State v. . Cole , 132 N.C. 1069 ( 1903 )

CLARK, C. J., dissenting. The prisoner, was indicted for murder, as follows:

The jurors, etc., present that Joe Cole, Joe Cole, Jr., and John Jones, late of the county of Vance, on 29 September, 1902, with force and arms, at and in the county aforesaid, feloniously, wilfully and of their malice aforethought did kill and murder Fred. Stevens, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.

The jury found Joe Cole guilty of murder in the first degree, and Joe Cole, Jr., and John Jones guilty of murder in the second degree. Sentence of death was pronounced upon Joe Cole, and he appealed.

The evidence was as follows: W. P. Clements testified for the State that he was on the train leaving Manson: "I got on the rear of the second-class car for white people, and went through and found the darkies singing boisterous songs, and I said: `Boys, you are in the wrong car; you will have to go to your car.' There were six or seven, including the two Coles and Jones. They paid no (1070) attention. I tapped little Joe on the shoulder and repeated what I had said. He replied: `By God, we will go when we get ready.' I then went out, opening the door of the white car, and opposite the door of the colored car, telling them to come on. I went to the front end of the colored car and started back, taking up tickets. The car had three compartments — first-class, second-class, and smoker. The last was next to second-class car for whites. When I reached the first-class compartment I met all the crowd coming back, muttering : `We have first-class tickets and how is it we are driven round this way?' All passed through the second-class car except four, old Joe, little Joe, Jones, and another. I started to pass, when little Joe, Jones and the other, whose name I do not know, caught hold of me and said: `How is this? We've got first-class tickets and we are driven round this way; how is it?' I explained that it was a State law, and the railroad had nothing to do with it. Old Joe (the appellant) just then entered the first-class compartment from the smoker. He came on, saying something, I don't know what, a sort of roaring. The first I caught was: `We are all friends, we are all brothers; we'll all fight for one another, and we'll all die for one another.' While he was saying that, Mitchell, my porter, was standing by, patting him on the shoulder, and said, `Let captain explain.' Old Joe lunged at me to hit me with his fist. The porter then hit him in the chest with his hand and prevented his hitting me. He staggered back against the smoking-room door and drew his pistol. The porter then rushed on him and pushed him back into the front left-hand corner of the smoking-room. At that time, little Joe, Jones, and the other one shoved me in the smoking-room with them. I straightened up and saw old Joe Cole shove the porter off with his left hand and raise his right hand. He did that twice. There was a pistol in his right hand. Then little Joe tackled the porter with a pistol in his hand. The porter turned and (1071) left old Joe free. Then Stevens entered the back door of the car and ran up to old Joe to grab him, his head to one side and his eyes shut. He touched old Joe with his hand, but did not clinch him. Just as he was about to hit old Joe and before he struck him, Cole raised his pistol, put it in Stevens' face and shot him. Young Joe then shot the porter. I think he shot the porter first. He halloed, `I am shot.' Jones got his pistol out, but did not use it. He helped push me in the smoking car. From the time I left them in the white car until I met them in the colored car was not less than two nor more than four minutes. This occurred in North Carolina about one and a quarter miles north of Middleburg, in Vance County, on 17 August, 1902, at 2:15 p. m. Stevens was roadmaster and my superior. Jones had a pistol; didn't try to do a thing that I saw or heard. It was on the Raleigh and Gaston Railroad. Stevens was not roadmaster of that part of the road where this occurred, and had no jurisdiction over me there. Stevens was a stout man (as large as Mr. B., one of the counsel); he rushed on Joe with head turned to one side, with his eyes shut. Then this man pushed his pistol in his face and fired. Stevens came from the white car. He had not talked with either of these persons that I know of. The prisoners were from Lynchburg, Va., and got on my train at Norlina. They acted like they had been drinking, and I thought they had. Jim Mitchell is in the Rex Hospital in Raleigh."

