State v. Speller

• Decision Date: 28 February 1882
• Citation: 86 N.C. 697
• Court: North Carolina Supreme Court
• Parties: STATE v. L. R. SPELLER.

86 N.C. 697

STATE

v.L. R. SPELLER.

Supreme Court of North Carolina.

February Term, 1882.

INDICTMENT for misdemeanor tried at Fall Term, 1881, of WASHINGTON Superior Court, before Bennett, J.

The defendant was charged with carrying a concealed weapon contrary to the statute--Acts 1879, ch. 127.

At the trial, one Cahoon was introduced as a witness by the state, and testified that he saw the defendant have a pistol at a certain place, away from his own premises. The pistol was concealed in the pocket of his pants. This was on Monday after the defendant and one Jenkins had a difficulty on Saturday, when Jenkins had attempted to cut him with a razor. The defendant's counsel proposed to ask this witness what the defendant said as to the possession of the pistol, but on objection on the part of the state, was not permitted to do so.

It was further given in evidence by the state that after their difficulty on Saturday, Jenkins and defendant, each applied for and procured a state warrant against the other. When the officer having the warrant against the defendant arrested him on Monday, he asked him if he had a weapon, and was told that he did not, but on searching him found a pistol concealed in the hip pocket of his pants.

On the part of the defence it was shown that after the difficulty on Saturday, Jenkins had threatened the defendant with violence, and that his threats had been communicated to the defendant.

The defendant himself was examined as a witness, and his counsel proposed to ask him whether Jenkins had assaulted him with a razor on the Saturday before his arrest on Monday, but upon objection on the part of the state, it was not allowed. The defendant then testified that he was not the owner of the pistol, and that he had procured it after the assault upon him, ??nd after he had been informed of the threats made by Jenkins to take his life. He got it to defend himself, and out of fear of Jenkins, from whom he lived only about one-half mile. He lived four miles from the nearest justice, and a mile and a half from the nearest peace officer.

The defendant's counsel asked the court to charge the jury if the defendant had reason to believe, and did believe, that his life was in danger, and took the pistol with him solely for his own protection, while he sought a justice to complain to, he would not be guilty.

His Honor declined so to charge, and instructed the jury that if they were satisfied that the defendant when not upon his own premises had carried the pistol concealed about his person, he was guilty under the statute, even though Jenkins had assaulted him, and made threats against him, and he had procured the pistol and carried it in consequence of those threats. Verdict of guilty, judgment, appeal by defendant.

Attorney General, for the State .

Mr. W. A. Moore, for defendant .

RUFFIN, J.

This court is of the opinion that neither one of the defendant's exceptions should be sustained. The first, if for no other reason, because the case fails to set out the purpose of the declaration of the defendant, which he sought to make proof of, and which was excluded by the court; and we therefore cannot see its pertinency, or know that any harm came to the defendant on account of its exclusion.

It would be a vain thing to disturb a verdict and judgment because of the exclusion of testimony which ought not, and from its very nature could not, have any bearing upon the case, and to avoid doing a vain thing, the courts invariably require it of him who complains of the improper exclusion of testimony, that he should plainly set forth in his exception its purport, or substance,...