State v. Sumner, 130 N.C. 718 (1902)

June 10, 1902 · Supreme Court of North Carolina
130 N.C. 718


(Filed June 10, 1902.)

1. HOMICIDE — Evidence—Character of Deceased as a Violent and Dangerous Man — Particular Character. ■

In an indictment for murder, tliere being evidence tending to show that the killing may have been done from a principle of self-preservation, it is competent to show the general reputation of the deceased for a particular character for violence, if such character was known to the defendants.

2. HOMICIDE — Evidence—Character.

In an indictment for murder it is not competent to show that the deceased had difficulties with other persons than the prisoner.

INDICTMENT against Zeb. Sumner, heard by Judge Thos. J. Shaw and a jury, at April Term, 1901, of the Superior 'Court of MacoN County. From a verdict of guilty of manslaughter and judgment thereon, the defendant appealed.

*719 Robert B. Gilmer, Attorney-General, for the State.

Shepherd- <& Shepherd, for the defendant.

Coon, J.

Prisoner was indicted for the murder of one Ledbetter and convicted of manslaughter and sentenced to serve a term of five years ini the Penitentiary. The uncon-tradicted evidence shows that deceased was a man of dangerous, violent, bad character, especially when drinking, and that he was drinking on the day of the homicide. That upon four occasions previous to the day of the homicide deceased,without apparent provocation, violently abused and, cursed prisoner and sought to provoke a difficulty with him. Upon the day of the homicide deceased cursed and abused prisoner in the' court-house and followed him, with a knife upi his sleeve, to, the Clerk’s office, and thence to the Register’s office, and thence out of the court-house as far as Trotter’s store, wheu prisoner stopped,: for fear. of being cut in the back, and warned deceased do go away, when deceased remained cursing prisoner, calling him a damn coward, and using other insulting language, when the town Marshal came along, and prisoner said to him, “I make charge against, him (meaning deceased) for. being drunk and disorderly.; take him and lock him up. He has followed me all day and I don’t want to hurt him.” Deceased said to the Marshal,. “God damn you, I would like .to'see you arrest me.” The Marshal said-he “did not see that either had. done anything to he arrested for,” so he did not interfere. But deceasedis brother came up and. carried him aWay. One bystander said to prisoner, “I would kill a man that would treat me that Way,” to which' prisoner replied, “By the time you have been locked up for murder, you Would decide that it is best not to kill a man.” Shortly thereafter prisoner armed himself 'and went up the street attending to some business, and while standing upon the street, as prisoner testified, one Palme? said, “George (meaning de*720ceased) has been cursing and abusing you again. * * * There comes George again,” and George (deceased) came up and said, “You say you have nothing against me ?” and prisoner said, “George, I have told you this time and again that I have nothing against you,” and deceased said, “Well, give me your hand.” Prisoner extended his hand towards him, and deceased dropped his hand and said, “No, by God, wa will go to the court-house and talk this thing over.” After some other words deceased stepped one foot back and put his hand back, as it appeared, in his right hip' pocket and pushed his left hand down in his left pocket, and being standing “right up against me,” prisoner drew one pistol and opened fire upon him, firing four shots in rapid succession, when deceased walked off in a staggering way, and, looking back at prisoner, with his hands near or about his hip pockets, while about ten or fifteen steps away, prisoner drew another pistol and fired twice, inflicting the mortal wounds with a 44 pistol, .at which time, prisoner testified, deceased Was trying to draw a pistol, which1 he saw (and which was afterwards found in his pocket). Prisoner testified that he had been told by everybody about deceased’s character as a dangerous and violent man, and had been warned that he would Walk up» to a man and ask him for his right hand and stick a knife in him with his left hand; and he had been informed that he had cut Lee Allman that way, and had cut Chas. McGee’s son that way, and that he had mistreated James Potts and tried to take advantage of him and kill him. There were several witnesses who testified that they had heard deceased threaten to' kill prisoner, and that some of these threato had been communicated to him before the homicide. Some of defendant’s witnesses testified that, during the firing of all the shots, deceased was endeavoring to draw his pistol. Some of the States witnesses testified that they did not see him attempt to draw his pistol, or have his hand in or at his hip pocket, but that his *721band was on the outside of his coat on his hip- or side — some saying one way, some another.

