State v. Utley
| Decision Date | 07 April 1903 |
| Parties | STATE v. UTLEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cumberland County; Cooke, Judge.
E. L Utley was convicted of murder in the second degree, and appeals. Affirmed.
Where on a criminal trial 14 jurors are stood aside by the state and when the list of veniremen is exhausted the court orders the names of the 14 jurors returned to the hat and drawn again, instead of having them called in the order in which they had been stood aside, there is no error.
Thos H. Sutton and Hinsdale & Hinsdale, for appellant.
N. A. Sinclair, H. L. Cook, and the Attorney General, for the State.
The objections of the prisoner to the charge of the court are embraced in the exceptions, expressed in different forms, to those parts which excluded expressly the theory of self-defense, and thereby prevented the finding by the jury of a verdict of not guilty, and to those parts which involved the treatment of the law concerning manslaughter as considered in the view of a reduction through mitigating circumstances of the crime of murder. Included in the above is an exception to the rule laid down by his honor as to the degree and quality of the proof necessary to show matter of excuse or mitigation.
We will consider the last exception first in order, for the reason that from our point of view the decision of that question and its bearings will settle the chief matter involved in the appeal.
His honor, in three separate and distinct parts of his charge, laid down to the jury the correct rule--one long established by the precedents of this court--as to the degree or quantity of proof necessary to show matter of excuse or mitigation, or, in other words, to reduce the crime of murder to that of manslaughter. He told the jury, as we have said above, three times, that, when the killing with a deadly weapon is proved or admitted by the prisoner, the burden of showing mitigating circumstances is on the prisoner, who must prove them, not by a preponderance of testimony or beyond a reasonable doubt, but to the satisfaction of the jury. That was the correct rule as decided by this court in numerous cases from State v. Willis, 63 N.C. 26, down to and including cases in the last volume. But in another part of his charge he laid down a rule contradictory of the true one. He instructed the jury: "If you shall find beyond a reasonable doubt that the prisoner, at the time he entered the hall for the last time from the street, had no malice against the deceased or intent to kill the deceased, and there was an altercation of words, as testified to by the witness Sim Councill, and that it was in consequence of this altercation of words that both the prisoner and the deceased became angry and both drew their weapons, and no unfair advantage was taken by the prisoner or the deceased, and it was a fight upon equal terms, and they were upon equal terms, then the prisoner would be guilty of manslaughter for the slaying of the deceased."
One of the grounds of the prisoner's exception to that part of the charge was that the prisoner was required to prove mitigating circumstances, not to the satisfaction of the jury, but beyond a reasonable doubt. The exception was well taken, because the instructions were contradictory, and we cannot tell which the jury acted upon; and unless the error was harmless a new trial will be granted. It was not harmless error if in any aspect of the case the jury could have rendered a verdict of manslaughter under the law.
The question, then, is, the killing of the deceased with a deadly weapon having been found, was there any evidence in the case tending to reduce the crime which the law by presumption fixed upon the prisoner--murder in the second degree?
The discussion of this matter makes it necessary to state the substance of the evidence on this point. The deceased was employed as night clerk in the Hotel La Fayette in Fayetteville, and on the early morning of October 24, 1902, was on duty at his proper place in the hotel. Some time between eleven and half o'clock and twelve and half o'clock of that morning, the prisoner, in an intoxicated condition, came down from his room and asked the deceased to let him have $5. The deceased said, "I have not got it; you can't get it." He said he could not get to the money. The prisoner then said, "I will have it," and at the same time pulled out his pistol and cursed him, and added, "I will have Mac to fire you in the morning." The deceased then went to the desk back of the office where the register was, and was looking down in the money drawer when the prisoner fired his pistol. The deceased said, "Mr. Utley, what do you mean?" Verna Moore, who was with the prisoner, said to the prisoner, "Ed, did you shoot at him?" The prisoner said, "No, I shot over him to scare him." At that time, according to the evidence of Moore, two guests arrived at the hotel (about twelve and half o'clock, according to their evidence) and the deceased saw them to their rooms. About the time they had gotten between the first landing and the hall upstairs, the prisoner shot his pistol several times across the lobby towards the poolroom in the direction where the stairs went up, not shooting at any person, but at the wall, filling it full of balls. After that time, Utley and the witness Moore went up to Utley's room. Moore testified that, after they got to Utley's room, Utley said, "He has gone after Benton," and then, further, he said and repeated, "I called him a son of a b--, didn't I?" Moore said further that, after they got to Utley's room, he got a bottle of whisky, and Utley got some cartridges out of a trunk or valise beside his door. Moore said to the prisoner, "Ed, don't get the cartridges, you might shoot me." He answered, "No, I won't shoot you." Utley further said, "That man would not let me have five dollars on my check," and something else about raising some money. Moore further testified that he and Utley left the room and went downstairs. That about that time Hollingsworth came in, and then Benton. A witness (Jones) who was living at the hotel and occupied the room adjoining the prisoner's, a door between, testified that the conversation between Moore and Utley kept him awake, and he read until about 12 o'clock. They left the room, and some time after that he heard pistol shots, like they were in the hotel. Then Moore and the prisoner came back to the room, which attracted his attention, and he heard what they said. He testified that he heard the prisoner say he had plenty of cartridges and was going to load his pistol. Whereupon Moore said, "Ed, don't do that, you might kill me;" that then the prisoner said, "No, Verna, I am not going to kill you;" then the prisoner said, "Just think, that G--d d--d scoundrel would not give me five dollars on my check when I can raise more cash money to-day than any man in Fayetteville." The prisoner then said, and Moore said, "You called him that." The witness Jones further testified that he heard the prisoner say that he was going down, and if any man said a word to him he was going to fill that office full of balls. That witness said further that the prisoner seemed to be mad with the man who would not let him have the $5; that he spoke as if he was insulted.
J. H Benton, a witness for the state, testified that at the time of the homicide he was a policeman of the town of Fayetteville, and that he saw the deceased for the first time on that morning at the Coast Line Passenger Depot somewhere between 12 and 1 o'clock; that afterwards he went to the hotel immediately, following the deceased; that the witness then, with the prisoner and others, went into a small back room, where the water cooler was, and talked a while, taking a drink of whisky in the meanwhile; that the prisoner was abusing Hollingsworth a little--just an ordinary conversation; that Hollingsworth was in the office part of the building behind his desk at the counter; that he heard him, he thought, use some very harsh words towards Hollingsworth. The witness said, ...
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