Opinion
(Filed 25 May, 1910.)
1. Murder — Previous Quarrel — "Bad Blood" — Evidence.
Upon a trial for murder, it is competent to show that the deceased and the prisoner had a quarrel previous to the killing, as evidence of bad blood between the parties.
2. Murder — Confusing Degrees — Instructions — Charge — Harmless Error.
Upon a trial for murder, an incorrect instruction of the trial judge in the first of the charge, confusing murder in the second degree with murder in the first degree, the accused having been convicted of murder in the second degree, is not reversible error, his Honor having thereafter correctly charged thereon in several parts of his charge so as to render it impossible that the jury could have been misled.
APPEAL by defendant from J. S. Adams, J., at November Term, 1909, of BUNCOMBE.
Attorney-General Bickett, George L. Jones and Frank Carter for the State.
Moore Rollins, Gudger McElroy and Craig, Martin Thomason for defendants.
The defendants were indicted for the murder of Arthur Franklin, and convicted of murder in the second degree. From the judgment rendered, the defendant M. H. Tweed appealed.
The typewritten record in this case embraces 174 pages, and there are twenty-three exceptions, all of which have been examined. There is only one exception to the admissibility of evidence, and that relates to the admission of testimony in regard to the previous quarrel on Saturday night between Major Tweed and Arthur Franklin. This was clearly competent to show bad blood between the parties. The remaining exceptions (except those purely formal and those relating to the service of case on appeal) appertain to the charge of the court, which is set out in full in the record. (844)
We are of opinion that the charge is full and correct and follows carefully the well-settled decisions of this Court. A discussion of them again is unnecessary in an opinion.
It is true, his Honor defined murder in the second degree as the felonious killing of a human being, in the first of his charge, but immediately thereafter he defined it correctly, as follows: "Murder in the second degree is the felonious killing of a human being in the peace of the State, by a person of sound memory and discretion, with malice aforethought; and this malice may be either express or implied." This was repeated again in the charge. We do not think it possible that the jury could have been misled.
There is abundant evidence to justify the verdict of the jury, and we find no error of sufficient importance to warrant us in ordering another trial.
No error.
Cited: S. v. McKenzie, 166 N.C. 294.
(845)
MEMORANDUM CASES
SPRING TERM, 1910.
The following cases were affirmed by per curiam orders:
OWENS v. NAVIGATION COMPANY (appellant), from Chowan. February 24. W. S. Privott and W. M. Bond for plaintiff; Pruden Pruden for defendant.
STATE v. FAIRCLOTH (appellant), from Sampson. March 16. Attorney-General for State; Fowler Crumpler for defendant.
MONROE (appellant) v. OWEN, from Cumberland, April 6, Sinclair Dye for plaintiff; A. S. Hall for defendant.
BUCHANAN (appellant) v. BUCHANAN, from Lee. April 6. H. F. Seawell for plaintiff; Seawell McIver for defendant.
GRESHAM MANUFACTURING COMPANY v. CARTHAGE BUGGY COMPANY (appellant), from Moore. April 6. Aycock Winston for plaintiff; H. F. Seawell and U. L. Spence for defendant.
SIKES v. WILLIAMS (appellant), from Union. April 6. Redwine Sikes for plaintiff; J. J. Parker for defendant.
MANUFACTURING COMPANY v. R. R. (appellant), from Guilford. April 13. Justice Broadhurst for plaintiff; Wilson Ferguson for defendant. Affirmed on authority of Wall-Huske Co. v. R. R., 147 N.C. 407.
STATE v. CATON (appellant), from Mecklenburg. May 4. Attorney-General and G. L. Jones for State; T. A. Adams for defendant.
STATE v. KILGORE (appellant) from Henderson. May 17. Attorney-General and G. L. Jones for State; no counsel contra.
STATE v. SMITH (appellant), from Burke. May 17. G. L. Jones for plaintiff; A. A. Whitener, R. L. Huffman and J. M. Mull for defendant.
PADGETT (appellant) v. R. R., from Rutherford. May 17. B. A. Justice and R. S. Eaves for plaintiff; J. D. Shaw, Ryburn Hoey and Murray Allen for defendant.
(846) WILLIAMS v. BRANCH (appellant), from Burke. May 17. Avery Avery for plaintiff; S. J. Ervin, J. F. Spainhour and J. M. Mull for defendant.
EARLY (appellant) v. R. R., from Buncombe. May 25. Zebulon Weaver, Gay Weaver and Craig, Martin Thomason for plaintiff; Moore Rollins for defendant. Affirmed on authority of Vassar v. R. R., 142 N.C. 69.
STEVENS (appellant) v. R. R., from Madison. May 25. C. B. Marshburne and Gudger McElroy for plaintiff; Moore Rollins for defendant.
REDMOND (appellant) v. R. R., from Buncombe. May 25. Frank Carter and H. C. Chedester for plaintiff; Craig, Martin Thomason for defendant.
COWAN v. WARD (appellant), from Swain. May 25. A. M. Fry and G. L. Jones for plaintiff; F. C. Fisher for defendant.
COZAD v. McADEN, petitioner, from Graham. April 22. Zebulon Weaver and J. D. Murphey for plaintiff; Tillett Guthrie, Merrick Barnard and Dillard Bell for defendant. Petition to dismiss by consent.
STATE v. BLIZZARD (appellant), from Duplin. May 25. Attorney-General for State; Stevens, Beasley Weeks for defendant.
STATE v. LEWIS (appellant), from Nash. Attorney-General for State; T. T. Thorne for defendant. Motion to reinstate appeal denied.