The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-11-01
Slayer of Cawthorn Given a
New Trial.
FOUR OPINIONS WRITTEN.
COURTS OPINION BY NUDGE
MONTGOMERY
JUDGES DOUGLAS AND FURCHES CONCUR
4 Strong 0isse ting Opinion by Justice Clark,
Who Last May Wrote Similar Dissent
in the Rhy Case from Castor
County,.

County.
A new trial has been granted by the
Supreme court to Thomas Smith, the
negro who last Christmas, at his HON,
near Selma, killed white man named
>Cawthorn and dangerously wounded
another named Winfrey.
The court grants new trial on the
ground that under the law dividing
murder into two degrees, the evidence
WAS not sufficient to justify the judge.
charge to the jury that the killing wa,
with deliberation and generalization.
The negro, it will be remembered, LIVED
near Selma. He with his wife, father
town when three white men, Charlie.
Cawthorn, Graham Garner and Thos
Winfrey came along the public road
wearing masks, firing Il pistol and shoot
ing off fire works.
AS they We're about in front of Smith,
house, in the road, the negro rushed on
with Il butcher knife in his hand, ant
attacking the men, killed Cawthorn anC
dangerously wounded Winfrey.
Tor this homicide, Smith was tried a
the August term of Johnston Superio
court and convicted of murder in tn,
first degree From this sentence he ap
pealed, and yesterday the Supreme cour
granted him new trial
To do this required four opinions al
follows: The opinion of the court b.
Justice Montgomery, a concurring opin
ion by Justice Furches. another concur
ring opinion by Justice Douglas, and
dissenting opinion by Justice Clark.
Judge Montgomery, writing the opin
ion of the court relates the circumstances
of the killing very fully, reviews in de
tail the evidence and in conclusion, says
The testimony. instead of furnishing
evidence of malice or hatred against tn,
white race or against those masked per
SONS from which premeditation to xii
could be inferred, directly established
abjeet terror and fear on the part of tn,
prisoner for his personal safety Tn,
charge must have had most damagin.
effect upon the rights of the prisoner
for it directed the attention of the jur!
to a motive for the homicide in thu
prisoners breast, which the testimony il
all its bearings had not tended to prove.
JUSTICE CLARK DISSENTS.
Judge Clark in his dissenting opinion
says, among other things:
Il cannot concur that the prisoner has
not had a fair trial Three person:
passing along the public road on {
Christmas frolic fired off Roman candle
in his yard, and a pistol not far from his
house. Instead of making allowance fol
the customary exhileration of such oc
casions, he came out of his house, arm
ed with a butcher knife and made Q
sudden and furious murderous assault
killed one man and seriously, almost ia
tally, wounded another. The jury found
that this was not done in self-defence
nor in heat of blood upon provocation
OF these facts they were the sole
Judges"
There was evidence tending to show
that the mind of the prisoner who was
Il negro had been inhamed by reading
about the race troubles at Wilmington
and by having seen some of his race
maltreated by white men at Selma that
same afternoon. The prisoner had
stated that he had been reading about
the Wilmington troubles and thinking
about them till he could not sleep, and
that when he saw men in disguise he
thought they had come to kill him.
If under that wrong impression he
took up the butcher knife and came out
to all the white men. there was surely
some evidence to show generalization,
and that it was not the result Of sudden
prOvocation. 1t was not self defence,
but murder. The jury, not the prisoner,
We're to judge of the reasonableness Of
the apprehension and his Honor com
mitted no error III telling them that if
the ground of the prisoners apprehen-
sion, or his motive, was las the prisoner
himself had intimately prompted by the
occurrences at Wilmington, and the
rioting at Selma, this would be a cir
cumstance from which the jury might
infer generalization on his part. His
showed he had been thinking
over these matters with much intensity
Of feeling. Whether that thinking re-
suited in excessive and mistaken fear,
0r in malice, WAS for the jury, and either
motive caused the killing it was with
out legal cause on the part of the de-
ceased .eand was murder, not arousing
feelings of either Gear or revenge i'll his
race.
The judge. at least, was correct in
telling the jury It was a circumstance
from which the jury could infer premedi-
tation, l. g. killing on purpose and not
in self-defence or on sufficient proyoca-
ton and he told them no more.
Ills extraordinary and unjustifiable
assault might well have been caused by
such generalization and determination
resulting therefrom, either to ayenge
his race or prevent a repetition of such
incidents toward himself. Neither the
statutes nor the decisions OF this court
restrict murder in the first degree to
that deliheration which is used when the
killing is by lying in wait or by the adj
ministration of poison. =
Whenever public opinion demands it.
the Legislature can and will abolish