State v. Shemwell

• Decision Date: 17 November 1920
• Docket Number: 378.
• Parties: STATE v. SHEMWELL.
• Court: North Carolina Supreme Court

104 S.E. 885

180 N.C. 718

STATE v. SHEMWELL.

No. 378.

Supreme Court of North Carolina

November 17, 1920

Appeal from Superior Court, Davidson County; Ray, Judge.

Baxter Shemwell was convicted of assault with a deadly weapon, and he appeals. No error.

The defendant was indicted on two counts, one for an assault with a deadly weapon upon Wade H. Phillips with intent to kill and the other for an assault upon John C. Bower with a deadly weapon with intent to kill. Verdict of guilty and judgment. Appeal by defendant.

James H. Pou, of Raleigh, J. R. McCrary and Emery E. Raper, both of Lexington, and W. A. Self, of Hickory, for appellant.

The Attorney General and Assistant Attorney General, for the State.

CLARK C.J.

As one of the prosecuting witnesses, J. C. Bower, was the solicitor for the district, the presiding judge, February term, 1920 appointed Z. I. Walser pro tem. to represent the state. He failed to sign the bill, but it was acted upon by the grand jury, who returned a true bill without such signature. The defendant excepted to the court's refusal to quash the bill for such omission, and again excepted to the judge permitting Walser to sign the bill at August term, nunc pro tunc.

In State v. Mace, 86 N.C. 670; Ruffin, J., said:

"The signature of the prosecuting officer, while usually attached to the indictment, forms no part of it, and is in no manner essential to its validity. The indictment is not his work, but the act of the grand jury, declared in open court, and need not be signed by any one; and, if it be, it is mere surplusage, and cannot vitiate it. State v. Vincent, 4 N. C. 105; S. v. Cox, 28 N.C. 440."

Indeed, even an indorsement by the foreman of the grand jury is not essential to its validity. State v. Sultan, 142 N.C. 572, 573, 54 S.E. 841, 9 Ann. Cas. 310; State v. Long, 143 N.C. 676, 57 S.E. 349.

The court charged the jury:

"Gentlemen of the jury, the law presumes the defendant to be innocent. The burden of proof is on the state to convict him beyond a reasonable doubt. The question to be passed upon by you is the credibility of the witnesses. If you believe the witnesses introduced by the state have sworn the truth beyond a reasonable doubt, have no doubt as to the truth of what they have testified, then the court instructs you to return a verdict of guilty of an assault with a deadly weapon."

The defendant excepted because the court failed to explain to the jury the evidence and the law applicable thereto, as required by statute, and also because the court stated to the defendant's counsel that there was no evidence of self-defense. We think the charge was a correct statement of the law, and sufficient upon the facts of this case. If the defendant desired a fuller charge, he should have asked for it. There were only two witnesses, and the questions presented to the jury were not at all complicated. There was no evidence which would justify a claim of self-defense on the part of the defendant, and in the absence of a special request to the judge to recapitulate the evidence, his failure to do so is not assignable as error. In State v. Ussery, 118 N.C. 1180, 24 S.E. 415, it said:

"If the prisoner desires the entire testimony, or any specific part thereof, repeated to the jury, he should make the request in apt time and before verdict. If no such instruction is asked, the failure of the court to repeat will not be a ground for a new trial."

To the same purport, State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31, and other cases.

We also think the judge was correct in ruling that the evidence presented no element of self-defense. The state's evidence was that the defendant, Baxter Shemwell, went to the law office of Bower & Phillips in an angry mood, armed with two pistols. Both of these gentlemen endeavored to get him to leave without having any difficulty. When he was asked to leave he drew both pistols, pointing one at Maj. Phillips and one at Bower. When this was done, Bower picked up a paper fastener and threw it at the defendant, which struck him on the head, disconcerting him somewhat, whereupon Messrs. Phillips and Bower endeavored to disarm him, and the defendant fired his pistol.

The only evidence upon which the defendant claims that there was some element of self-defense is to be found in the cross-examination of Maj. Wade H. Phillips:

"The paper fastener was on the desk by Mr. Bower. I cannot say that I did see when he first put his hands on it. I am sure that Mr. Bower did not throw until the defendant had drawn his pistol. He threw it after the pistol was out and before it went off. The pistol did not go off until we both had Mr. Shemwell, trying to disarm him. When Mr. Bower threw the paper fastener it hit the defendant, glancing his left side, may have burst his hat [the hat was shown with break entirely through brim on left side, near front of bow on hat band]. Defendant's head was bleeding."

Also, in the cross-examination, Bower testified:

"I hit him before he fired. He had the pistol presented, and was looking at me before I threw the clamp at him."

And he further said:

"Mr. Shemwell did not move toward the door until Mr. Phillips got up and asked him to leave. He then jumped back about two steps toward the door, and pulled out his pistols, and said: 'No man can run me out of this office.' "

The evidence of the two witnesses for the state is clear and unambiguous, and shows an assault by the defendant upon the two prosecuting witnesses in their own office, with two pistols, one pointed at each of them, because they requested him to leave. The defendant did not go upon the stand, nor put on any evidence. The evidence for the prosecution is that the prosecutors requested him to leave, and not until he had drawn and pointed his pistols at them did Bower throw, or offer to throw, the clamp at the defendant, and if they had not been a little quicker than the defendant after he drew his pistols,...