Sam Newsome testified for the State: "These men got on at Norlina. At Ridgeway they became offensive in the second-class colored car. Just before we got to Manson they passed through the first-class colored car and went to the white car, singing. After we got to Manson, Captain Clements came through my car, first class colored, taking (1072) up tickets. Joe Cole met the Captain in the first class car and said: `You turned my son and the rest out of the car and we've got first-class tickets.' He put his hand behind him, and a colored woman said, `He is going to shoot.' He drew his fists, then the porter came up and took him by the arm and talked to him, saying, `Conductor will explain,' and got him back in the smoker. Two others passed behind the conductor and got in the smoker. I went to the smoker door. Young man Cole told the porter to turn his father loose, took out his pistol and shot the porter, who refused to do so. About that time the roadmaster (Stevens) came in from the second-class white car and went to take old man Cole, who shot him with a pistol. Old Joe was standing up when he shot, and nobody had hold of him. Captain Clements was on the right-hand side of the smoker when the porter was shot. I saw nothing done to the prisoners. I would have seen it in that car. Clements and the porter had no pistols. I saw the old man and the young man have pistols. The old man here is the man. I recognize him. Stevens was killed; was dead when he hit the floor, shot in the head. There were other passengers on the train in the second-class car, and some in the car we were in."

Isaac Steinheimer testified for the State: "I was on train in first-class coach for whites; heard of the shooting and went forward. At rear end of the colored coach I found Turner holding the two Coles, who were trying to escape. They were on bottom step of the platform. Gun was called for. I got one and assisted in securing and tying them. I took pistol from old Cole's pocket. It had been recently fired. No pistol was found on young Cole or Jones. I didn't see the trouble at all and knew nothing of it until it had ended. I got the pistol and cartridges of the old man."

J. B. Brack testified for the State to finding a pistol near a point where he understood the train had stopped after the shooting, between Rowland's and Twisdale's places. It was the day (1073) after the shooting, about 1 o'clock p. m.

Captain Clements recalled: "The train stopped after the shooting between Rowland's and Twisdale's places, about a mile and a half north of Middleburg. From Manson to Middleburg, four or five miles. Schedule time between these stations six minutes. The second-class car for whites was nearly full of passengers. I knew a good many of them and can name several now" (which he did). The prisoner was convicted of murder in the first degree and moved in arrest of judgment. The motion was overruled, and the prisoner appealed from the judgment pronounced. The first question raised on the appeal for the consideration of the Court is, whether the bill of indictment is sufficient in substance and form to support the finding by the jury of murder in the first degree.

The indictment is in the form generally used in this State, and did not charge that the killing was done with premeditation and deliberation. The contention of the prisoner's counsel is that section 3, chapter 85, Laws 1893, conflicts with section 11, Article I, of State Constitution, and that therefore the statutory provision must be declared void. It is ordained in that article of the Constitution that "in all criminal prosecutions every man has the right to be informed of the accusation against him." . . . Laws 1893, ch. 85, does not deny to the accused that right. Murder was the charge made against the prisoner. He knew (by fiction of law, at least) that prior to the act of 1893 it was not necessary either to aver or prove deliberation and premeditation as to the killing. It was sufficient if malice was shown. The act of 1893 was to that extent favorable to those (1074) who, after its enactment, might be indicted for murder. But such as might be, after that time, indicted for murder were informed by section 3 of the act (notwithstanding the advantage given to those charged with murder) that the form of the indictment in use in the State would not be altered, and that the jury upon the evidence should determine in their verdict whether the crime was murder in the first or second degree, premeditation and deliberations being the features which constitute murder in the first degree. The very words of the act give a clear notice of the form of indictment to be used, and what could be shown in evidence by the State, and the duty and power of the jury to inquire into and weigh the evidence and to determine whether the homicide was committed with premeditation and deliberation. Our statute, then, does not change the quality of the crime of murder, as the offense was defined before the enactment of the statute. The division simply notices, concedes, that the atrociousness of the crime may be greater or less according to conditions and surroundings, and the punishment to be inflicted should be greater in some instances than in others. Many of the States of the Union have statutes similar to ours, and a majority of the courts sustain the sufficiency of bills of indictment that do not contain the averment of premeditation and deliberation.

