State v. Trolinger

• Decision Date: 16 April 1913
• Citation: 77 S.E. 957,162 N.C. 618
• Parties: STATE v. TROLINGER.
• Court: North Carolina Supreme Court

77 S.E. 957

162 N.C. 618

STATE v. TROLINGER.

Supreme Court of North Carolina

April 16, 1913

Appeal from Superior Court, Alamance County; Peebles, Judge.

John Will Trolinger was convicted of manslaughter, and he appeals. Reversed.

Where defendant while handling a pistol caused it to be discharged and killed deceased with whom he was on friendly relations he was not guilty of manslaughter unless he intentionally pointed it at decedent, or handled it with culpable negligence and it was discharged by reason thereof.

The testimony on the part of the state tended to show that on January 18, 1913, Nash Lane was killed by a discharge of a pistol in the hands of the prisoner and under circumstances as follows: Bob Tarpley for the state testified: "That he was five to ten feet behind a group of persons, seven in number, in which were included the deceased and the defendant. That he heard the crowd talking and laughing. Heard a pistol shot, and heard a person named Trolinger (not defendant) say, 'You shot that boy,' and heard defendant say, 'I never shot the boy.' That he caught up with the crowd and found Nash Lane shot. Did not see pistol. Heard no fuss of any kind and heard only talking and laughing." William Crawford, another witness for state testified: "That he was walking in front of the group referred to. That he never saw pistol, but heard it fire, and heard some one exclaim, 'You shot that boy.' That there had been no fuss of any kind. The crowd was laughing and talking." John Ed McBroom for the state testified "That he was in the group, walking next to defendant. That he and defendant were going home, and the others in group were going to a store. That they were in public road, and that defendant had a pistol 'fooling with it, and it went off.' That the defendant 'had it out, messing with it, pulling the cartridges out.' That the defendant had had the pistol in his hands three or four minutes before it fired. That deceased was on the left side of road. That there was not a fuss at all. Not a cross word." Defendant introduced no testimony. The court in effect charged the jury that if they were satisfied beyond reasonable doubt that the prisoner killed deceased with a deadly weapon, the burden was on defendant to show it was excusable homicide, and there was no evidence in case sufficient to go to the jury to show that defendant was not guilty of the crime of manslaughter, and it would be their duty to convict of that crime. Verdict, guilty of manslaughter. Judgment, and prisoner excepted and appealed.

J. Adolph Long and Parker & Parker, all of Graham, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE J.

On the facts as they now appear of record, this case, in our opinion, is controlled by that of State v. Limerick, reported in 146 N.C. 649, 61 S.E. 568. In Limerick's Case the only eyewitness of the homicide testified, in effect: That deceased and defendant prisoner, two young boys, good friends, were coming through a field and deceased had a gun. That witness heard one say to the other, "I will shoot you," the other replied, "No, I will shoot you," they were laughing. Witness turned around, and as he did so the gun fired and deceased fell. That prisoner held the gun when it fired. They were standing close together and about 18 steps from witness. Did not know which one had the gun when they walked off from witness. Did not know which one had it when they were talking about shooting each other. On cross-examination, the witness further said: "The deceased and prisoner seemed to be great friends. That witness was hunting and came up with them. They seemed to be laughing," etc. This was the only witness who testified directly to the facts of the occurrence, and the court below ruled, as in this case, that in any aspect of the evidence the prisoner was at least guilty of the crime of manslaughter. Speaking to this position, the Supreme Court in granting a new trial said: "Undoubtedly, if the prisoner intentionally pointed the gun at the deceased and it was then discharged, inflicting the wound of which he died, or if the prisoner was at the time...