The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-01-10
STATE V. CASTLE and GARLAND, ap-
DallantS From pvrkp No.. trial

STATE V. CASTLE and GARLAND, APP
pellants. From Burke. New trial.
| Where tire general character Of a de-
PENDANT In III indictment for murder IS
put in issue only by his testifying as
witness, his character can be attacked
only by proving common report or repu-
| tation.
The right Of self-defense depends upon
the use of such force as reasonably APP
pears to be necessary. and the doctrine
of "molliter manus" cannot apply where
no phase of the testimony tends to show
that it was possible for the prisoner.
with a reasonable regard for his own
safety. to resort to gentle and mild
means.
| Where, from the evidence on trial of
an indictment for INJURED, it is possible
for the jury. If they believe the same,
to find only that there was a deadly as
sault upon the prisoner. it is error to
charge them that "If the provocation be
great it will be manslaushter: but if the
provocation be but slight and the killing
be done out of all proportion to the pro-
vocation it will be murder in the second
degree"
The prisoners appealed from a con-
viction of murder in the second degree.
One OF them (Castle) was local manager
of a lumber camp and the two persons
killed by him (Dockery and Fortner) were
his employees From the evidence it APP
peared that Dockery left work early
in the afternoon and returned to camp
because dinner had not been served to
the squad to which he belonged, accord
| ing to the custom Of the camp, and that
between that time and night Dockery and
Fortner became intoxicated and riotous.
and several times threatened the life of
the prisoner Castle, and that Castle was
informed OF such threats; that after Dock
cry and Fortner had shot several times
through the floor OF the room and defed
Castle, the prisoners and others went to
| the room of the deceased persons to give
them their "time" and notify them of
their discharge; the prisoner Castle hand
ed Dockery an envelope and said Here,
boys, is your time Fortner was sitting
on the bed with a pistol in his hand and
Dockery had a knife in his hand; the
prisoner Garland grabbed the pistol in
Formers rand and a scuffle ensued, and
the deceased Dockery attacked Garland
with his knife. and Fortner endeavored
to shoot Garland, whereupon Castle shot
Portner twice mad then turned upon Dock
cry who was endeavoring to cut Gar
land. and shot him twice.
A witness testified that whiskey drink
ing was against the rules of the camp, and
also testified under objection, that the
prisoner Castle drank; Held error76 N.
C. 216; 10 ~ c. 2O9; 100 N. C. 1856; 1O7
N. G. $40.
The court gave the prisoners instruc-
! lions that if when Castle approached
, the deceased and handed one OF them
his time giving him notice of discharge,
the deceased drew a weapon and attemp-
ted to assault the prisoners. that the
prisoners we're Justified in meeting force
with force" ETC.; that if Castle was
where he had a right to be he was not
required to retreat to the wall, etc. but
| the court added "the fury are to judge
of the force necessary, and not the pris
oners."
| Held error, quoting State V. Turpin. n
n. c. 477. where one is drawn into a
deadly combat he is obliged to estimate
the danger in which he has been placed
and the kind and degree of resistance
necessary to his defense" Before the
| jury shall be required to say whether the
prisoner did anything more than a reason
able man should have done under the
circumstances. it should, as far as can,
be placed in the prisoners situation
The court also charged the jury in
substance that it was incumbent upon
| the prisoners to use first gentle and mild
means, and if he and those with him used
unreasonable and unnecessary force and
the deceased might have been elected
without such violent force. the prison
ers would be guilty of murder in the
second degree; Held error The doctrine
of ''molliter manus" does not apply, as
there was no phase of the testimony
tending to show that they could have used
gentle or mild means in performing their
mission.
| Held further that it was the duty of
the court to instruct the jury that the
prisoners could rely upon the States evil
dence to show mitigation of the grade
of the homicide or for an acouittal, with
out introducing other testimony, and that
| if the jury found that the prisoners were
endeavoring to discharge their duty and
reasonably apprehend from the conduct
of the deceased persons that they would
execute their threats and continue their
bad conduct, it was the duty Of the pris-
oners to rid the camp of the deceased.
and it was but common prudence to use
sufficient number of men to repress
further violence by the deceased.
STATE v, BEGAN, appellant. From
Arson. Affirmed.
Upon trial Of an Indictment for murder,
the evidence was that the deceased in
company with two other men passed the
prisoner on the street at night, and the
prisoner made an insulting response to
friendly greeting from the deceased. where
upon the deceased remarked 81 do not
like to take that but was persuaded by
his companions to go on and they were
followed by the prisoner a short distance
when one of the persons with the de-
ceased, told the prisoner to go back,
whereupon the prisoner cursed them, and
when the deceased said 81 do not like
to take that" and pulled off his glove,
the prisoner shot him; Held to constitute
murder IN the first degree
The granting of a new trial for mis-
conduct of the jury is within the discre-
ton OF the trial judge when it appears
/ only that there WAS an onnortunifv RI IN