State v. Garrett, 60 N.C. 144, 1 Win. 144 (1863)

June 1863 · Supreme Court of North Carolina
60 N.C. 144, 1 Win. 144


Where a defendant in a State's-warrant, charging a misdemeanor, pat himself in-armed resistance to the officer having such warrant, and the officer, in an attempt to take -defendant, slew-him, without resorting to unnecessary violence, it was Ueldr that lie was justified.

The principle of self-defense does not apply to the case of' one who puts himself in the posture of armed defiance to the process of thb State.

Gne to whom, a State’s warrant is specially directed, is bound to show it, and read it, if required; but whore the defendant, in such warrant, had notice ■ of the process, and was-fully aware-of its contents, and had made up his mind, beforehand, .to resist its execution, it was 7ieW-that the officer did' not become a trespasser.ab initio,, by refusing to produce his warrant on demand..

This was an indictment for murder, tried before Saueders, . J'., at the Ball Term, 1862; of Buncombe Superior Court.

The defendant, William B- Garrett, and the other defendants, ten in number, were p-ut upon-their trial for the -murdbr-' of Uriah G. Burns.

Mwah Burns, the widow of the-deceased; was sworn on behalf of the State; and testified that on Tuesday, 2nd of June,,. 1862, Garrett came-to the other side of the creek-near where; *145she lived ; that her husband had gone into his field with his gun ; that she heard Garrett call to him and tell him he had a warrant against him ; that deceased asked to see the warrant or hear it read, both of which Garrett refused, but demanded that the defendant should submit; that the deceased proposed to send his daughter to read it, which also was refused .by Garrett ; that deceased then told Garrett, he had no right to arrest him, but if the sheriff or coroner would come with the warrant he would submit; that on the next day Garrett and the other prisoners, with a half dozen other persons, came to the house of the deceased, all armed ; that when getting within two hundred yards, they arrested John Burns, tiie son of the deceased; that deceased, herself and their daughter, went out to see what was the matter. The deceased having his gun, met the party in the lane, where Garrett again told him he had a warrant against him, but refused to show, or read .it; the deceased again told him that he -and his party were his enemies, and they were a d — d set of tories, and he would not be arrested by them; that none but the coroner had a right to arrest him, as he was a deputy sheriff; that Garrett and all his party presented their guns, but she cried out for them not to shoot, to which Garrett replied, he would not shoot if Burns would not; that Bob Burchfield was 150 yards off and came up after her husband was killed; that when her husband was shot he had one foot on the fence and muzzle of the gun down and not pointed. The solicitor for the State here rested the case.

The prisoners’ counsel then produced the States’ warrants on which' Garrett acted ; they were in proper form, and on tiie back of them was a regular deputation, these were for an assault and battery on Adeline Burns, and to hold them to the peace in behalf of tiie said Adeline Burns, and were against Uriah 0. Burns and his wife and son and daughter.

Adeline Burns was then introduced for the defendants, who stated that the deceased, his wife and son, committed a violent assault and battery on her person, and she applied to a justice of the peace for warrants, and having obtained them, *146she offered them first to one and then to another deputy sheriff of the county, who refused to take them; she then applied to Garrett, who refused to take the papers unless he was regularly deputed by the sheriff, which was done ; she further stated, that she witnessed what passed at the creek between Garrett and Burns, on which Garrett informed Burns of tiie warrants in his hands, but he declared he would not submit; that no one had a right to arrest him but a coroner or sheriff.

James Wiggins testified to the issuing of the warrants, the deputation and that the justice swore Garrett to execute them faithfully; that on meeting at his house the night before, Garrett gave the posse, summoned by him, certain instructions touching the execution of the warrants, which it was proposed to prove, but being objected to by the solicitor for the State, the Court refused to admit it for the present.

Reuben Hodge testified, that the deceased advanced to the lane where Garrett and his guard were ; that he had his gun, his wife an axe, and his daughter a knife; that the deceased pointed his gun at the. parties three times as he went to the fence; that he presented it in getting on the fence ; that ho heard the cry, “ don’t shoot,” and heard no one say, “ shoot.”

