State v. Tilly

• Decision Date: 30 June 1843
• Citation: 3 Ired. 424,25 N.C. 424
• Court: North Carolina Supreme Court
• Parties: STATE v. HAMPTON B. TILLY.

3 Ired. 424

25 N.C. 424

STATE

v.HAMPTON B. TILLY.

Supreme Court of North Carolina.

June Term, 1843.

In an indictment against an overseer for the murder of his employer, it is not competent for the prisoner to offer evidence of the general temper and deportment of the deceased towards his overseers and tenants.

It is not competent for a prisoner indicted for murder to give in evidence his own account of the transaction related immediately after it occurred, though no third person was present when the homicide was committed.

It is not error in the judge to tell the jury, on the trial of an indictment for murder, that “if they believed from the evidence that the prisoner had malice against the deceased on the morning of the day when the killing occurred, and there was no evidence that such malice was abandoned, even if the prisoner accidentally fell in with the deceased, the question of manslaughter could not arise, as the malice would exclude provocation;” it being clear from the context of the charge that the malice spoken of was the purpose to kill or do great bodily harm to the deceased.

The language of a judge in his charge to a jury is to be read with reference to the evidence and the points disputed on the trial; and, of course, is to be construed with the context.

Although a person may not go in search of or lie in wait for another, whom he kills, yet if he has formed the purpose to kill him, and, within a short time after forming and avowing such purpose, he, duly armed, meets the other by chance, whether in public or in secret, and slays him immediately, there is a presumption that he did it on the previous purpose and grudge, if there be no evidence of a change of purpose.

The case of the State v Johnson, 1 Ired. Rep. 354, cited and approved.

Appeal from the Superior Court of Law of Guilford County, at Spring Term, 1843, his Honor Judge BATTLE presiding.

The defendant was tried upon an indictment for the murder of William G. Martin. On the trial, Rebecca Goff, the first witness for the State testified that, at the time of the homicide, 9th September last, she was a single woman, living in the family of the prisoner, who was an overseer of the deceased on a plantation in Stokes, about 4 miles from the place at which the deceased used to reside--that in the evening, before it took place, the deceased was superintending the mowing of the meadow and putting away the hay, on the said plantation, over which the prisoner had no supervision. While the deceased was so engaged, she testified that the prisoner, being then at the house with the witness and his wife, cursed and abused the deceased with great bitterness, said his house was about to be watched that night, and he would see who watched it--that he went out into the yard when it was supposed the deceased was about to pass with the hands and Ox-cart from the meadow, but the deceased did not pass by. On cross-examination, she stated that the prisoner said the deceased accused him of trading with his negroes, and therefore was going to watch. She stated, that, after the return of the prisoner into the house, he said that the deceased accused him of not working enough and running about--that the deceased was the meanest man living, he would not take as much from him as he had done--that the devil was getting in him (prisoner) stronger and stronger every day--that he had had 12 fights in one year and whipped every time--had whipped better men than the deceased. When supper was prepared he refused to eat, saying the devil was too strong in him for him to eat--and wished he had a dram. The next morning he said the devil was still in him--went off to carry to a neighbor's house a cross cut saw, which had been borrowed to saw board timber, and returned with ardent spirits--cursed the deceased and said, that whenever Martin heard his horn blow, he came around the fields. And he then went out into the yard and blew his horn. He then went off to where the hands were at work. In about two hours he came back in a hurry and got his gun, loaded it in great haste in the yard. Witness asked him what he was going to shoot, he replied “nothing much” and went off in a run, in the direction from which he came, having driven back his hounds, which were about to follow him-- that he both came from, and went in the direction of the Board tree. Soon thereafter a negro man of the plantation came to the house where the witness was, on the riding horse of the deceased, (which he usually rode and kept at his own house) for a Frow to rive the timber into boards, got it and went in the direction of the tree. A short time after this, another negro of the plantation came running from the same direction in great alarm with the intelligence of the killing. On her cross-examination she stated, that the deceased had been at the prisoner's house about sun-set of the afternoon previous to get a webb of cloth, that the prisoner's wife had woven for him, but the prisoner was not then at the house--also that she heard no cry of hounds in the woods at the time--that the prisoner hurried off with his gun as before stated. The counsel for the prisoner admitted that the deceased had been slain by the prisoner, but alleged that it was done in self-defence--and offered to shew what were the acts and declarations of the prisoner, made immediately after the transaction, upon his return to his house, in relation to it. On objection by the State, his HONOR ruled that the declarations of the prisoner after the homicide were not admissible, unless offered by the State, in which event, he had a right to all that he then said. But that he had a right to give in evidence, what was his conduct and demeanor after the killing. He then shewed by this witness, as well as others, that, about a hour after he had gone off with his gun, he returned to his house--made no effort to escape-- that the line of the State of Virginia was about 10 miles distant--that he went off to some neighbor's houses and asked them to view the body of the deceased, and sent for a magistrate--staid at home all the night following, and made no effort to escape or resist when arrested the next day.

