State v. Harwood, 60 N.C. 228, 1 Win. 228 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 228, 1 Win. 228

THE STATE vs. JOHN HARWOOD

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Tbe prisoner was índice; in rim Suporh ; Court o! Tv. for Wake County ami tno cane was re, loved to Cm >Snpm-ior Court for Johnston County, vnereir, was tried at toe bn, ,-ug Term, 186-1. before Death Judge,

The transcript, of the r< cord from the Cnperuu Courl. oi Wake sc-n out tbe holding of the Superior Court on the first Monday aflor the fourth Monday of Seplembo!, A. D.f 1862, the return oi the venire by the Sheriff ami lito names of the jurors and proceeds in those words, “'and {hereupon, by the oath of Thomas Whitaker, ‘■broman. John Adams, &re., croud ami iaw.'ul men of tbe county aforesaid, then and ti.mv drawn from the said run.;1', ami then and íbero em-joao-'I'.-ii, sw, rn and ohm ge l to in pure for the (State of ami coi-c ail crime., and olienee oommiue ! within the body of the said cm,;1 i! n/preseiiíH inunaam : and i<mn following — tiiat is i say, the j' rors for the ¡Suite, open their oath, presen! tiiat. John Harwood, bi.'ojjoi Hake Co&o., ¡.In.rg’uy idm in dm, u-su f i .nnwii. the murder oi Joint C. Kennedy, and hue íransm-ip! sois out oís arraignment and pica of not guilty.

On his trial one Patrick, a witness for the State, nvoie that on tho day of the homicide, Dec. 12th, 1861, Kennedy, the deceased, and Harwood, the prisoner, were at Ins house in the county of Wake. The deceased ami the prisoner drank together several times and seemed perfectly friendly ; both started out of the house, prisoner going first and the deceased following him in-about a minute and a half. The prisoner went down the steps and passed to the corner of the piazza and stopped. The deceased went down tha steps and about the time he might have got to the lower portion of the steps the prisoner, who had his gun in hi* band, raised his gun, put his eye to it and fired quickly, and the deceased fell from the steps. The prisoner said nothing before he fired. The witness could distinctly sea the prisoner all the time, hut could not see deceased after he fell. The witness went out of the house and found deceased on the ground shot in the hreast; he lived hut a few moments. • The witness asked the prisoner why he killed Kennedy (the deceased).. The prisoner made n<y answer and left m four cr five minutes'after the killing.

• Miss Patrick, a witness for the State, swore she was present at her father’s house on the day of the homicide. She saw .the prisoner standing at the corner of the piazza with his gun and heard him say to the deceased, if you put yonr foot in this yard I will put this load in you. He then fired. The deceased made no answer to the prisoner’s threat and she saw no more of the prisoner that day ; she saw no arms in possession of the deceased. On cross examination this witness swore that prisoner came out of. the house in a hurry with his gun on his arm.’ Deceased came out slowly. Prisoner (who is a Texas man) had been at her father’s for some time previous to the homicide, hut witness neither saw nor heard any disturbance nor anything unfriendly between theta. In passing out of the house and towards the eastern end of the piazza the prisOner was going towards home. ,

Mrs, Patrick, also a witness for the State, swore.that she was the wife of the first witness and was at the house on the day of the homicide, and saw the transaction through a glass window in t’.ie kitchen ; deceased went out of tho house first and prisoner passed him with his gun on. his arm; as prisoner passed out' he said to deceased, if you come out I will shoot you ; he then shot deceased who felL and drew only one breath and died, in a minute prisoner was gone, ' On cross examination she swore that prisoner passed out of the house and down the steps rapidly, that as lie passed deceased he looked at deceased, but deceased did not look at him, and that, as prisoner spoke to deceased, deceased turned towards prisoner and prisoner discharged his gun at him.

. One Stancell, a witness riso for the State, swore that within an hour after the homicide prisoner came to him and 'asked him to lend him his repeater he said hé wanted it for he had killed a man and was compelled to go away. — = Witness asked, whom have you killed ? Prisoner answered, 1 have killed Kennedy. Witness asked, why did you kill him? Prisoner answered, Kennedy said if l want out he would kill me, g — d damn me, and he came out and I slammed eight buck shot into,him.

One Hinton stated that he examined the deceaséd immediately after his death, and that the load passed marly through his body, ,

The before named are the witnesses examined 'for tho £ta* . ■ No point was mode either in the examination of the wit owe- onrc the prisoner’s counsel's address to the jury as to ik< com. ,- immediate cause of the death of the deceased, or as r,o tune or place.