8. P. Miller testified, that he was at Wiggins’ the night before, and told Burns they were coming to arrest him, when he declared he would not be arrested by them ; that the party first arrested John; that when witness first went to the parties, in the lane, Garrett and Burns had their guns pointed at each other; that Garrett said, “ if you wont shoot I wont;” who pointed first, witness could not tell; they then lowered their guns; Burns then turned towards Sam. Birchfield, who was about ten yards off, and said, “I will get you,” at the same time advancing towards the fence with his gun pointed towards Birchfield, who then got behind some bushes ; that as Burns was in the act of getting over the fence with his gun in left his hand, and not pointed at any one, he heard Morris say, “ damn him, shoot him, or he will shoot some of us;” that on the instant, Birchfield fired and Burns fell. Witness could not- tell whether Burns, in getting on the fence, was pursuing *147Birchfield, or was going to his son ; that he heard Garrett say to Burns, as he turned from him, “ if you shoot any of my guard, I will shoot you.” Witness doubted whether Birch-fiield could have retreated from his position without exposing himself to Burns’ firehe heat'd Burns’ daughter say, she would kill Garrett, and she did cut Watkins across the mouth with an axe after Burns was shot.

There was contradictory evidence as to the temper and disposition of Burns; some of the witnesses represented him as a violent man, while others said he was a man of spirit, but not violent. It was proved that Garrett and Burns were on friendly terms, except that Burns regarded Garrett as unfriendly, but that between BirchfieM and Burns, though they were brothers-in-law, there was a deadly enmity, and the same kind of feelings existed between Burns and Morriss. It was also in proof that Burns said, he would not be taken by a damned pack of tories. In reply to this, the [States’ counsel offered to show that Burns so regarded the defendants; this was objected to by the prisoners’counsel, but admitted by the Court, who remarked that he would hear nothing about wi-ion and tory. Defendants’ counsel excepted. The’ defendant having closed, the State, by permission of the Court, resumed its examination in chief.

One Gibbs testified, that a few weeks before the homicide, he heard Birchfield sa3r, he had shot Barns and thought he had done for him, but if not, he would do so on the first opportunity. Two female witnesses, who were present when this conversation is alleged to have taken place, said no such remarks were made by Birchfield. It was in evidence that Morris, when drunk, had made threats against Burns.

His Honor in charging the jury, said, 1st. That no one was bound to accept of an office against his will; that a deputy was bound to show his warrant, or have it read, when demanded.

2. That the warrants, in this case, being for a misdemeanor, and not for a felony, gave the prisoner, Garrett, no authority, ©r any of his numerous guard of eighteen, all armed, to take *148away life, by the use of a deadly weapon, in order to execute his warrants.

8. The deceased, whilst he had a right to defend himself, had no right to use a deadly weapon, unless in self-defense of his life, where he had reason to believe his own life was in danger, and this was for the jury to decide from the evidence.

4. If Samuel Birchfield took the life of the deceased, by shooting him, when there was no pressing necessity for doing so, he would be guilty of murder.

But if at the time of shooting, the jury should think he had reason to believe his own life was in danger, and he had no means of saving his life without exposing himself to the peril of his adversary, he had the right to act in self-defense, and could not be guilty.

6. If Morris or Garrett encouraged Birchfield to fire, if the}r did so encourage him, when this pressing necessity of self-defense did not exist, they, too, would be guilty of murder. The defendants excepted to this charge. There are other matters in the charge not excepted to, and, therefore, they are not set out.

Verdict of guilty of murder as to W. B. Garrett, John Morris, sen’r., and R. L. Birchfield, and judgment of death pronounced against them; and verdicts of guilty of manslaughter, were rendered against six others, who were sentenced to imprisonment for six months, but were permitted to escape impri-soment by entering into the army. Two of the defendants, J. H. C. Morris and J. M. Morris, were acquitted. W. B. Garrett, John Morris, sen’r., and Robert L. Birchfield, appealed to this Court.

