State v. . Rowe

Walker, J., after stating the case. The remark of the judge to the jury is severely criticised by counsel as an intimation by him that the ease was being argued by defendant’s counsel at too great length; but we cannot draw the inference from it. Counsel for the State might just as well complain that it was directed against them. It seems to have been made indifferently. We are not informed by the record what elicited the remark, and we are unable to see that it was prejudicial to the *445 defendant. It may bare been, so, but it is incumbent upon him to show it. We will not presume error. S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; S. v. Lance, 149 N. C., 551; S. v. Plyler, 153 N. C., 630. But it was strenuously contended and argued before us with much force and plausibility, that the words of the defendant, addressed to the deceased, were not calculated, nor could they have been intended, to provoke a difficulty, and, therefore, if the jury accepted the defendant’s version of the facts, he was without fault, while -the deceased made a sudden and deadly assault upon him, thus making complete the right of self-defense. Whether language is’ provocative or not, cannot always be determined by a mere consideration of the words by themselves. It is sometimes necessary, in order to ascertain the meaning or intention of the speaker, or the probable effect of what is said upon the person to whom he has spoken, that we should view them in their proper setting — the circumstances and surroundings of the parties, their previous relations to each other, and the state of their feelings. What is said by a friend may pass unnoticed, while if the same words are uttered by an enemy, they are like a spark, though small it be, falling into powder, and the explosion quickly follows. In such a case, a single word, though apparently innocent and harmless, will arouse the human passions of anger and resentment. An illustration may be found in McGrew v. State, 49 S. W. Rep., 226, in which it appeared that defendant and deceased, being unfriendly, had met casually in a saloon. Defendant ordered a glass of Dutch beer, whereupon deceased said: “I will take a glass of American beer,” and a fight ensued. It was contended that the words • of the deceased were not calculated to provoke a difficulty, but the Court ruled otherwise, and said: “While the act of provocation must be confined to the time when the homicide was committed, yet we do not understand by this that we cannot look back to facts transpiring before this, the course of conduct of the parties, and their former conversations', in order to shed light upon and render significant some act or declaration done at the time of the homicide.” The evidence in the case shows that the deceased had previously quarreled with the defendant *446 about this same matter, and each bad ordered the other not to speak to bim. They were enemies, and the defendant should have known and did know of this state of feeling, at the time he spoke to the deceased about driving over his “clover patch.” According to his own testimony, he accused the deceased of bad faith, in that he had deliberately broken his promise not to injure his grass and clover, and he should have known, if he did not know, that silch language was calculated to provoke a difficulty, as deceased had quarreled with him before under like circumstances, and they would have fought then if the defendant, as he says, had not exercised great self-control. The court properly instructed the jury to consider the evidence and decide whether or not the words were calculated and intended to bring on a fight, and the exception to this part of the charge must be overruled. The defendant was entitled to the instruction requested by him and which we have set out in the statement of the case, if he was entitled to any which he asked to be given; but while the judge did not use the language of the prayer, as he was not required to do so, we think the substance of the instruction was given in the general charge to the jury, and that was a sufficient response to the prayer. It may well be said that the charge of the court was favorable to the defendant, as much so as he had any right to expect, for the jury were told that the deceased was where he had a right to be, and that if a “sudden, fierce, and continuous assault was made upon him with a deadly weapon,” the law permitted him “to stand his ground” and slay his adversary, and he was not required to wait until the opportunity for successful defense had passed, but might act at once upon the facts as they appeared to’ him; and if the jury found, when the evidence is thus considered, that is, by putting themselves in his place, that the circumstances were such as to’ put a man of ordinary firmness in fear of death or great .bodily harm, the killing of the deceased was excusable, and they should acquit the defendant. The following instruction was still more favorable: “If you find from the evidence that the defendant was in a place he had a right to be — and I charge you he was in a place where he had *447 a right to be, being on Ms own land — and you further find that he was reasonably without fault in provoking the difficulty, and that Filmore Rose made a sudden, serious, and continuous assault upon him, then the defendant had the right to stand Ms ground and shoot the deceased to save his own life or Mmself from serious bodily harm.” It will be observed that, in the last instruction, the court did not describe the kind of assault which would justify the taking of human life, with great particularity. He did not tell the jury that it must