State v. Rowe

• Citation: 71 S.E. 332,155 N.C. 436
• Parties: STATE v. ROWE.
• Decision Date: 17 May 1911
• Court: United States State Supreme Court of North Carolina

71 S.E. 332

155 N.C. 436

STATE v. ROWE.

Supreme Court of North Carolina

May 17, 1911

Appeal from Superior Court, Mitchell County; Pell, Judge.

Charles Rowe was convicted of manslaughter, and he appeals. Affirmed.

Where in a prosecution for homicide, defendant admitted killing deceased by shooting him with a shotgun, but pleaded self-defense, the jury having disregarded such plea, it was their duty to convict him of murder in the second degree, and hence he could not complain that a conviction of manslaughter was unsustainable.

The defendants, Charles Rowe and Wesley Rowe, were indicted for the murder of Filmore Rose. Wesley Rowe was acquitted, and Charles Rowe was convicted of manslaughter. The killing was admitted by the defendant, Charles Rowe; his plea being self-defense. The evidence is voluminous, but, for the purpose of considering the exceptions, the following statement of facts, and a portion of the evidence, will suffice:

The deceased, whose wife was a first cousin of the prisoner, had in cultivation a field about a mile from his home, and, in order to reach the field, it was necessary for him to go over an old road which was used by the public at will, across the property of the defendant. At one place the road was rough and difficult to pass. The deceased on one or two occasions drove a little out of the usual bed of the road, allowing his wagon to run over the land and clover of the defendant. On the morning of the homicide, the two defendants left home early, about 7 o'clock, one with an axe and the other with a gun, to place some poles along the road to prevent trespassing, as they alleged. From this point the evidence of the state and the defendant conflicts. The state's witness, Avery Rose, the 16 year old son of deceased, and the only one present at the homicide except deceased and the two defendants, testified: "Thursday morning father and I started to the field; got outside of Charlie Rowe's field, and quite a distance from us we saw Charlie Rowe and Wesley Rowe standing on a high knoll, about 125 yards away. Q. Were they on or near this road you were traveling? A. Yes sir; up on a knoll, looking down the road towards us. We went on and met them. As soon as we got in sight, they came towards us. Q. What did they have in their hands? A. Wesley had a gun and Charlie Rowe had an axe. Q. What kind of gun was it? A. A double-barrel shotgun. Charlie had the axe. My father went up, and said, 'Good morning' to them, and they didn't speak to him. Charlie said: 'Now look here, Filmore, you have run over my clover and grass. If you don't drive down there in the road, I am going to put the law to you.' Father said: 'Charlie, clean out those stumps over there and fix the road so I can drive it, and I will do so.' Father went on up the road, Charlie following father, Wesley following Charlie. I was behind my father. Father went on up the road. Charlie turned around to Wesley, handed Wesley the axe. Wesley handed him the gun. I then turned, and saw there was trouble. I made for the gun and Charlie knocked me down with the gun, and run on around and shot my father. He struck me above the right ear--side of the head. After he shot my father, he turned and snapped twice at me as I went to my father. Q. Then what happened? A. They ran; went back down the road." The witness further testified that neither he nor his father had a pistol or other weapon of any kind, and there was no evidence that one was found on the body. The wife of the deceased testified that deceased had not had a pistol for over 20 years. The appellant testified in his own behalf, and after telling about going to the place of the homicide on the morning when they met, and doing a little work on the road, continued as follows: "I was just on the bank of the road, just in the edge of the clover. Q. Did any one speak? A. I was throwing the stones out and making a racket just as they got up there, and didn't hear any one speak. Q. What was the first word spoken there that you heard? A. Just at that time they were up to us, and were just passing us, and I spoke and said: 'Filmore, you are not doing what you promised you would do, keeping off the clover.' Just at that time, he spoke and cursed me (using offensive and insulting language). Q. How far away from you was he when he said that? A. Two or three steps away. Q. What happened when he used the language you have mentioned? A. Just when he used the language I have mentioned I had seen his hand in his pocket all the time, from the time he came up, and just at that time he stooped and picked up a stone with his left hand, his right hand being in his right pocket, and Avery stooped and picked up two, a stone in each hand. Just at that time, Avery rushed at me, wildly, furiously, with the stones. As he rushed at me, he