Attorney General, for the State.

No counsel for the defendants.

PeaesoN, C. J.

His Honor charged “ the warrants in this case, being for a misdemeanor, and.not for felony, gave the prisoner, Garrett, no authority, or any of his numerous guard of 18 men, all armed, to take away life, by the use of a deadly *149weapon, in order to execute his warrants.” We do not concur iu the proposition of law, which his Honor here lays down ; on the contrary, after mature reflection, we are satisfied, not only that it is erroneous, but would make the due administration of the law impracticable.

These facts are not controverted: State’s warrants and peace warrants had been duly issued against the deceased and his wife and son and daughter, for an assault and battery on Adeline Burns; for the want of a regular officer, the sheriff duly deputed the prisoner, Garrett, to execute the warrants and arrest the defendants; Garrett goes to the, deceased and notifies him that he has the warrants, whereupon the deceased, having his gun, refuses to submit, but says he would let the sheriff or coroner serve the warrants. Garret, thereupon, retires, and on the next day, having summoned eighteen men, they ail go, armed with guns, to the premises of the deceased and arrest the son, whereupon the deceased, his wife and daughter, he armed with his gun, and they with an axe and knife, sally out from the house and meet the party in the lane; guns are several times pointed on both sides; the deceased starts to cross the fence and is shot by one of the guard.

His Honor ought, to have instructed the jury that, as the deceased had put himself in resistance to the officer and his guard, they were not only authorised, but were bound to use such a degree of force as was necessary, in order to execute the warrants, and were entitled to a verdict of acquittal on the ground, that the homicide was justifiable, if no unnecessary violence had been used, unless from the fact,' that the prisoner had started to cross the fence, the jury should be satisfied that he had abandoned his deadly purpose of resisting to the death the execution of the law, and was attempting to make his escape by moving off; in which event, there was no longer any necessity for shooting, and the officer, or some portion of his men, should have run after him and captured him in that way, and in passing on this question, it was for the jury to determine, whether the intention of the deceased, *150in attempting to cross the fence, was to make an attack on Birchfield or to rescue his son, or run away; and in the latter-case, if he still retained his purpose of resisting to the death, and to make a rmining fight, the officer and bis men were not bound to risk their lives by rushing on a desperate man, who still kept his gun in his hands.

This conclusion is so fully sustained by the necessity of “ preserving good order.and asserting the supremacy of the-law,” as to make it unnecessary to cite cases. In the execution of a Stale’s warrant for treason, felony, or a breach of the peace, the sacredness of the Lord’s day, is to be disregarded ; the d\ye]ii®g4M?n9«, (ok castle as it is termed in the books) mta-stobeffirpheip inj|<8,*-aad, §ve&>y thing done, which is necessary, in order to tQXeci^to: the* wárraKffc In other words, resistances to fhe,executi'Q». of the ebnamand of Jhe State, is not allowed*! The warrant peaceably, if yore can, foreiblyff ytni must.,;-, * 4l

Therewe-ofh©r-péj¡nts"jto. which \P®-'J!Piphnot¡*l,efer, because, from the meaner -is wkich-the case is madsThp, we are not satisfied that wasclearly ajp-preh-enflktheiBi: It is proper, however, to say that we caift •eeTS-ra£)--®vidgnce‘, by a perusal of the-record, to justify this charge : “The deceased, -whilst, he-had a right to defend himself,, had no right to use a deadly weapon, vmless- in self-defense of Ms life.” When a man puts him¡self in a state of resistance, and openly defies the officers of the law, he is not allowed totake ad vantage o>f his own wrong, if his life is thereby endangered, and to set up the- excuse oí self-defense. Again, one who is not a known officer, ought to show his warrant, and read it, if required, but it would seem that this duty is not so imperative as that a neglect of it will make him a trespasser ah where there is proof that the party, subject to be arrested, had of the warrant, and was fully aware of its contents, and had made up his mind to resist its execution at all hazzards. There is error-

Pee Cukiam, Judgment reversed-