charles Jones, or both of them, for such assault, and to use such force as was necessary to make such arrest." The following charges were given at the request of the state, and excepted to by defendant: "(1) That, the killing having been admitted or proven to have been done with a deadly weapon, it devolves upon the prisoner to show to the jury facts or circumstances to mitigate or excuse the crime, and, if the...