State v. Ussery
Decision Date | 31 March 1896 |
Court | North Carolina Supreme Court |
Parties | STATE. v. USSERY. |
Homicide — Instructions — Conduct of Trial — Evidence—Character.
1. On trial for murder by means of a stick, resulting in conviction for manslaughter, the failure of the trial judge to instruct the jury whether the stick used was a deadly weapon was not prejudicial to defendant.
2. Where counsel of prisoner indulged in a line of argument for which there was no support in the evidence, it is within the discretion of the judge to stop him at once, or to instruct the jury to disregard the objectionable remarks.
3. On trial for murder, an instruction to the jury that if they were satisfied that the prisoner reasonably feared loss of life or great bodily harm at the hands of the deceased at the time he struck the blow, and that it was necessary for him to strike for the protection of his life, or to save himself from serious bodily harm, they should acquit the prisoner, is sufficiently explicit, and not erroneous in that it fails to instruct them to acquit if the defendant believed it was necessary to strike in order to protect himself.
4. If the trial judge in his charge omits any evidence favorable to the prisoner, it is the duty of the prisoner's counsel to call attention to the omission at the time; and after verdict an exception grounded on such omission will not be sustained.
5. The trial judge is not required to recapitulate all the evidence in his charge to the jury, and if the prisoner desires any specific portion repeated he must make the request in apt time, and, in the absence of such request, the failure of the court to repeat any of the testimony is not error.
6. Where a witness, testifying to the general character of the prisoner, had on cross-examination stated that the prisoner had submitted on the charge of adultery, the redirect examination is limited to the particular matter brought out on cross-examination.
Appeal from superior court, Richmond county; Robinson, Judge.
Robert Ussery was indicted for murder of one O. Capel. He was convicted of manslaughter, and appeals. Affirmed.
Shepherd & Busbee and Cameron Morrison, for appellant.
The Attorney General, for the State.
The defendant was indicted for murder and convicted of manslaughter. There were numerous exceptions to the admission and exclusion of evidence and to the charge of the court. Several of each were abandoned in this court, and we notice only those which seemed to be relied on.
One of the exceptions relied on in the argument is that his honor failed to tell the jury whether the stick used was a deadly weapon. This we need not discuss, as the verdict is only for manslaughter, and the prisoner has the benefit of treating the stick as not being a deadly weapon, because manslaughter may be produced in various ways without the use of such a weapon.
Another exception by the prisoner is that the court stopped one of his counsel in his argument when commenting on a state of facts of which his honor stated there was no evidence. It would be manifestly improper for counsel to indulge in a line of argument when there is no evidence to support it. There are frequent occasions on trials below calling for the discretion and sound judgment of the trial judge. When he shall be of opinion that counsel are exceeding and abusing their privileges in any matter, it is his duty to either stop the counsel at once, or caution and tell the jury in his charge to disregard the objectionable remarks; and neither course will be error. Greenlee v. Greenlee, 93 N. C. 278; State v. Hill, 114 N. C. 780, 18 S. E. 971, and several cases therein cited.
His honor charged the jury that if they were satisfied "the prisoner reasonably feared the loss of his life or great bodily harm at the hands of the deceased at the time he struck the blow, and that it was necessary for him to strike for the protection of his life, or to save himself from serious bodily harm, you should acquit the prisoner." We think this complies with the rule that "he believed it was necessary, " etc., insisted on by the defendant, and this disposes of several other exceptions of the same import.
The prisoner's seventh exception is that his honor, in his charge in relation to murder in the second degree, called...
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