State v. . Heavener

after stating the case: We will consider the exceptions in the order of their statement by the appellant.

Exceptions 1 and 2 were taken to the rulings of the court excluding evidence offered by the prisoner. The questions, to which the State objected, were in fact answered, so that no harm was done. Besides, these assignments of error are not mentioned in the prisoner's brief, and are, therefore, to be considered as abandoned by him, under Rule 34 of this Court (164 N.C. 551), which provides: "Exceptions in the record not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." S. v. Smith,164 N.C. 476; In re Will of Parker, 165 N.C. 130.

The third exception was taken to the testimony of Dr. F. T. Ford, that the deceased had tuberculosis for several months before his death, accompanied by a cough and the loss of his voice. But this was competent to show that he was not a strong man and able to cope with the prisoner in their struggle when he was shot. The prisoner testified that "Huffman was a tall man, some taller than he was, and must have weighed something like 50 pounds more than he," and this matter, as to the comparative strength and physical ability of the two men, was gone into more fully in the course of the trial. It was, therefore, relevant to show, in rebuttal of the prisoner's testimony, which was intended to produce the impression that he was inferior in strength to his antagonist, that this was not the case, but that the deceased was in such a state of health as to be much weakened thereby, and to the extent of losing much of his original and natural power and vigor as a man, which his height and general build would seem to indicate. "It is competent to show (162) the state of deceased's health at the time of the killing." 21 Cyc., 911. In S. v. Hough, 138 N.C. 663, it was held that evidence of the size and strength of the deceased could be considered for the defendant, in passing upon the plea of self-defense. The converse must be true, that the State may also have the benefit of it upon a similar plea. It goes to the question, whether the prisoner was justified in his apprehension that he was about to be killed or to receive great bodily harm. Reviewing this general principle, it is thus stated in 21 Cyc., at p. 911:

"Physical Condition of Parties — Admissibility in General —On Part of Defendant. — Evidence as to the relative size, strength, and physical condition of the parties to a homicide is admissible in behalf of a defendant only when the proof establishes a prima facie case of self-defense, or a predicate has been laid therefor by proof that at the time of inflicting the mortal wound defendant had been attacked by the deceased, and in the absence of such proof it is incompetent.

"On Behalf of State. — It is also proper for the State to show the relative physical strength of the parties; and while the rule requires that the inquiry should be general and not leading, with a constant view to avoid the introduction of irrelevant matter, the State may prove the age of the person assaulted as tending to show the fact of disparity of strength, or that he was intoxicated at the time and unable to make or resist an attack. It is competent to show the state of deceased's health at the time of the killing, or to show the mental and physical condition of the deceased immediately after receiving the mortal wound."

It was for the jury to say whether, in his physical condition, he apparently was weak or strong, capable or incapable of overpowering the prisoner in their combat, or of successfully resisting his attack. S. v.Thawley, 4 Harr. (Del.), 562.

We will consider the fourth assignment, though, in connection with the fifth, which is based upon an exception to the testimony of E. Q. Dellinger, as to the place in the store where the deceased kept his pistol. The witness stated that he did not know where it was kept at the time of the homicide, but two years before he saw it in his show case at the store. He was not permitted to say what he was doing with it at the time he saw it. We do not perceive how this evidence, if incompetent, which we do not concede, was harmful to the prisoner. Jurors are presumed to be intelligent, at least, and they are not likely to attach any weight or importance to a fact that has no probative force whatever with respect to the issue in the case. This kind of proof was held to be admissible inLillie v. State, 100 S.W. Rep. (Neb.), 316; but we put our decision upon the ground that, if there was any error at all, it was not prejudicial, and too insignificant to induce a reversal of the judgment. It could not possibly have any influence upon the jury in deciding the main issue as to the guilt of the prisoner. That he had a pistol and (163) used it with fatal effect is not questioned. There was practically no evidence of preparation beforehand to commit the crime. It was the result of a sudden quarrel, in which both engaged willingly, it seems, and the general evidence is of such a character as to exclude the inference that this attenuated fact had any part in producing the verdict. What we said inS. v. Smith, supra, is very applicable and cannot be too often repeated or too highly commended: "A defendant is entitled in law to hear the particular accusation against him; to have the prosecution restricted to that accusation, and consequently the proof, and not to be convicted of any other offense than the one specially charged in the indictment. This is his natural and constitutional right. But there must be prejudicial and not merely theoretical error. Verdicts and judgments should not be lightly set aside upon grounds which show the alleged error to be harmless or where the appellant could have sustained no injury from it. There should be at least something like a practical treatment of the motion to reverse, and it should not be granted except to subserve the real ends of substantial justice. Hilliard on New Trials (2 Ed.), secs. 1 to 7. The motion should be meritorious and not frivolous. The commentators on New Trials, Graham and Waterman (Vol. 3, page 1235), thus state the prevailing rule: `The foundation of the application for a new trial is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered, there is nothing to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, the simple fact of defeat is, in one sense, injurious, for it wounds the feelings. But this alone is not sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss or the probability of loss there can be no new trial. The complaining party asks for redress, for the restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing the injury; otherwise the interference of the court would be but nugatory. There must be a reasonable prospect of placing the party who asks for a new trial in a better position than the one which he occupies by the verdict. If he obtain a new trial, he must incur additional expense, and if there is no corresponding benefit, he is still the sufferer. Besides, courts are instituted to enforce right and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose. They will only interfere, therefore, where there is a prospect of ultimate benefit.' Tried by this rule, we do not think any reversible error was committed."

