State v. Rhyne , 124 N.C. 847 ( 1899 )

Euroites, J.

The prisoner was indicted and convicted of murder in the first degree, and from the judgment of the Court, he appealed. There are some exceptions taken to the charge, but we have examined them with care and do not think they can be sustained. The charge seems to' be a full, clear and correct enunciation of the law of murder in the first and second degrees, as it exists under the statute of 1893. . The error, if there be error, is in submitting the question of murder in the first degree to the jury upon the evidence in the case. That Thomas Falls had been killed by the prisoner with a deadly weapon, was clearly shown— indeed not denied. Under the law as it existed before the Act of 1893, malice would have been presumed from these facts, and nothing else appearing the killing would have been murder. The same rule, as to killing with a deadly weapon and the presumption of malice that existed before the Act of 1893, still exists, but is only applicable to murder in the second degree; and the burden is still on the prisoner to show facts in extenuation, mitigation or excuse to reduce the grade of the crime below that of murder in the second degree, or to justify or excuse the killing. As the killing with a deadly weapon was proved (in fact not denied), and the prisoner having offered no evidence in extenuation, excuse or justification, the Court would have been justified in telling the jury that if they believed the evidence the prisoner was guilty of murder in the second degree.

But since the Act of 1893, Ch. 85, dividing murder into two degrees, these rules of the common law do not apply to murder in the first degree, or, speaking more accurately, it takes more than this to constitute murder in the first degree; that, outside of the specified offence named in the statute, the killing must be “wilful, deliberate and premeditated;” and this must be shown by the State beyond a reasonable doubt before it is justified in asking a verdict of guilty of murder in the first degree.

As the case depends upon the sufficiency of the evidence to justify a verdict of murder in the first degree, we think it proper to give the evidence upon which it was found: Mr. Grissom, an employee of the deceased, living and boarding with the deceased, went with him from his house to the cotton gin, and who saw and heard the whole matter, testified “that as he went from the store to his supper, he heard a fuss — a row going on between Frank Parish, an employee of the deceased and the prisoner, who had brought a load of cotton to the gin for a customer. ■ After he got to the house he continued to hear the row going on, when a daughter of the deceased informed her father that a fuss was going on between some persons at the cotton gin; that deceased came out on the piazza where the witness was, stopped a moment and started towards the gin house. Witness went with him and further testified: “Witness went with him to gin house about 25 yards from dwelling. Just across the public road as Falls (the deceased) stalled up the steps of the platform, prisoner was standing on tbe platform. Prisoner stepped off tbe platform into a wagon and from there to tbe ground. Ealls went up the steps and asked Erank Parish what the fuss was about. Erank said that a negro had called him a son of a bitch — said that was more than he could take from any negro-. Ealls told Erank to- shut up and go- back to his work — there wasn’t any use of that. It was Ealls’ gin house. Erank Parish was working for Ealls. Ealls then turned and went down the steps — went around the wagon where prisoner was standing by a tree. Ealls said ‘are you the man that has been fussing here with Erank Parish?’ and said this a second time. Prisoner made no answer to first question and he asked him the second time. As he asked him the second time Ealls put his left hand on the prisoner’s right shoulder or arm and asked him to come to the light, he wanted to find out what all this fuss was about. Just then the prisoner stabbed him and jumped back, and said ‘hands off.’ Prisoner jumped back about three or four feet. Ealls turned to witness and said he has stabbed me and he has ruined me, and he ought not to have done it, and then as soon as Falls spoke to witness, the prisoner ran and Ealls turned and went into his house. Witness left him at public road and went to store and ‘phoned’ for a doctor. Witness was in about two feet of deceased at the time he walked up to prisoner. Prisoner didn’t open the knife after Ealls got there — he didn’t put his hands in his pocket — from time prisoner got off the platform till Ealls was stabbed, was about five minutes. Ealls spoke to prisoner in a kind way and laid his hands on prisoner just merely to ask him to- go round to the light, there was no rudeness about it. Witness saw prisoner no more that night. When Ealls was on the platform his manner was gentle — asked Erank what the fuss was about, and Erank said the negro called him a son of a bitch and tbis was more tban be could take. It occurred on tbe 17th of November, 1898, between 6 and 7 o’clock in tbe afternoon. Falls lived three days after that.”