, ilie defendant’s counsel in his statement of the grounds o'defence, said he should contend fust, that, the prisoner was guilty of no offence, because the act of killing was committed under a temporary or permanent insanity ; or if otherwise, was excusable in necessary self-defence.

Secondly that the prisoner was guilty of manslaughter only, as there was no malice.

■ He introduced many witnesses'tólío swore to tiic prisoner’s previous good character ; some of whom swore to tho insanity of the prisoner's ancestry, and othees swore that they knew him when a boy, and that his mind-was not good; he could not learn anything, and therefore they thought his mind was unsound.

The Judge instructed the jury that if a killing takes placa, nothing more appearing,.the law implies malice, and the killing would he murder, and that in this casé there Was evidence of malice to go to the jury, to be weighed and p issed upon by them, and if < hey believed there was malice, it was a case of murder. That evidence of the prisoner’s character was permitted to be introduced, not to screen a guilty man bee mse of his previous good character; but'to satisfy the jury that notwithstanding the evidence in the cause, the prisoner is not. guilty ; and that in this case if the evidence of goo I character overcomes the other evidence agiinst the prisoner, an l satisfied them it was not-true, then they ought to fin l him not guilty.

That it was not every degree of iu.-anity that would ex-cuso homicide : that if a man knows what he is doing, and at th« same time knows that he is doing wrong, he is responsible for his aefs. i’nt if he does not, know what he is doing, or knowing what he is doing, '>e Poor uoi know that -he is doing wrong, then he would not be respons'lde. And further, that the law .¡oes n-.t recognize irresistible impulses as excuses for criminal acts which the mind of the actor recognized as wrong ; that in this case, if the prisoner w is insane to t he extent above stated, then he would not bo guilty ; an l this was equally true win"her the insanity was temporary — existing at the .time of thi-act done — or permanent. ■ -

Tao judge further charged the jury that there was no evidence tending to show that; the killing was in necessary self-defence.

That if the prisoner bad cause to believe, and did be--lieve that the deceased intended to kill him, and the prisoner killed deceased simply because of such belief, the kill-ingwould he murder ; in order to excuse or mitigate the killing, the deceased must have been in a condition actual or apparent to kill the prisoner.

That if the prisoner had good cause to believe, and did' believe, that the deceased intended to kill him, and the deceased was in apparent condition to execute such intention, andtheprisoner killed the deceased when the-prisoner might have retreated without danger of death or other great, bodily harm, then the prisoner would he guilty of manslaughter at least.

The juiy found the prisoner guilty of murder.

There vas a motion in arrest of judgment.. 1st. because the record does not show that the indictment was found a true bill' by the grand jury. 2d. The record does not show that the witnesses on whose testimony the indictment was .found, were sworn before they were sent to the grand jury.

The motion was overruled and judgment was rendered according to the verdict.

--for the State.

Winston, Cr., for the prisoner.

Mavi.y J.

The ease in the Court below seems to be set forth in the record with particularity. The evidence, as well as the charge of Cue presiding judge, seem to he full and completo.

Wi have examined these hi connexion with each other, and are of opinion that the .chavge is applicable and ie-sponsion to evi-ry view which can properly he lal-cn <>1 the evidence, and that tl e pen,oner hVs no cai.se oí' cc n j hunt.

Wó have had no particular part of the charge called to our attention by way of exception, and' suppose there is none in the view of prisoner’s counsel that affords ground for such criticism. - .

The principles propounded to the jury in the Court below, whether they relate to the . grades of homicide or the question of insanity, have been so frequently discussed in this-Cpurt, down to a recent period, that we deem it unnec-' 'essary to repeat them now. They consist with what we regard as the settled and established law of the land.

The grounds talren in arrest of judgment are not ¡enable. These are also settled against the prisoner by recent adjudications in this Court. '*

State vs. Guilford, 4 Jones, 83; State vs. Roberts, 2 Dev. and Bat., 540; State vs. Barnes, 7 Jones, 20.

The record upon which the judgment* below was pronounced, as stated by the Court, follows the precedent in the appendix to 4 Blacks. Com. This has been adopted by Mr. Eaton in bis book of forms, ami approved in this Court, as will be seen in the case of the State vs. Guilford.

The prisoner was tried for a homicide which, for aught that appears, was unprovoked and wanton. He has had fhe benefit; of every proper. safe-guard afforded by the C urts under the rules of law, and the record sent to this Court seems to be free from defects. • * .

This opinion 'must be cortiiied to the Superior Court of law for Johnston County that it may proceed1 to pronounce judgment according to law.