Prisoner offered to prove by Potts, Ed. McGee and Chas. McGee, certain individual difficulties the deceased had with them, which was properly excluded upon, objection by the State. Prisoner offered to prove by Potts and Ed. McGee that deceased had “the reputation of being a man who would take the advantage of another, representing, himself to be his friend and get the advantage of him and do him some bodily barm, making out at the time that he was his friend,” which was, upon objection by the State, excluded, to, which prisoner excepted. This raises the question whether it is competent to show a general reputation for any particular character for violence, and if so, was it material to the issue joined by the plea of not guilty ?

The rule is that “evidence of the general character of the deceased, as a violent and dangerous man, is admissible where there is evidence tending to show that the hilling may have been done from a principle of self-preservation, and also where the evidence is wholly circumstantial, and the character of the transaction is in doubt.” State v. Turpin, 77 N. C., 473, 24 Am. Rep., 455; State v. McIver, 125 N. C., 645. This rule varies from the general rule as to' proving general character in that it permits certain particular traits of character to be shown. The reputed character of deceased may be evidential as indicating the prisoner’s reasonable apprehension of an attack, for in a quarrel his violent or turbulent character, as known to the accused, may give to’ his conduct a significance of hostility which would be wanting in the case of a man of ordinary disposition. 1 Greenleaf Ev., Sec. 14c. In State v. McIver, 125 N. C., 645, the Court held it to be competent to show that deceased was a man of “vicious temper and violent when he got angry,” thus particularizing his peculiar trait and condition under which he became vio*722lent. The principle upon which the admission of this kind of evidence is based is to show to the jury the reasonableness of the apprehension upon which the accused acted. It is admissible to explain and excuse the use of violence ordinarily inexcusable. Under some cireumstances, violence used upon a peaceable, quiet man, though of generally bad character, would be inexcusable, while under the same circumstances, if used upon a man of generally good character, though bad for violence under certain conditions (such as when under the influence of liquor, etc.), would be excusable. A man may have a bad character generally, but good in some particulars, .such as for truth,, or generally bad, but good for peace, sobriety and industry. A man may have a character bad for .some kinds of violence, while not bad for other kinds. So the principle upon which the character of the deceased is admissible, in a case of homicide, is to show that the accused had reason to apprehend danger or violence from deceased, which apprehension would be excited by the: particular conditions under which deceased was reputed to be dangerous and violent. If bad only when drinking, then no apprehension would exist when he would be sober; if bad for using a knife, then no apprehension would exist when out of reach.

In the case at bar, the prisoner testified that he had “been told by everybody about deceased’s character as a dangerous :and violent man, and had been warned that he would walk up -to a man and ask him for his right hand and stick a knife in 'him with his left hand.” And he also1 testified that, upon the occasion of the homicide, deceased said to him, “Well, give me your hand.” Now, then, if such were his general character, and knowing of his threats, why should not the prisoner, under such conditions, have then and there apprehended serious danger ? and upon an overt act of aggression, such as putting his hand in his pocket or upon his hips, and having such apprehension, should he have waited longer and taken *723tbe risk of tbe danger be might- reasonably have apprehended would follow? But bis reputation, if snob be bad for this particular kind or practice of violence, or this particular trick m executing violence, was excluded from tbe jury, and they were not informed of such, if such existed. If such were tbe reputation of deceased, then tbe apprehension of prisoner would have been naturally excited, and, upon evidence of aggression by deceased, prisoner would have understood what it meant and defend himself accordingly. But tbe evidence having been excluded, tbe jury could not intelligently judge as to tbe reasonableness of such apprehension upon which prisoner acted, and upon this bis fate depended. Tbe verdict ■ was to be based upon wbat tbe jury would think reasonable, and not wbat tbe prisoner thought, and not being furnished with this evidence they could not interpret bis conduct in tbe light of tbe situation as be actually saw it. Therefore, this evidence was material to- explain bis sudden and extreme violence when deceased “stepped one foot back” under those circumstances.

Prisoner bad testified that deceased did have such general character, and be bad been warned of it. Then, it was competent for him to show that such existed, for it may be that bis apprehension was founded upon it, and of that tbe jury should say whether it was or was not reasonably founded. Eor tbe errer in excluding this testimony, a new trial must be granted. There are several exceptions taken to tbe charge, but- we deem it unnecessary to pass upon them.

New Trial.