State v. Spivey

• Decision Date: 24 February 1903
• Citation: 43 S.E. 475,132 N.C. 989
• Parties: STATE v. SPIVEY.
• Court: North Carolina Supreme Court

43 S.E. 475

132 N.C. 989

STATE v. SPIVEY.

Supreme Court of North Carolina

February 24, 1903

Appeal from superior court, Halifax county; Geo. A. Jones, Judge.

Vance Spivey was convicted of murder, and appeals. Affirmed.

T. C Harrison, for appellant.

The Attorney General, for the State.

MONTGOMERY J.

The first exception is to the refusal of his honor to quash the bill of indictment on the ground that one of the grand jurors who acted in finding the bill had a suit pending and at issue in the court. The summons was issued and made returnable to the term at which the bill was found, but no pleadings had been filed. The cause was not at issue when the bill was found and the case tried, and even if it had, afterwards, at the same term been brought to issue, under the decision of this court in State v. Smarr, 121 N.C. 669, 28 S.E 549, the exception could not be sustained, as the case would not be for trial until the next term of court. Code, § 400. The object of section 1728 of the Code is to disqualify one to serve as a juror who had a suit to be tried at the same term at which he is drawn to serve as a juror.

The other exceptions are to the charge of the court. The first of them is "that his honor failed to charge the jury that from the evidence there was not sufficient cooling time between the time that the deceased left the cell and his return, when the killing was done." The prisoner and the deceased were convicted criminals, sentenced to terms in the state's prison, and at the time of the homicide confined in the quarters prepared for them on one of the state's farms in Halifax county. They slept in the same box (bunk) and to get in or out of the bed the deceased had a habit of stepping over or across the prisoner, who occupied the front berth. The deceased, on the morning of the homicide, in getting out of his bed, was threatened by the prisoner, and told that, if he repeated his act, he (the prisoner) would kill him. The deceased went out of the room, remained five minutes, and in getting back into his place in the box across the prisoner, remarked to the prisoner: "You trifling, one-armed scoundrel, if killing is what you want, you can get all you want. I am a killing man." The prisoner himself testified that he had several times before threatened to kill the deceased if he stepped over him again, and that he had prepared and hid under his bunk a piece of iron 18 inches long and about 3/4 of an inch thick, weighing about two pounds, with a nut screwed on the end. From the evidence it appeared that he struck the deceased seven licks over the head and face, causing death. In the light of the evidence in this case, the doctrine of "cooling time" does not apply. The deceased did not offer to strike the prisoner, and therefore gave him no legal provocation. "Words of reproach and of insult, however grievous, do not make legal provocation; nor do indecent or provoking actions or gestures, expressive of contempt and reproach, unless accompanied with indignity to the person, as by a battery, or an assault, at least. *** In the absence of such provocation, there is in the eye of the law no adequate cause for such furious state of mind of the prisoner and excessive heat of blood as will mitigate the crime from murder to manslaughter. In such a case there is no occasion for cooling time." State v. McNeill, 92 N.C. 812.

The third exception is "that the court charged the jury that it would not be necessary for such fixed design to be formed a definite time before the killing." The instruction of his honor on the question of murder in the first degree was full and clear and correct. He said in part: "An act is done willfully when done intentionally and on purpose. By premeditation is meant thinking out beforehand; and when one thinks over doing an act, and then determines or concludes to do it, he has premeditated the act. Malice, in the ordinary sense, means ill will or hatred toward another; but in its legal sense it signifies a wrong act done without just cause or excuse. Before you can convict the prisoner of murder in the first degree, it is necessary for the state to show from the evidence, beyond a reasonable doubt, that the prisoner prior to the time of the killing, formed the purpose or design to kill the deceased, and that this design to kill was formed with deliberation and premeditation, and that in pursuance of said design the prisoner killed the deceased. It would not be necessary...