Tbe witness was tben cross examined and testified as follows: “Witness went up on platform with Falls and went back with bim, when be went down off tbe platform, and followed bim around to where prisoner was. Witness saw prisoner jump off platform into wagon when Falls started up steps — saw bim step out of wagon to tbe ground — didn’t see bim while witness was on platform talking to Parish. Witness and Falls both walked up to prisoner. Falls, before be laid bis bands on bim, asked prisoner “are you tbe fellow who has been fussing around here with Frank?’ and asked witness, ‘What all tbis fuss was about V He laid bis band on bim just as be asked bim to come around to tbe light. Falls knew tbe prisoner. Witness bad seen prisoner before tbis time. Parish said to Falls that tbe negro, Pbonse Rhyne, bad called bim a son of a bitch, and tbis was more tban be could take from any negro. Prisoner was in bearing distance of tbis remark from where be was when witness got to bim. When witness and Falls went around to prisoner, be was 10 or 12 feet from tbe wagon. When witness last saw prisoner before be found prisoner, be was stepping off tbe wagon, and he was tben in bearing distance of tbe remarks of Falls — and at tbe tree be was in bearing distance, unless tbe machinery prevented bim. When witness went around to prisoner be was standing by a tree. As witness and Falls approached from tbe bouse, Parish and prisoner were quarreling. Tbe fuss ceased when Falls started up tbe platform. Falls, with bis left band, caught tbe prisoner’s shoulder— laid bis band on his shoulder — arm rather. Falls weighed 225 pounds or 215 pounds — height about 5 feet 11 inches,' probably six feet — he was fleshy — not extra active — he was an energetic man — tended to a great deal of business.”

We have quoted tbe entire evidence of tbis witness, and while there was some other witness examined, there was nothing new elicited. And the evidence of this witness may be said to be the evidence in the case. There was a witness who testified that just after the homicide had taken place, some one ran by him, and he supposed it to be the prisoner (it was dark), saying he would kill him — that he would cut his guts out. And while such evidence might possibly be used to show malice, were that necessary, it is not seen how it can be evidence of premeditation and deliberation, which is the point upon which the case turns.

Probably one of the most difficult things that presents itself to a Judge presiding at the trial of an important case — a capital felony — is to say whether there is such evidence of guilt (in some cases) as should be submitted to the jury. And it is with reluctance that this Court, after the Court below has submitted the matter to the jury and they have found a verdict of guilty, holds that there was no testimony, or no such testimony of the prisoner’s guilt as should have been submitted to the jury. Rut we find that this Court, in the discharge of its duty, has done so in a number of cases. Of the more recent (tases we may name State v. Miller, 112 N. C., 886; State v. Thomas, 118 N. C., 1121; State v. Wilcox, Ibid, 1181, and State v. Gragg, 122 N. C., 1082. These were all convictions of murder in which new trials were granted upon the ground that the evidence was not sufficient to justify the verdict of guilty.

The law is fixed by the statute, that the killing must be wilful and that it must be done upon premeditation and with deliberation. The statute of 1893 making1 this change in our criminal law is a very important one, and, like all new statutes of such great importance, it has given this Court trouble to be always able to determine its meaning and to make a proper application of it to the cases in wbicli it is presented. But since it was passed, it has been presented in quite a number of cases where it has been considered and construed by this Court. It therefore becomes our duty to consider it now in the light of these decisions and apply it to this case.

In civil cases, where the issue depends upon the weight of evidence there must be more than a scintilla of evidence— “there must be evidence from which’the jury might reasonably come to the conclusion that the issue was . proved.” Wittowsky v. Wasson, 71 N. C., 451. This case has been cited with approval in Lyne v. Telegraph Company, 123 N. C., 123; Thomas v. Shooting Club, Ibid, 288; Spruill v. Insurance Company, 120 N. C., 141, and many other cases. This being the rule in civil cases, it must be at least this strong in State cases, where the issue does not turn upon the weight of evidence, but where it must be proved beyond a reasonable doubt.

The killing with a deadly weapon being proved (not denied) the question is, was this killing done upon premeditation and with deliberation? or, to more correctly state the question presented, is there any evidence “from which the jury might reasonably come to the conclusion” beyond a reasonable doubt that this homicide was committed upon deliberation and with premeditation?

In State v. Fuller, where the act of 1893 was first considered by this Court, it is said: “The use of a deadly weapon does not ipso facto bring the killing within the definition of murder perpetrated by means of poisoning, lying in wait, imprisonment, starving, torture, or by any other kind of wilful, deliberate or premeditated killing.” “Probably 99 out of every 100 homicides are caused by the use of a deadly weapon, and if every case where its use is provoked by insulting language (not deemed provocation in law) wbieb is resented with fatal result on tbe spur of tbe moment, tbe offence is presumably murder, but little bas been accomplished by tbe legislative attempt to classify cases wbieb before fell within tbe definition of murder.” In this case, there was an assault and battery, deemed in law provocation.