The question has not been directly raised in this Court, but in a number of cases that have been before us, since the act of 1893, our attention has been called to the form of the indictment, and none of the judges, so far as this writer knows, has had doubts about the sufficiency of such indictment. The point was virtually decided in S. v. Covington,117 N.C. 866. We think the ruling of his Honor in refusing to have the judgment arrested for insufficiency of the indictment (1075) was correct. Whatever difference of opinion may have existed in regard to the construction of Laws 1893, ch. 85, before or at the time of the decision of Fuller's case, it is now conceded that by the statute the crime of murder in the second degree is as at common law, which is defined to be: "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethought, either express or implied." Blk. Com., star p. 195. To constitute murder in the first degree, since the passage of the statute, the same elements are requisite, with the additional and essential one of "premeditation and deliberation." That from the use of a deadly weapon, either proved or admitted, the law implies malice, and the burden is upon the prisoner to show, if he can, matter in excuse, justification, or mitigation. It is the duty and incumbent upon the State, if it will ask for a conviction of murder in the first degree, to prove "premeditation and deliberation." They will not be presumed or implied from the use of a deadly weapon. S. v. Fuller, 114 N.C. 885; S. v. Rhyne,124 N.C. 847.

The present Chief Justice, who dissented in Fuller's case and Rhyne'scase, said in his dissenting opinion in the last-named case, in speaking of the construction placed on the act in Fuller's case: "Having reiterated it since, we must take it now as settled." These decisions, however, also hold that no particular length of time is necessary to constitute premeditation,124 N.C. 857. The court will not undertake to prescribe any arbitrary rule defining the time during which it is necessary that the prisoner "premeditate and deliberate." In the several cases which have come before this Court upon appeal, it has adhered to this construction of the statute, the division of opinion among its members being in regard to the question whether there was or was not evidence of "premeditation and deliberation."

We assume that it is also well settled that if one, attempting (1076) to commit a premeditated and deliberate murder, shall, while in the act, and as a result of it, kill another, he will in respect to the person killed be guilty of murder in the first degree; as if one lay poison for A and it is taken by B, from which he dies, it is murder in the first degree; or if one, of malice, either express or implied, but without premeditation, be in the act of killing A, and while in the act and as a result thereof he kill B, it is murder in the second degree. In both these cases, however, there must be a legal connection or relation between the original purpose and act and the unexpected result. In a certain sense, of course, every act is related to every other and preceding act of a human being; but the law, being based upon principles applicable to the practical transactions of human life, avoids impracticable scholastic refinements and adopts such rules as experience has shown to be capable of practical application.

His Honor charged the jury: "If the killing of Stevens was not the result of an effort to kill Clements, but was intentionally done, then the prisoner could not be convicted of murder in the first degree, for such killing, unless the jury find beyond a reasonable doubt that the prisoner, before the shooting, coolly determined to kill Stevens, and had deliberated and premeditated on it, and as a result had formed a fixed purpose to kill; in other words, to convict a prisoner of murder in the first degree, you must be satisfied beyond a reasonable doubt either that the prisoner had with deliberation and premeditation formed a fixed purpose in his mind, before he shot, to shoot and kill Clements, and, in an effort to do so, killed Stevens, or he had with deliberation and premeditation formed a fixed purpose to kill Stevens, and in pursuance of such fixed, determined, premeditated, and deliberate purpose he did kill Stevens; in either of these (1077) stituations [situations], he would be guilty of murder in the first degree."

We are not inadvertent to the difficulty which is always involved in the question whether testimony is of sufficient probative force to constitute evidence, or whether it is a mere scintilla. The rule is clear that testimony must be sufficient to do more than raise a mere conjecture or suspicion. The difficulty is found in applying it to particular cases as they arise. Certainly, this Court will not interfere with the conclusion of a judge and a jury that there was not only some but sufficient evidence to bring the mind to a conclusion of guilt beyond a reasonable doubt, except in a very clear case of error. In this case, with the full statement of the uncontradicted testimony of an eye-witness, which is consistent and bears the impress of truth, we are forced to the conclusion that there was not sufficient evidence that the prisoner killed the deceased "in an effort to kill Clements, or that he had with deliberation and premeditation formed a fixed purpose to kill Stevens."

We do not pass upon or express an opinion in regard to his purpose to kill Clements, but assuming for the sake of the argument that he had done so, he did not have his pistol pointed towards him, but, as Stevens came in, "he raised his pistol." The position of Clements at the moment that Stevens came in the car rendered it impossible for the prisoner to shoot at him and hit Stevens. Clements says expressly that, as Stevens came in, the prisoner raised his pistol and shot. The coming in of Stevens, who was doubtless attracted by what had occurred and the noise, was a separate and independent incident in the transaction; it bore no legal relation to the then condition of the parties; it was the intervention of a new element or agency, and brought about an unexpected and, in a legal sense, independent result. The shooting of Stevens by the prisoner was without necessity. He was not armed; his evident purpose was to interfere and aid the conductor and porter in compelling the prisoner and those with him to behave themselves; he was free from blame. The prisoner, (1078) by his prayer for instructions, prepared by faithful, able, and learned counsel, concedes that he is guilty of murder in the second degree, which excludes all idea of excuse.

