State v. Shelton

• Decision Date: 30 June 1878
• Citation: 79 N.C. 605
• Court: North Carolina Supreme Court
• Parties: STATE v. ISAAC SHELTON ET ALFRED FRANKLIN.

79 N.C. 605

STATE

v.ISAAC SHELTON ET ALFRED FRANKLIN.

Supreme Court of North Carolina.

June Term, 1878.

INDICTMENT for an Assault and Battery tried at Spring Term, 1878, of MADISON Superior Court, before Cloud, J.

The defendants and two others, Larkin Stanton and Solomon Stanton, were indicted jointly for an assault and battery on one Peter Howard. Larkin Stanton was not taken, and the other three defendants were put on trial. The jury acquitted Solomon Stanton and found the other defendants guilty, and from the judgment thereon they appealed to this Court.

The facts so far as necessary to show the defence relied on are these: The prosecutor, Howard, who resided in Madison county in this State had been committed on a charge for larceny in Tennessee and had escaped from custody and returned home. Larkin Stanton and Alfred Franklin came to prosecutor's house and informed him that they had come to arrest him and carry him to Tennessee. Howard replied that he would not be taken unless they had a paper from the Governor. Other conversation passed and the parties left. Thereupon the prosecutor loaded his musket with duck shot and carrying it with him went to the house of a Justice of the Peace to witness a trial. At its conclusion he started home and passing the house of one Chandler, saw all four defendants sitting in the porch. When he had gone about one hundred and fifty yards from the house, he heard some one call out “halt.” Prosecutor stopped, resting his gun on the ground, and looking back saw all four pursuing and about forty yards distant. Larkin Stanton immediately fired at prosecutor, the ball passing through the side of his neck. Prosecutor returned the fire but without effect, when they all ran up, and Isaac Shelton discharged his pistol three times at prosecutor, wounding him in the shoulder, and Alfred Franklin struck the side of his head with a stone and felled him to the earth. They then left him and went off. None of them had any warrant for prosecutor's arrest, nor had any official authority.

The Court was asked to charge the jury that if the defendants were making an effort to arrest the prosecutor, in good faith, with intent to convey him to Tennessee for trial although they had no process, they would be justified unless the force used was excessive. The Court refused to give the instruction and told the jury that the defendants had no right to arrest without legal process. Verdict of guilty. Judgment. Appeal by defendants.

Attorney General, for the State .

No counsel for defendants.

SMITH, C. J. (After stating the case as above.)

In our opinion the Court was correct both in refusing to give the instruction asked and in that given. There were no facts in evidence from which the jury could reasonably infer that the defendants honestly intended the arrest and removal, and that their acts were directed to that end. The assault was with a deadly weapon, made while the prosecutor at their command stopped and was awaiting their approach, without any demonstration on his part of an intended attack on them. When twice wounded with shot and smitten to the...