saw the axe, and he dropped the stones, and grabbed the axe. Q. Then what did he do? A. Just as he grabbed the axe, he was getting very close to me and made a blow at me with the axe, and I dodged him, the handle striking me on the left shoulder, jerking the axe out of his hand. I gave back three or four steps from him, and by then I had gotten to where my brother had stopped, and was standing with the gun on his shoulder. That was my brother Wesley. As the blow came and I dodged it, I was right at my brother and I reached and took the gun off his shoulder, and smashed him around the side of the neck or head. It staggered him considerably. He didn't fall. [Here witness indicates position of parties.] Q. When you struck him with the gun, what did you say, if anything? A. Filmore made about one step towards me with his right hand in his pocket, and as it came above his pocket, with the stone in his left hand, the right hand with the revolver in it, I fired. Q. How was he holding the pistol when you fired? [Witness indicates.] Q. Where was it when you fired? A. The butt was just above the pocket. Q. Did you see the pistol? A. Yes, sir. From the time he came up, I saw his hand was on his pocket, and I could see the bulk. It looked like the muzzle of the pistol. [Witness indicates to the jury how the pistol was held.] I could see the butt above the edge of the pocket. Q. When you saw the pistol in that position, what did you do? A. I shot. Q. Did you move from the point where you were standing when you struck Avery with the gun, as you have described? A. After I got hold of the gun and smashed him, I didn't move; stood right where I was. It was all in a minute. Q. Why did you shoot? A. Our life is dear to us, and I saw that, if I didn't shoot, I would be killed. Q. When you shot, what did Filmore Rose do? A. Just as I threw the gun up he scringed a little. He was square facing me, and, when I threw the gun up, he scringed around to the right, turning his left shoulder a little towards me. The instant I fired he began to sink down. He sank down, and at that moment I spoke to my brother, and said: 'Let's go.' Q. How did you go? A. Back towards home. Q. Did you run or walk? A. We trotted; didn't run fast; went faster than a walk. Of course, when I fired the gun, I thought Avery would go to his father, and I expected when Avery got to his father he would grab the pistol. That was why we hurried away." The witness further testified that, when he reached his home, he changed his clothing and reloaded the gun, and went with it to Spruce Pine, and surrendered himself to an officer. He took the gun with him because he thought he would be assaulted. There was evidence tending to show that the prisoner and the deceased were very unfriendly at the time of the homicide, and had been for some time before. He had spoken before to the deceased about driving on his land, and the deceased became angry and quarreled with him, though he did not quarrel himself, but spoke mildly to him. The defendant, in this connection, testified: "I had been cursed by him and told him to never speak to me any more, and he had given me orders never to speak to him any more. Q. What made him mad with you [that morning]? A. My speaking to him, I suppose. Q. Didn't you know by your experience before that time that, if you spoke to him, it would make him mad? A. He seemed to be very passionate. Q. Did he get mad when you would tell him to keep off the road and clover? A. Yes; he got mad before. Q. You expected him to get mad that morning? A. I did not know whether he would get mad. I don't know what you are going to do. I spoke as kind to him as I am talking to you. I knew he had gotten mad at other times." He further stated that he bore no malice towards the deceased at the time of the shooting; that he had learned not to entertain malice; that the clover and grass were not worth much, not over ten cents; that deceased weighed about 140 pounds and the boy Avery Rose, about 125 pounds, and that he and his brother, Wesley, each weighed about 165 pounds. There was evidence that the prisoner and his brother, Wesley, did not start from home together. They met at the river, a half mile from the place of the homicide, prisoner with the axe and Wesley with the gun, which he carried for his brother to shoot squirrels with, as he did not hunt.

During the trial, after four of the counsel had closed their addresses to the jury, and just after one of the defendant's counsel had spoken, the judge said to the sheriff: "You can give the jury water, and, gentlemen of the jury, if you wish to retire to your room [the jury room being a private room at the right of the jury box], you can do so for a few minutes. We have no band to play between the speeches." Defendant excepted. The defendant requested the court to charge the jury that the language used by him when talking to the deceased about keeping off the clover was not calculated to provoke a difficulty or...