It is next considered by this Court in tbe case of State v. Norwood, 115 N. C., 189, where tbe Court uses this language: “In order to convict of murder in tbe first degree .... it was necessary that tbe State should show that tbe prisoner deliberately determined to take tbe child’s life.”

Murder under tbe Act of 1893 is again considered in State v. Thomas, 118 N. C., 1113, where it is said: “In order to constitute deliberation and premeditation, something more must appear than tbe prior existence of malice, or tbe presumption of malice which arises from tbe use of a deadly weapon. Though tbe mental process may require but a moment of thought, it must be shown, so as to satisfy tbe jury beyond a reasonable doubt that tbe prisoner weighed and balanced tbe subject of killing in bis mind long enough to consider tbe reason or motive which impelled him to tbe Act, and to form a fixed design to kill, in furtherance of such purpose or motive.”

In State v. McGormac, 116 N. C., 1033, tbe Act of 18913 is considered and tbe Court says: “It must have appeared in some aspect of tbe evidence that tbe accused deliberately determined to kill tbe deceased before inflicting tbe wound, in order to warrant tbe Judge in submitting tbe question of bis guilt, on tbe charge of murder in tbe first degree, to tbe jury.” Tbe same doctrine is held in a number of other cases, but these are sufficient to establish tbe rule.

Tbe evidence in this case is -quoted above, and, in our opinion, does not prove or tend to prove that tbe killing was done upon, premeditation, and witb deliberation, tested by tbe rnle, established by tbis Court.

Tbe prisoner and tbe deceased knew eacb other. They were friendly so far as appears from tbe evidence, until tbe moment of tbe homicide. Tbe prisoner was lawfully there— we may say by invitation, as tbe deceased seems to have been tbe owner of a public cotton gin, and tbe prisoner was tbe servant of one of bis customers and bad brought a load of cotton to tbe gin of tbe deceased. The prisoner and Parish, an employee of tbe deceased, got into a fuss. Tbe deceased went from bis dwelling bouse to tbe gin bouse. Tbe fuss between Parish and tbe prisoner stopped when tbe deceased got there. Tbe prisoner left tbe platform of tbe gin bouse and went ten or twelve feet off on tbe ground, by a tree. ' It was dark. Tbe deceased and Grissom, an employee of deceased, went to tbe prisoner, and tbe deceased said to prisoner, “Are you tbe fellow who has been fussing around here witb Erank Parish?” (Cross examination). Tbe prisoner made no answer, tbe deceased repeated tbe question, and as be did so, be placed bis band on tbe prisoner’s shoulder and said, come around to tbe light and tell him what the fuss was about. At tbis moment tbe fatal stroke was made. Tbe prisoner jumped back and said “Hands off.”

Where is tbe evidence of deliberation and premeditation? It can not be inferred because it was done witb a deadly weapon. • He was mad but not witb deceased, who bad seemed to be bis friend until tbe deceased put bis band upon him and said, come around to tbe light and tell me what tbis fuss is about. Tbe prisoner being mad, it seems that tbis assault was tbe cause of tbe impulse and tbe fatal blow. To put any other construction upon tbis transaction would be unnatural, unreasonable and unwarranted by tbe evidence in tbe case.

It was contended by the State that the manner in which the homicide was committed afforded sufficient evidence of deliberation and premeditation to justify the jury in finding a verdict of murder in the first degree, and State v. Dowden, 118 N. C., 1145, is cited to sustain this contention. We do not think so. The case of State v. Doiuden} is easily distinguished from this case. There, Dowden was unknown to the deceased — had gone upon the deceased’s engine without permission — was a'trespasser — was ordered off and refused to go — was put off by the deceased, but he did not give the fatal blow at that moment. After the prisoner got on the ground he claimed to have dropped his hat, and asked the deceased to hold his lantern so he could find his hat, which the deceased did, when the prisoner picked up his hat, the deceased turned around, and the prisoner shot him in the back. The simple statement of the facts makes the distinction between that case and this so apparent, that we will not discuss it.

After a full consideration of this case we are compelled to order a new trial for the reason that we are of the opinion there is no evidence to support a verdict for murder in the first degree.

New trial.