Christopher Eaton, a witness for the State, was mowing for the deceased in the meadow aforesad--the deceased came there on his riding horse in the forenoon, was in jocose conversation with him an hour or two, when a cloud rising, the deceased went off in the direction of the board tree aforesaid to get the prisoner and the hands to help to put up the hay. About an hour afterwards one of the negro men came galloping to him on the riding horse of the deceased, with the alarm of the homicide. Witness went then to the house of the prisoner, about a mile from the meadow, and meeting the former witness and the wife of the prisoner and one Breed-love at the spring, they all walked to the house together--they found the prisoner there. Witness went then with Breedlove to the board tree, and saw the body of deceased lying dead, and also an axe, his head badly wounded and very bloody. Spattered blood or other fluid of the body was also visible on the leaves around and on the helve of the axe, which had the appearance of having come from the right side, and a drop on the axe itself which lay near him.--Witness testified that he saw no marks of a scuffle or ren-countre at the place, and that a heavy shower of rain fell after he left, and before any other person came.

Ann Sturdivant, a sister of the first witness, saw the prisoner at the house of one Watson, his brother-in-law, two weeks before the homicide--he had pistols, and on being asked by Mrs. Watson why he carried them, he said he expected to meet out that d--d long nosed Bill Martin.

Jackson Goff, who had married the first witness since September, stated, that he had often seen the prisoner carry a dirk and pistols--that at a gathering to raise a mill 2 or 3 weeks before the homicide, the prisoner used his dirk in killing some rats secreted in the mortices of the timbers.--Upon being then asked why he carried such a thing, he said he carried it for deceased whom he cursed; and characterized by the epithet before stated. The prisoner was then on his way from Salem, had a pistol in his carry-all--said he had been to sell tobacco to get money to pay a judgment in favor of the deceased, which one Moses, a constable, then present, held. He paid Moses the money, again cursed the deceased as before, and advised Moses not to pay it to him for 3 months, saying that he could not be sooner obliged to do it--Moses replying that he paid plaintiffs in execution the first time he saw them--the prisoner replied he hoped he would not see him (cursing the deceased as before) in that time.

Martin Gordon testified, that, a few days before the killing, he asked the prisoner if the deceased had been over, and how they got on.

The prisoner replied that the deceased had been there, and that he behaved like a saint-- that he, the prisoner, was glad of it, he would do any thing to oblige the deceased, if he would treat him properly. But he expected they would come together; and if they did, he wished it to be where no one was present but negroes. If Martin could give it to him, he would take it for his share; and if he could give it to Martin, d--m him, he should take it--they would make it a counter one way or t'other.

Susanna King testified to a conversation with the prisoner 3 or 4 weeks before the homicide, in which, she said, he threatened (at Judge Venable's in the neighborhood in which they lived) to kill the deceased, if he ever treated him as he had done--the details of which conversation she gave at length, and said that said Venable and his wife were present.

Elizabeth King, a sister in law of the last named witness, swore, that on the day after this alleged conversation, the said Susannah told her there would be murder, and related the conversation with the prisoner as she had sworn in the...