The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-20
STATE CASES HEARD
The turkey Case" and
Appeal of Preston
Daniel Argued.

In the supreme Court yesterday ar
gument was heard in two homicide
| cases of some general interest.
The first of these was the case Of
State VS.. w. p. Horton, from Frank
lin county, which is of an extraordi-
nary character and has become bet
ter known as the wild turkey case"
While Horton was engaged in hunt
ing in Franklin county during the
month of November, 1904, he fired
in the woods at what he supposed
was a wild turkey the commotion in
the bushes having in fact been made
by one Charlie Hunt, in whose body
the load took effect, and from which
he died. Horton was indicted for
the killing and was tried at April
term, 1905, by Judge Council and
jury, which returned special YER
dict by consent setting forth that the
defendant at the time of the homi-
eide was hunting turkeys on the land
of another in violation of chapter 41O,
of the laws of 1901, he not having
the written permission or consent of
the owner of the land; that while Sc
hunting he killed Charlie Hunt, but
that such killing was wholly uninten-
tional; that the hunting engaged in
was not of itself dangerous to human
life, and that the defendant was not
criminally careless in the use of his
gun 80 as to imply any moral tur-
pitude or to indicate any Indifference
as to the safeguarding of human life.
The jury found that, if upon these
facts the court should find that the
defendant was guilty of manslaughter,
the jury so found: that if court
should find him not guilty, the jury
SO found.
Judge Council on the special verdict
found that since the chapter of the
Acts of 1901 referred to- applying to
the counties of Orange, Franklin and
Scotland was violated by the defend
ant at the time of the killing, he was
engaged in the doing of an unlawful
act at the time and was therefore
guilty of manslaughter
The minimum penalty of four
months in Jail was imposed and the
defendant appealed.
The argument yesterday was made
by the Attorney General for the State,
and f. S. Spruill, Esq, for the de-
PENDANT, and hinged on the question
of the distinction between mala pro-
hibita and nahum per se-that is,
whether the mere violation of
statute of a local character was such
breaking of the criminal laws as
under the old rule for killing grow
ing out of such violation. The State
contended that the distinction no
longer existed in law; the defend
ant that it did and that the circum-
stances of the killing fell under the
rule.
Preston Daniel In Jeopardy.
The other State case was the capital
nf hn Daniel
from Martin. Defendant was con-
victed of murder in the first degree.
The only question on appeal was
whether the evidence offered was suf
ficient to support a verdict of muir
der in the first degree.
The facts were as follows: The
shooting occurred on an excursion.
When the train arrived at Parmale,
Daniel got off and went to bar-room
after whiskey. When he returned he
found Eborn in the seat he had left
talking to Gertrude Little, who was
his companion on the excursion. Pris-
oner said to deceased that he did not
like him to be talking TO his girl when
he was out Deceased got up and
took q seat across the car, remarking
as he sat down that this was a
''diabose" crowd WhereupOn pris-
oner took a pistol from his left-hand
pocket passed it around his back to
his right hand and, without rising, |
cried, look out and shot the de- |
ceased i'm the head.
AS he left the car the prisoner com |
menced to sing what is termed in the
brief of the State a "droll song" the
words being, I'm Gwine Where |
Amt Never Been Before"
Deceased died in an hour after be- |
ing shot. The appeal was that of a !
pauper and Daniel was not represent |
ed by counsel in the Supreme Court. |
The State contended that the evidence |
was sufficient to support the verdict, |
it being immaterial how long the pre-
meditated intention of killing had been |
formed and that theory of premedita- |
ton was strengthened by the indiffer-
ence shown by the prisoner in the |
singing of the song as he walked away |
after the homicide.
There seems to have been in the !
whole case no attempt at explanation |
of the remark of the deceased that |
the crowd was "diabose.' There is no |
contention that the expression had
any insulting significance known to
the prisoner which would tend to ex-
cite him or rouse his anger to the I
point Of taking life.
Other Appeals and Fifth District
Docket.
Other appeals argued yesterday
were State VS.. Telfair, by Attorney
General for State; Person for defend
ant Gotten VS.. Bradley, Gillian for
plaintiff; Fountain for defendant.
Hughes VS.. Warehouse Co, by Spruill
and Ruffin for plaintiff; Beckett and
Gait for defendant. Peacock VS..
Barnes, by F. A. Woodland, Pou q
Finch for plaintiff; Conner q Connor
for defendant. (Connor }. did not
sit on the hearing of this case) Sher-
rod VS.. Insurance Co., by Thorne for
plaintiff; Stubs for defendant. Bum
VS.. Braswell, by Spruill for plaintiff;
Grantham for defendant. The case OF
Marlborough VS. Hughes Will be ar
gued today by Person and HICKS Tor