State v. Yates

• Decision Date: 17 May 1911
• Citation: 71 S.E. 317,155 N.C. 450
• Parties: STATE v. YATES.
• Court: North Carolina Supreme Court

71 S.E. 317

155 N.C. 450

STATE v. YATES.

Supreme Court of North Carolina

May 17, 1911

Appeal from Superior Court, Watauga County; Pell, Judge.

Daniel Yates was convicted of manslaughter, and he appeals. Affirmed.

Where defendant was found guilty of manslaughter, he could not complain of error in charges relating to murder.

This is an indictment against Daniel Yates for murder. The jury returned a verdict of "guilty of manslaughter," and from the judgment of imprisonment for seven years in the state's prison pronounced thereon the defendant appealed.

There was evidence upon the part of the state tending to show that on the morning of 16th November, 1909, the defendant, his wife, Bettie Yates, and her two daughters, met with Mrs Liddy McGuire, wife of the deceased, Jack McGuire, and Mrs Nancy Ward, her daughter, in a galax patch in the woods near a disputed line of their respective lands. After a conversation between the defendant and Mrs. Liddy McGuire in regard to the manner of settlement as to the disputed line the defendant and his wife, Bettie Yates, passed on up the hill in the direction of the defendant's home, and also in the direction of Sam Hicks', where the defendant claims that he had started to have a tooth extracted. After traveling a distance of from 100 to 150 yards, they passed within a few steps of the deceased, who was coming down the ridge with a rifle gun on his shoulder; while the defendant was armed with a 16-gauge shotgun, and immediately after meeting the trouble commenced.

Mrs Liddy McGuire, witness for the state, testified, in part, as follows: That she, her two daughters, the defendant, his wife, and her two daughters were in the woods the morning of the difficulty; that she and the defendant had a conversation about the land in dispute; that, after defendant and his wife had passed on, she heard a dispute between the defendant and the deceased some distance away in the woods; that they were disputing about the line; that she heard curse words pass that witness asked her husband if that was he talking, and he said, "Yes." Yates said: "Yes, and by G--, I am up here too." They kept adding words back and forth. "I cannot recollect how they were spoken. Dan started off like he was going home, and my husband started down like he was going home, and Dan said: 'G-- d-- you, I will shoot you.' He was talking loud. He had walked between 15 and 20 steps from where I was--from McGuire--after they spoke and had this talk together. When he said that, my husband turned, and the gun fired in his face. At the time my husband was shot he had his gun on his shoulder, and when he was shot it fell breech foremost in front of him."

Mrs. Nancy Ward, daughter of deceased, corroborated the statement made by Mrs. Liddy McGuire in most essential parts.

Dr. H. B. Perry, witness for the state, said, on cross-examination, that the range of the shot in the head and face indicated that the deceased and defendant were standing face to face when the gun was fired; that there were 37 shots from the middle of the neck to just above the forehead.

The defendant, Daniel Yates, testified in his own behalf, in part: That on the day of the difficulty he started to Sam Hicks' to have a tooth extracted; that he took his wife along to show her where the line in dispute was; that in going around the line they met Liddy McGuire, wife of deceased; that, after talking to Mrs. McGuire for some time as to the location of the line in dispute, he proposed to leave the matter to disinterested parties, to which proposition she seemed to assent; that, after talking over the matter, he and his wife started up the ridge, and, after going from 100 to 150 yards, they passed the deceased coming and within eight or ten steps of him; that he spoke to deceased, and deceased muttered something which defendant did not understand; that deceased appeared to be mad. After passing deceased, the deceased called to defendant, and said "Dan Yates I want you to get out of here. Get out of these woods, and take your G-- d-- set with you." Defendant told him he had a right there, and he was not going. "He said: 'Yes; G-- d-- you, you will leave.' I said, 'I am not going.' He said, 'Yes; you are. I will make you.' I said to him, 'D-- you, show me your authority.' And he said, 'G-- d-- you, I can shoot you and drag you out.' And he cocked his gun and started to shoot me. The first thought that entered my mind was to ask him not to shoot. I said, 'Jack, don't draw that gun.' The next thought that run through my mind was to shoot, and I shot. He cocked his gun first and had it up. I had my gun on my shoulder when we first met and he did too. (Here witness indicated position in which the guns were held by the parties.) After he cocked his gun and had it up, then I raised mine as quick as I could and shot. *** I shot McGuire because I thought he was going to shoot me. I thought to save myself I would shoot. In the beginning I was walking away from him. I saw he was very mad, and, when I passed, I turned facing him for fear he would shoot me, and I thought, if I should face him, we would have a few words, and he would go off, and there would be nothing of it. Before I would have shot him, I would have turned; but I was afraid he would shoot me if I turned my back. I wasn't thinking about any trouble. I knew it was his mail day. I just saw him a day or two before that and he was perfectly friendly. He proposed to sell me some hay, and I said I guessed I would buy it." Witness said he had known deceased nearly all his life; knew the general character of the deceased as being a dangerous,...