have been committed with intent to kill or even to inflict great bodily harm, but that if it was “sudden, serious, and continuous,” and without regard to its effect upon the defendant’s mind or whether calculated to excite a reasonable apprehension of death or grievous bodily injury, it would be sufficient to justify Mm in “standing his ground” and killing his adversary. The word “serious” has no fixed or technical meaning in the law, but is rather general and indeterminate in its signification. It may, when applied to an assault, include one made with the intent to kill or to inflict great bodily harm, or it may not, and the jury should have been instructed more defmitely upon the character of assault that will justify a killing in self-defense; but this omission was clearly in favor of the defendant, and he has no just cause of complaint. The defendant certainly has no ground upon wMch to base an exception that the case has not been tried in accordance with the law as declared in former decisions of tMs Court. S. v. Dixon, 75 N. C., 275; S. v. Blevins, 138 N. C., 668; S. v. Hough, ibid., 663. The killing with a deadly weapon having been admitted, the defendant was guilty, at least, of murder in the second degree, nothing else appearing; and the burden accordingly rested upon him to satisfy the jury that such facts and circumstances of mitigation or justification existed as would excuse the homicide or reduce its grade to manslaughter. S. v. Brittain, 89 N. C., 481; S. v. Barrett, 132 N. C., 1005; S. v. Capps, 134 N. C., 622; S. v. Fowler, 151 N. C., 731. There was some evidence to show that the defendant slew Filmore Rose in self-defense, and it was fairly submitted to the jury, under instructions which were at least free from any error unfavorable to the de *448 fendant. The jury decided the fact against him and accepted the theory of the State and the evidence in support of it, that there was no felonious assault upon the defendant prior to- the homicide. This being so, he was guilty either of murder in the first or, at least, in the second degree, or of manslaughter. There was ample evidence upon which a conviction of either of the degrees of murder would have been warranted, but the jury, with merciful regard for the weakness and frailty of human nature, convicted of the inferior felony. What was said in S. v. Fowler, 151 N. C., 731 (by Justice Brown), is peculiarly applicable to this case: “When, as in this case, the plea is self-defense, and the killing with a deadly weapon is established or admitted, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice. An unlawful killing is manslaughter, and when there is the added element of malice, it is murder in the second degree. When the defendant takes up the laboring oar he must rebut both presumptions — the presumption that the killing was unlawful and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and, unless rebutted, the defendant is guilty of manslaughter. This is a fair deduction from the cases in this State. S. v. Hagan, 131 N. C., 802; S. v. Brittain, 89 N. C., 501, 502. At the request of defendant, the judge charged the jury very explicitly that if they should find from the evidence offered by the defendant that the killing occurred under circumstances claimed by him and testified to by his witnesses, they should return a verdict of not guilty. The jury discarded defendant’s plea, and if, as now argued by him, there was nothing in the evidence to warrant a verdict of manslaughter, it was the duty of the jury to convict of murder in the second degree. It necessarily follows that, under such circumstances, the defendant cannot complain of a verdict for manslaughter, a lesser degree of homicide. An error on the side of mercy is not reversible.” But, as also1 said in S. v. Fowler, we think there is, in this case, evidence upon which a verdict of manslaughter may well be supported, and it is not *449 necessary to apply the rule as broadly stated in S. v. Quick, 150 N. C., 820. The jury evidently concluded that the defendant had eptered into the fight willingly, if not with malice or with deliberation and premeditation. There was evidence on the part of the State that the defendant pursued Filmore Rose and shot him, when there was no real or apparent necessity for doing so in order to defend his own person, and that after killing him he turned and snapped his gun twice at his'son, a boy 16 years old. There was further evidence that Filmore Rose was not armed and that defendant must have known it, as the jury rejected his statement of the facts. lie and his brother ran immediately after this tragedy, he says in fear of this boy, whom he thought would take the pistol from his father’s pocket, when the jury find that there was none, and shoot him. There was evidence of other facts and circumstances strongly tending to show, not only the defendant’s willingness, but his eagerness for the fray. His misfortune is that the jury did not credit his story, but repudiated it and the whole of it. He was fortunate, though, in the fact that the jury, having disbelieved him, did not convict him of murder. We have not set out the charge of the court in its entirety. If we had done so, it would appear, more clearly than it does in the few passages taken therefrom, that the jury were clearly and fully instructed as to the law and its application to the facts and that the defendant was treated with perfect fairness and impartiality. We need not consider the other numerous exceptions, as they cannot be sustained in view of what we have already said, and we find no reversible error in the ruling to which they were taken. No error.