In S. v. Roane, 13 N.C. 58, a case in some respects similar to this, Judge HENDERSON commenced his opinion by saying: "If the facts stated are true, the defendant has no cause to complain of the verdict."Summary of this case from State v. Stancill
(December Term, 1828.)
1. A homicide may be justified when it takes place to prevent a threatened felony, but not when inflicted as a punishment of one already committed.
2. To justify the homicide of a felon, for the purpose of arresting him, the slayer must show not only a felony actually committed, but also that he avowed his object, and that the felon refused to submit.
The defendant was indicted for the murder of Levin, the slave of one McIntire.
Badger, for the appellant.
R. H. Jones, Attorney-General, contra.
On the trial the evidence was that the deceased, a waiter in the tavern of his master, at twelve o'clock of the night of his death, went to the lot of the defendant about one-fourth of a mile from McIntire's house. The defendant and his family were in bed, the house was locked, and the gate of the yard shut; that the defendant was awakened by the sharp barking of his dog — got up, seized a gun, opened the door, and saw the deceased going from the kitchen towards the gate, which opened into the public road; that the defendant called and asked who was there, and no answer being returned, he fired and killed the deceased as he was opening the gate. All these facts were voluntarily disclosed by the defendant upon his examination. He further stated that after the deceased fell, he procured a light and went to the body, when he first ascertained it was Levin; that he did not intend to strike the negro, but to fire above him and frighten him. After ascertaining who the deceased was the prisoner immediately went to the house of McIntire, the master, and informed him of the above circumstances. No animosity or ill will was proved to exist between the (59) defendant and the deceased, who was not in the habit of visiting the defendant's kitchen, and had no business there.
It was in proof that several out-buildings in the neighborhood had been broken open and robbed about the time that the deceased was killed, and that a good deal of alarm existed in the neighborhood, caused by depredations committed by runaway slaves.
The counsel for the defendant moved the Court to instruct the jury:
1. That if the defendant had reason to believe that a felony had been committed on his property they ought to find him excused, and not guilty of any crime, if the killing took place in endeavoring to arrest the deceased for the supposed felony.
2. That if the defendant had reason to believe that the deceased was one of the felons who had committed depredations in the neighborhood, or had committed any other felony, and refused to answer when hailed, the killing was excusable, if it became necessary to an arrest of the deceased.
3. That if the defendant found the deceased in his lot at the late hour of twelve o'clock at night, after the defendant and his family were in bed and after he had heard of the felonies committed in the neighborhood — if these circumstances, added to the fact that the person of the deceased was then unknown to the defendant — formed a reasonable ground for the defendant to believe that a felony was about to be perpetrated, the killing was excusable, notwithstanding the mistake under which the defendant labored.
4. That if the defendant did not intend to kill, but only to frighten the deceased, they should find him not guilty of offense.
His Honor, Judge DANIEL, refused to give the instructions prayed for, but charged the jury that if the defendant discharged (60) his gun in a careless, negligent and heedless manner, and thereby caused the death of the deceased, he was guilty of manslaughter, although he did not intend to kill.
The jury found the defendant guilty of manslaughter, and, sentence being pronounced, he appealed to this Court.
If the facts stated are true, the defendant has no cause to complain of the verdict; for although the state of alarm in which the neighborhood was thrown by the frequent breaking open of out-houses might have palliated the homicide, if the negro had been coming into the yard, it cannot have that effect in this case, when it appears he was going out of it. For the law authorizes the killing of one who is in the act of committing a forcible felony, and even one who appears to be in the act of doing so, for the purpose of prevention, not by way of punishment. As little grounds has the defendant to contend that his object was to arrest the person. In the first place, when an individual commits a homicide upon the ground of making an arrest, he must show a felony committed, if not by the person killed, at least by some one; and secondly, that he made known his object, to wit: that it was only to arrest — that the criminal, or supposed criminal, refused to submit, and that the killing was necessary to make the arrest. Neither can the defendant object to the charge of the Judge in regard to using dangerous weapons without due care, such as firing the gun in the present case, and causing death, although perhaps not actually intended.
But upon the whole, I am disposed to think this rather an unfortunate than a wicked case; for it appears that the whole of it is taken from the defendant's free and voluntary statement, and without which there would have been no evidence against him. I am therefore disposed to think, from what the defendant said, that there was no actual intend to kill, but only to frighten; but he certainly executed the intent in a (63) careless manner. It is, therefore, manslaughter.
PER CURIAM. No error.
Cited: S. v. Dixon, 75 N.C. 281; S. v. Vines, 93 N.C. 495; S. v. Campbell, 107 N.C. 953; S. v. Stancill, 128 N.C. 610.