While we adhere to the decisions of this Court that it is not necessary that any "particular time" shall elapse for the prisoner to meditate and deliberate, yet the very term necessarily involves the idea that there must be some time, however short, between the first conscious conception and the completion of a purpose or determination in his mind. Fitz James Stephens, in his "History of the Criminal Law of England," gives an interesting account of the efforts made by the sages of the law to work out a satisfactory definition of "malice," "malice aforethought," and "malice prepense." The author suggests that he has solved the difficulty in his "Digest." The conclusion to which we are brought is that it affords another of the many illustrations of the poverty of language in giving expression to mental conceptions. We find that the words "foresight," "forethought," "forecast," and "premeditation" are used as synonyms. "A man shows his want of premeditation who acts or speaks on the impulse of the moment."

It is impossible to conceive of an act committed under the conditions described by Clements, in the killing of the deceased, as being the result of "premeditation and deliberation," or the expression of a "fixed purpose." Of course, it is for the jury by their verdict to fix the degree, but it is not contemplated that they shall do so arbitrarily or in accordance with their opinion as to the kind or quantum of punishment which should be inflicted. Their verdict must be based upon competent evidence under a fixed rule of law. In some States of the Union the question of punishment is left with the jury. Such has never been the purpose or the policy of the Legislature of this State.

We should, in accordance with the example set by those who (1079) have preceded us, have been content to conclude this opinion with the declaration of the law of the case and our reasons therefor, but for the suggestion urged upon us that, in some way, we are giving encouragement to lawlessness and "lynching." The very remarkable suggestion is made and seriously insisted upon, that it is our duty in the decision of this case to consult criminal statistics, newspaper reports of lynchings and threats thereof, that we may be the better enabled to know and declare what the law is by doing so. Just how, or by what mental process, this Court is to be enlightened in this way, we are not very clearly advised. Nor can we conjecture what certain persons or classes of persons may say or do, because we have, in the discharge of our duty, adjudged the prisoner to be entitled to a new trial. "Such an argument should not be addressed to courts, which cannot make, but only construe and administer the law as it is written. If worthy of consideration, it should be directed to the Legislature as a reason for changing the law." This is the language of a great and learned judge, (Bynum, J., in Bank v. Green,78 N.C. 247). To the suggestion that the construction put upon the statute in Fuller's case, decided in 1894, is "unfortunate," we note that the personnel of this Court has since that time undergone many changes, and the case has at almost every term been cited with approval, and conceded to be the controlling authority for this Court. It is also worthy of note that the Legislature has met at five different sessions, and the law in this respect has not been changed. We have no other means of ascertaining what the law is. The conclusion which we have reached is sustained by the uniform current of decisions of this Court, and our best consideration, guided not by criminal statistics, frequently misleading, nor by an attempt to ascertain or direct public sentiment, but by a determination "to administer justice without (1080) respect to persons, and to do equal rights to the poor and rich, to the State and to individuals." Whether such suggestions (which do not come from counsel), that the judges, either from incapacity to know the law or mental bias or sentimental weakness, are inefficient or incompetent, are calculated to suppress lawlessness, is well worthy serious consideration. If we are to have a "government of law and not of men," the courts must be content to move in the orbit assigned to them by the Constitution, declaring the law as it is written, "knowing nothing of the parties, everything about the case." When we "go outside of the record" to decide causes we invite counsel to address to us arguments fit for other forums than this, and ourselves embark into unknown and unsafe waters. The law, instead of being a fixed "rule of action" for the guidance of the citizen and protection of his life, liberty, and property, becomes the expression of the opinion of men set in high judicial position, varying according to the drift of public sentiment or temporary conditions. This is not the example or teaching of the elders. We will not do the people of this State the injustice to believe that they desire their judges to construe the law otherwise than it is written by themselves, or to hasten any man, however degraded or humble, to his death in accordance with arguments drawn from other sources than the "law of the land."

We think that the prisoner was entitled to have the jury instructed, as prayed by him, that there was no evidence of murder in the first degree, and that, for the refusal to give it, he is entitled to a

New trial.