State v. . Vaden

Denny, J. The only question presented on this appeal, is whether the trial judge committed error in refusing the defendants’ motion for judgment as of nonsuit. A careful consideration of all the facts and circumstances disclosed by the evidence, leads us to the conclusion that the answer must be in the negative. The appellants are relying upon the plea of self-defense, which defense they contend is clearly established by the State’s evidence. However, since there is ample evidence tending to show that the defendant Woodrow Yaden killed the deceased with a deadly weapon, the law implies malice, and the State could not be nonsuited as against him. In the case of S. v. Johnson, 184 N. C., 637, 113 S. E., 617, this Court said: “We could not nonsuit the State, . . . for when there is a killing with a deadly weapon, as there was in this case, the law implies malice, and it is, at least, murder in the second degree, and the burden then rests upon the prisoner to satisfy the jury of the facts and circumstances in mitigation of or excuse for the homicide, the credibility of the evidence, and its sufficiency to produce this satisfaction being for the jury to consider *141 and decide.” S. v. Cagle, 209 N. C., 114, 182 S. E., 697; S. v. Robinson, 213 N. C., 213, 195 S. E., 824; S. v. Mosley, 213 N. C., 304, 195 S. E., 830; S. v. Bright, 215 N. C., 537, 2 S. E. (2d), 541; S. v. Sheek, 219 N. C., 811, 15 S. E. (2d), 282; S. v. Beachum, 220 N. C., 531, 17 S. E. (2d), 674; S. v. Rivers, 224 N. C., 419, 30 S. E. (2d), 322. The defendants’ contentions, on the plea of self-defense, were fairly and exhaustively submitted to the jury with a full explanation of the evidence and the law arising thereon, and it is evident the jury gave consideration to the defendants’ contentions in mitigation of the offense, since the jury returned a verdict of guilty of manslaughter as to each of the defendants. And the appellants do not contend that any error was committed in any respect in the trial below, save and except the refusal of the court to sustain their motion for judgment as of nonsuit.' It is further contended by the appellant, John Daniel Yaden, that although he engaged in a fight with the deceased, he did not cause his death. Therefore, he insists that if it be conceded that the evidence was sufficient to warrant its submission to the jury against Woodrow Vaden, it was insufficient as to him, and cites S. v. Greer, 162 N. C., 640, 78 S. E., 310, in which the Court said: “Although one may have had some difficulty with the deceased, he is not liable for a homicide committed at or about the same time by a third person who was acting independently, without any conspiracy or common design, even though the altercation brought on the fatal encounter, and the third person interfered to aid him.” S. v. Orr, 175 N. C., 773, 94 S. E., 721. We do not think Woodrow Yaden was acting independently so as to relieve John Daniel Yaden of any liability for the homicide. Julius Yaden, Woodrow Yaden, John Daniel Yaden and the deceased had' engaged in an affray that afternoon at Caleb Ray’s filling station. By reason of their conduct they had been ordered to leave the premises. The deceased left. Julius Yaden also left, but returned in about fifteen minutes and asked for the deceased. After being informed that he had gone up the road, he said he was going up the road too. Ho was joined by his brothers, the appealing defendants. They were armed with a blackjack and a shotgun, and were looking for the deceased. After finding the deceased at a filling station, about a quarter of a mile from where the original fight took place, the deceased and the defendants, at the suggestion of Otis and Wesley Ray, shook hands and appeared to be friendly. The defendants thereafter started to leave and went out to the truck. Julius Yaden called Otis Ray out to the truck and expressed his dissatisfaction over the settlement and said “he had received a dirty deal.” Then the deceased came out of the filling station and the quarrel was renewed. Whereupon, the deceased, armed with a knife, and John *142 Daniel Yaden, armed witb a blackjack, engaged in a fight, and while they were fighting Woodrow Yaden shot and killed the deceased. The evidence supports the view that the second fight was but a continuation of the first one, and that the purported settlement of the controversy was not entered into in good faith by the defendants, and in reality they had not quit the fight. 40 C. J. S., sec. 121, p. 995, and sec. 133, p. 1020; S. v. Robinson, supra. Moreover, the evidence is sufficient to support a finding by the jury that there was concert of action on the part of these defendants which culminated in the death of the deceased. S. v. Orr, supra. In order to relieve one engaged in a difficulty with the deceased, of responsibility for his death, inflicted by a third party who acts independently, without any conspiracy or common design, even though the altercation brought on the fatal encounter, and the third party interposed to aid him, the third party must not have acted in concert with the one engaged in the difficulty with the deceased, in producing the difficulty. Woodrow Yaden and John Daniel Yaden actively participated in the first fight with the deceased. It is apparent from their conduct these defendants were not satisfied over the outcome of the first skirmish and were seeking a renewal thereof. We think the evidence was properly submitted to the jury as to both appellants, and that the judgment of the court below must be upheld. S. v. Orr, supra; S. v. Allison, 200 N. C., 190, 156 S. E., 547. In the trial below, we find No error.