The evidence here may have been competent as tending to show that the defendant was not afraid of the deceased, knowing that his pistol was all the time easily accessible to him, within the reasoning of S. v. Kinsauls, 126 N.C. 1095. In addition to what has been said, it (164) may be remarked that the objection to Henry Shepherd's testimony, as to the pistol, seems to have been made after all of the evidence was in, or had been heard, and there was no ruling upon it. Tyson v.Tyson, 100 N.C. 360; Scroggs v. Stevenson, ibid., 354; S. v. English,164 N.C. 498. The other part of his evidence, to which exception was taken, the court excluded, and expressly instructed the jury not to consider it.

The court properly overruled the motion to nonsuit, or what is equivalent to the same thing, to direct a verdict for the prisoner, which was the subject of the sixth exception. The second prayer for instructions was also properly refused, because it requested the court to charge that the prisoner was not guilty of murder in the second degree, and he was acquitted of that offense, so he got by the verdict what he wanted, without the instruction, and this rendered the supposed error harmless. S. v.Worley, 141 N.C. 764. But there was no error in refusing the instruction, as there was ample evidence to support a verdict of murder in the second degree, if not in the first degree; and, besides, the killing with a deadly weapon having been admitted, malice was presumed, and the burden was upon the defendant to show facts and circumstances which would reduce the homicide from murder in the second degree to manslaughter or excusable homicide. S. v. Brittain, 89 N.C. 481; S. v. Simonds, 154 N.C. 197; S. v.Rowe, 155 N.C. 436; S. v. Yates, ibid., 450.

There was strong evidence to the effect that if defendant shot in self-defense he used more force than was necessary to resist the attack and protect himself, the question of excessive force being for the jury. The evidence, therefore, supports the verdict for manslaughter. S. v. Quick,150 N.C. 820.

The last three exceptions, directed against the refusal to give the third, fourth, and fifth prayers for instructions, as to defendant's reasonable belief that he was in danger, were substantially given in the charge, and the prisoner was there accorded the full benefit of the principle of self-defense, as stated in S. v. Turpin, 77 N.C. 473; Com. v.Selfridge, Har. and Thompson Cases on Self-defense, p. 1; S. v. Nash,88 N.C. 618; S. v. Barrett, 132 N.C. 1005, and the many subsequent cases approving them. He told the jury that, "If a man believes one in pursuit of him has something (deadly) in his hand, whether he has something in hishand or not, if the man honestly believes and has reasonable grounds to believe — that is, reasonable ground to apprehend, and he does apprehend — that he is in danger, then and there, of suffering death or great bodily harm, and fires his pistol under these circumstances, he is not guilty." This was quite as strong and broad as the prisoner's own prayer, and certainly it comprehended fully as much.

(165) There was very little evidence that the deceased was assaulting the prisoner with a deadly weapon, or that the latter had any reasonable ground to think so; but the jury gave him the benefit of the doubt, and a most favorable construction of the evidence, and he has not the slightest ground to complain of the verdict. His attack upon the deceased was cruel and merciless. After he had practically rendered him helpless, he continued to fire upon him. This was excessive force, and called for a verdict of manslaughter at least. There are strongly extenuating circumstances, not in law, but morally, upon the question of punishment — the gross and vulgar insult to the prisoner's wife and the aggressive conduct of the deceased. But for leniency he must appeal to another department of the Government.

A most careful review of the whole case has satisfied us that no error was committed on the trial.

No error.

Cited: In re Craven, 169 N.C. 564; Schas v. Assurance Society,170 N.C. 424; Smith v. Hancock, 172 N.C. 153; S. v. Davis, 175 N.C. 729; S.v. Beal, 199 N.C. 303; S. v. Caudle, 201 N.C. 86.