State v. . Sisk , 185 N.C. 696 ( 1923 )

Upon the evidence of the State, the two Sisk boys were offering armed resistance to the arrest of Sandy Sisk upon a valid and legal warrant, and began shooting. In the promiscuous firing that ensued, Zeigler apparently was killed by the father, but the two boys were engaged in firing at the time.

The defendants excepted to the exlusion [exclusion] of the following questions: (1) "Did not Zeigler have the general reputation of being a violent man and shooting when he was off on a raid?" It does not appear what the answer would have been. (2) The defendants also excepted to the exclusion of the testimony of the witness Gunter, who said in reply to a question: "Mr. Sisk had a lot surveyed off the mill, and my understanding was he was going to sell it and Mr. Zeigler said he wished the damned rascal would sell it or die and leave." The court properly struck out this evidence as irrelevant. (3) The court refused to allow the witness Money to answer the following question: "You have heard of Zeigler holding up people and shooting at them for carrying whiskey in their automobiles." This was properly excluded as incompetent, and, besides, it does not appear what the answer would have been; and further, the witness was permitted to state that Zeigler did not have a general reputation to that effect. The motion in arrest of judgment was properly refused.

The court charged the jury: "In this case the State asks (699) you to return a verdict of murder in the first degree, but I will instruct you that your verdict may be guilty of murder in the first degree; guilty of murder in the second degree; guilty of manslaughter, or guilty of excusable or justifiable homicide, as you may find the facts to be from the testimony of the witnesses."

The defendants excepted to the following charge: "If you find that the defendant, Ed. Sisk, was not at fault himself, that he did not fight willingly, but reasonably apprehending it necessary to shoot and kill Zeigler in order to save his own life, or himself from some great bodily harm, he shot, he would not be guilty, and neither would the boys be guilty, although they may have been there aiding and abetting, or they may have been shooting at the time, they would not be guilty of manslaughter, although they may have been engaged in the shooting." If there was any error in this charge it was in favor of the defendants, and they cannot complaint of it.

Finally the defendants excepted, because the court did not charge the jury that "If the jury should find that the defendant Ed. Sisk did the killing, as contended for by the State, and admitted by him, and that such killing was justifiable, and they should find him not guilty, that the other two defendants, Hardy and Sandy Sisk, would not be guilty of murder in the second degree, even though they may have aided and abetted their father in the killing." There was no prayer to this effect.

The indictment was not against Ed. Sisk for murder and against the sons for aiding and abetting, but the indictment was against all three for murder in the first degree. The killing of Zeigler occurred during the armed resistance of the two Sisk boys to the arrest of Sandy Sisk under a valid and legal warrant. The evidence for the State is that they opened fire on the officers, and in the promiscuous shooting that followed Zeigler was killed, apparently by Ed. Sisk. It is not a case of homicide by Sisk, the boys aiding and abetting him, as in S. v. Whitson, 111 N.C. 695, but they were all engaged, upon the evidence, in the shooting, and if there was error in the charge of the judge in favor of Ed. Sisk, or of the jury in finding him not guilty upon the idea that so far as he was concerned he was acting in self-defense, or in the defense of his boys, this cannot inure to the benefit of the defendants, who were principals in the affair if they were resisting with weapons the service of the warrant, and began the shooting.

The idea of the jury evidently was that the father had entered the fight in protection of himself only after he had been shot in the nose, and was not guilty. This was no defense to the two defendants if they started the difficulty, and began the firing upon the officers, which resulted in the killing of Zeigler. If it is true that the father fired the shot which killed the deceased, but the other defendants began the firing and were engaged in carrying it on, they were not aiders (700) and abetters, but were principals in the unlawful shooting in which the officer was killed, and the father doubtless was found not guilty because the jury found that he acted in self-defense.

The indictment was against the father and the two boys as coprincipals. If the defendants originated the firing in which Zeiglar [Zeigler] was killed, and the boys were in armed resistance to the service of legal process, they were responsible for the homicide of the officer. So far as they are concerned, it is no defense that the officer was killed by their father whom the jury, whether rightly or wrongly, acquitted of any responsibility, presumably upon the ground that the old man's part in the fight was taken in self-defense. The verdict as to him cannot be considered by us, and it "cannot be imputed to the defendants for righteousness." If Zeigler was killed by a shot fired in armed resistance to the officers of the law, begun and carried on by these defendants, they certainly were not acting in self-defense.

The court in its charge recapitulated very fully and carefully the evidence and contentions of both sides, and charged the law applicable. He called attention to the evidence and the contention of the defendants that Zeigler was a man of dangerous and violent disposition; that he had made threats against the defendants, and that he began the shooting on this occasion. He also recited the evidence and the contentions of the State that Zeigler was not a man of dangerous and violent character, and that he was unarmed on this occasion, and that the shooting began upon the part of the defendants. Ed. Sisk went upon the stand on his own behalf, but the judge charged the jury that they could not consider the fact that Hardy and Sandy Sisk did not go upon the stand to their prejudice; that they had a right not to do so. The charge was very full and complete, and seems to have presented the case to the jury in every aspect of the evidence and all the contentions of the respective sides. The sole exceptions are those above stated.

No error.

Cited: S. v. Oxendine, 187 N.C. 662; S. v. Brown, 198 N.C. 42; S. v.Pierce, 208 N.C. 49; S. v. Harvey, 228 N.C. 65; State v. Lentz, 27 N.C. 125.